exv10w1






Exhibit 10.1







 

 








CREDIT AGREEMENT




Dated as of January 25, 2011



by and among



EXIDE TECHNOLOGIES

and the certain Subsidiaries thereof,

as US Borrowers,



EXIDE GLOBAL HOLDING NETHERLANDS C.V.,

as Foreign Borrower,



THE LENDERS THAT ARE SIGNATORIES HERETO,



WELLS FARGO CAPITAL FINANCE, LLC,

as Agent



 





DEUTSCHE BANK AG NEW YORK BRANCH,

SUNTRUST BANK

and

BARCLAYS CAPITAL,

as Syndication Agents



 





MORGAN STANLEY SENIOR FUNDING, INC.,

as Documentation Agent



 





WELLS FARGO CAPITAL FINANCE, LLC,

and

DEUTSCHE BANK SECURITIES INC.,

as Joint Bookrunners



 





WELLS FARGO CAPITAL FINANCE, LLC,

AS SOLE LEAD ARRANGER




 

 






 









 
















TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	1. DEFINITIONS AND CONSTRUCTION

	 	 	1	 
	1.1 Definitions

	 	 	1	 
	1.2 Accounting Terms

	 	 	1	 
	1.3 Code

	 	 	2	 
	1.4 Construction

	 	 	2	 
	1.5 Schedules and Exhibits

	 	 	3	 
	1.6 Exchange Rates; Currency Equivalents; Applicable Currency

	 	 	3	 
	2. LOANS AND TERMS OF PAYMENT

	 	 	3	 
	2.1 Revolver Advances

	 	 	3	 
	2.2 [Reserved]

	 	 	5	 
	2.3 Borrowing Procedures and Settlements

	 	 	5	 
	2.4 Payments; Reductions of Revolver Commitments; Prepayments

	 	 	12	 
	2.5 Overadvances

	 	 	19	 
	2.6 Interest Rates and Letter of Credit Fee: Rates, Payments, and Calculations

	 	 	20	 
	2.7 Crediting Payments

	 	 	21	 
	2.8 Designated Account

	 	 	22	 
	2.9 Maintenance of Loan Accounts; Statements of Obligations

	 	 	22	 
	2.10 Fees

	 	 	22	 
	2.11 Letters of Credit

	 	 	22	 
	2.12 LIBOR Option

	 	 	27	 
	2.13 Capital Requirements; Exchange Indemnification; Regulatory Limitation

	 	 	30	 
	2.14 Liability Among Loan Parties

	 	 	32	 
	2.15 Collection of Accounts; Cash Dominion

	 	 	34	 
	2.16 Circumstances Affecting Euro Availability

	 	 	37	 
	2.17 Increase Option

	 	 	37	 
	3. CONDITIONS; TERM OF AGREEMENT

	 	 	38	 
	3.1 Conditions Precedent to the Initial Extension of Credit

	 	 	38	 
	3.2 Conditions Precedent to all Extensions of Credit

	 	 	39	 
	3.3 Maturity

	 	 	39	 
	3.4 Effect of Maturity

	 	 	39	 






i









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page
	3.5 Early Termination by Borrowers

	 	 	40	 
	3.6 Conditions Subsequent

	 	 	40	 
	4. REPRESENTATIONS AND WARRANTIES

	 	 	40	 
	4.1 Due Organization and Qualification; Subsidiaries

	 	 	40	 
	4.2 Due Authorization; No Conflict

	 	 	41	 
	4.3 Governmental Consents

	 	 	41	 
	4.4 Binding Obligations; Perfected Liens

	 	 	42	 
	4.5 Title to Assets; No Encumbrances

	 	 	42	 
	4.6 Jurisdiction of Organization; Location of Chief Executive Office;
Organizational Identification Number; Commercial Tort Claims

	 	 	42	 
	4.7 Litigation

	 	 	43	 
	4.8 Compliance with Laws

	 	 	43	 
	4.9 No Material Adverse Change

	 	 	43	 
	4.10 Fraudulent Transfer

	 	 	43	 
	4.11 Employee Benefits

	 	 	43	 
	4.12 Environmental Condition

	 	 	45	 
	4.13 Intellectual Property

	 	 	45	 
	4.14 Leases

	 	 	46	 
	4.15 Deposit Accounts and Securities Accounts

	 	 	46	 
	4.16 Complete Disclosure

	 	 	46	 
	4.17 Material Contracts

	 	 	46	 
	4.18 Patriot Act

	 	 	47	 
	4.19 Indebtedness

	 	 	47	 
	4.20 Payment of Taxes

	 	 	47	 
	4.21 Margin Stock

	 	 	48	 
	4.22 Governmental Regulation

	 	 	48	 
	4.23 OFAC

	 	 	48	 
	4.24 Employee and Labor Matters

	 	 	48	 
	4.25 Eligible Accounts

	 	 	49	 
	4.26 Eligible Inventory

	 	 	49	 









ii









 








TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page
	4.27 Locations of Inventory and Equipment

	 	 	49	 
	4.28 Inventory Records

	 	 	49	 
	4.29 Trust

	 	 	49	 
	5. AFFIRMATIVE COVENANTS

	 	 	49	 
	5.1 Financial Statements, Reports, Certificates

	 	 	49	 
	5.2 Collateral Reporting

	 	 	50	 
	5.3 Existence

	 	 	50	 
	5.4 Maintenance of Properties

	 	 	50	 
	5.5 Taxes

	 	 	50	 
	5.6 Insurance

	 	 	51	 
	5.7 Inspections; Audits

	 	 	51	 
	5.8 Compliance with Laws

	 	 	52	 
	5.9 ERISA

	 	 	52	 
	5.10 Environmental

	 	 	54	 
	5.11 Disclosure Updates

	 	 	55	 
	5.12 Formation of Subsidiaries; Additional Real Property

	 	 	55	 
	5.13 Further Assurances

	 	 	56	 
	5.14 Lender Meetings

	 	 	57	 
	5.15 Material Contracts

	 	 	57	 
	5.16 Location of Inventory and Equipment

	 	 	57	 
	5.17 Foreign Borrower Holding Company

	 	 	57	 
	5.18 Unrestricted Subsidiaries

	 	 	58	 
	6. NEGATIVE COVENANTS

	 	 	58	 
	6.1 Indebtedness

	 	 	58	 
	6.2 Liens

	 	 	58	 
	6.3 Restrictions on Fundamental Changes

	 	 	58	 
	6.4 Disposal of Assets

	 	 	60	 
	6.5 Change Name

	 	 	60	 
	6.6 Nature of Business

	 	 	60	 
	6.7 Debt Payments and Amendments

	 	 	60	 






iii









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page
	6.8 Change of Control

	 	 	61	 
	6.9 Restricted Payments

	 	 	61	 
	6.10 Accounting Methods

	 	 	62	 
	6.11 Investments; Controlled Investments

	 	 	62	 
	6.12 Transactions with Affiliates

	 	 	62	 
	6.13 Use of Proceeds

	 	 	63	 
	6.14 Limitation on Issuance of Preferred Stock

	 	 	63	 
	6.15 Restrictions Affecting Subsidiaries

	 	 	63	 
	7. FINANCIAL COVENANT

	 	 	63	 
	8. EVENTS OF DEFAULT

	 	 	64	 
	9. RIGHTS AND REMEDIES

	 	 	68	 
	9.1 Rights and Remedies

	 	 	68	 
	9.2 Remedies Cumulative

	 	 	68	 
	10. WAIVERS; INDEMNIFICATION

	 	 	68	 
	10.1 Demand; Protest; etc.

	 	 	68	 
	10.2 The Lender Group’s Liability for Collateral

	 	 	69	 
	10.3 Indemnification

	 	 	69	 
	11. NOTICES

	 	 	70	 
	12. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER

	 	 	71	 
	13. ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS

	 	 	72	 
	13.1 Assignments and Participations

	 	 	72	 
	13.2 Successors

	 	 	76	 
	14. AMENDMENTS; WAIVERS

	 	 	76	 
	14.1 Amendments and Waivers

	 	 	76	 
	14.2 Replacement of Certain Lenders

	 	 	78	 
	14.3 No Waivers; Cumulative Remedies

	 	 	79	 
	15. AGENT; THE LENDER GROUP

	 	 	79	 
	15.1 Appointment and Authorization of Agent

	 	 	79	 
	15.2 Delegation of Duties

	 	 	81	 
	15.3 Liability of Agent

	 	 	81	 






iv









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page
	15.4 Reliance by Agent

	 	 	82	 
	15.5 Notice of Default or Event of Default

	 	 	82	 
	15.6 Credit Decision

	 	 	82	 
	15.7 Costs and Expenses; Indemnification

	 	 	83	 
	15.8 Agent in Individual Capacity

	 	 	84	 
	15.9 Successor Agent

	 	 	84	 
	15.10 Lender in Individual Capacity

	 	 	85	 
	15.11 Collateral Matters

	 	 	85	 
	15.12 Restrictions on Actions by Lenders; Sharing of Payments

	 	 	86	 
	15.13 Agency for Perfection

	 	 	87	 
	15.14 Payments by Agent to Lenders

	 	 	87	 
	15.15 Concerning the Collateral and Related Loan Documents

	 	 	87	 
	15.16 Audits and Examination Reports; Confidentiality; Disclaimers by Lenders;
Other Reports and Information

	 	 	87	 
	15.17 Several Obligations; No Liability

	 	 	89	 
	15.18 Intercreditor Agreement

	 	 	89	 
	16. WITHHOLDING TAXES

	 	 	89	 
	17. GENERAL PROVISIONS

	 	 	93	 
	17.1 Effectiveness

	 	 	93	 
	17.2 Section Headings

	 	 	93	 
	17.3 Interpretation

	 	 	93	 
	17.4 Severability of Provisions

	 	 	93	 
	17.5 Bank Product Providers

	 	 	93	 
	17.6 Debtor-Creditor Relationship

	 	 	94	 
	17.7 Counterparts; Electronic Execution

	 	 	94	 
	17.8 Revival and Reinstatement of Obligations

	 	 	94	 
	17.9 Confidentiality

	 	 	94	 
	17.10 Lender Group Expenses

	 	 	96	 
	17.11 Survival

	 	 	96	 
	17.12 Patriot Act

	 	 	96	 






v









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page
	17.13 Canadian Anti-Money Laundering & Anti-Terrorism Compliance

	 	 	96	 
	17.14 Integration

	 	 	97	 
	17.15 The Company as Agent for Borrowers

	 	 	97	 
	17.16 Judgment Currency

	 	 	97	 
	17.17 Conflicts with other Loan Documents

	 	 	98	 
	17.18 Special Provisions Regarding Pledges of Stock and Promissory Notes in
Non-Qualified Jurisdictions

	 	 	98	 






vi









 






EXHIBITS AND SCHEDULES




	 	 	 

	Exhibit A-1

	 	Form of Assignment and Acceptance
	Exhibit B-1

	 	Form of Borrowing Base Certificate
	Exhibit B-2

	 	Form of Bank Product Provider Letter Agreement
	Exhibit C-1

	 	Form of Compliance Certificate
	Exhibit L-1

	 	Form of LIBOR Notice
	Exhibit J-1

	 	Form of US Joinder Agreement
	Exhibit J-2

	 	Form of Foreign Joinder Agreement
	Exhibit S-1

	 	Form of Solvency Certificate
	 
	 	 
	Schedule A-1

	 	Agent’s Applicable Account
	Schedule A-2

	 	Authorized Persons
	Schedule C-1

	 	Revolver Commitments
	Schedule D-1

	 	Designated Accounts
	Schedule E-1

	 	Eligible Inventory Locations
	Schedule E-2

	 	Existing Letters of Credit
	Schedule E-3

	 	Historical EBITDA
	Schedule P-1

	 	Permitted Investments
	Schedule P-2

	 	Permitted Liens
	Schedule R-1

	 	Real Property Collateral
	Schedule 1.1

	 	Definitions
	Schedule 1.1A

	 	Mandatory Cost Formulae
	Schedule 3.1

	 	Conditions Precedent
	Schedule 3.1A

	 	Foreign Security Documents
	Schedule 3.6

	 	Conditions Subsequent
	Schedule 4.1(b)

	 	Capitalization of Borrowers
	Schedule 4.1(c)

	 	Capitalization of Borrowers’ Subsidiaries
	Schedule 4.6(a)

	 	States of Organization
	Schedule 4.6(b)

	 	Chief Executive Offices
	Schedule 4.6(c)

	 	Organizational Identification Numbers
	Schedule 4.6(d)

	 	Commercial Tort Claims
	Schedule 4.7

	 	Litigation
	Schedule 4.11

	 	ERISA
	Schedule 4.12

	 	Environmental Matters
	Schedule 4.13

	 	Intellectual Property
	Schedule 4.15

	 	Deposit Accounts and Securities Accounts
	Schedule 4.17

	 	Material Contracts
	Schedule 4.19

	 	Permitted Indebtedness
	Schedule 4.20

	 	Taxes
	Schedule 4.27

	 	Locations of Inventory and Equipment
	Schedule 5.1

	 	Financial Statements, Reports, Certificates
	Schedule 5.2

	 	Collateral Reporting







vii











 





CREDIT AGREEMENT




          THIS CREDIT AGREEMENT (this “Agreement”), is entered into as of January 25, 2011, by
and among Lenders identified on the signature pages hereof (each of such lenders, together with
their respective successors and permitted assigns, are referred to hereinafter as a
“Lender”, as that term is hereinafter further defined), WELLS FARGO CAPITAL FINANCE, LLC, a
Delaware limited liability company, as agent for Lenders (in such capacity, together with its
successors and assigns in such capacity, “Agent”), EXIDE TECHNOLOGIES, a Delaware
corporation (the “Company”), certain Restricted Subsidiaries of the Company (the “US
Subsidiary Borrowers” and, together with the Company, the “US Borrowers”) and EXIDE
GLOBAL HOLDING NETHERLANDS C.V., a limited partnership organized under the laws of the Netherlands
(the “Foreign Borrower” and, together with the US Borrowers, the “Borrowers”).




          The parties agree as follows:




1. DEFINITIONS AND CONSTRUCTION.




     1.1 Definitions. Capitalized terms used in this Agreement shall have the meanings
specified therefor on Schedule 1.1.



     1.2 Accounting Terms. All accounting terms not specifically defined herein shall be
construed in accordance with GAAP; provided, however, that (i) if any Borrower
notifies Agent that such Borrower requests an amendment to any provision hereof to eliminate the
effect of any Accounting Change occurring after the Closing Date or in the application thereof on
the operation of such provision (or if Agent notifies any 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 Accounting Change or in the application thereof, then Agent
and such Borrower agree that they will negotiate in good faith amendments to the provisions of this
Agreement that are directly affected by such Accounting Change with the intent of having the
respective positions of Lenders and such Borrower after such Accounting Change conform as nearly as
possible to their respective positions as of the date of this Agreement and, until any such
amendments have been agreed upon, the provisions in this Agreement shall be calculated as if no
such Accounting Change had occurred, (ii) to the extent expressly required pursuant to the
provisions of this Agreement, certain calculations shall be made on a pro forma
basis, and (iii) for purposes of determining compliance with any incurrence or expenditure tests
set forth in Sections 5, 6 and 7, any amounts so incurred or expended (to
the extent incurred or expended in a currency other than Dollars) shall be converted into Dollars
on the basis of the exchange rates (as shown on the Bloomberg currency page for such currency or,
if the same does not provide such exchange rate, by reference to such other publicly available service for displaying exchange rates as may be reasonably selected by Agent or, in the event no
such service is selected, on such other basis as is reasonably satisfactory to Agent) as in effect
on the date of such incurrence or expenditure under any provision of any such Section that has an
aggregate Dollar limitation provided for therein (and to the extent the respective incurrence or
expenditure test regulates the aggregate amount outstanding at any time and it is expressed in
terms of Dollars, all outstanding amounts originally incurred or spent in currencies other than
Dollars shall be converted into Dollars on the basis of the exchange rates (as shown on the
Bloomberg currency page for such
currency or, if the same does not provide such exchange rate, by
reference to such other publicly



 









 







available service for displaying exchange rates as may be reasonably selected by Agent or,
in the event no such service is selected, on such other basis as is reasonably satisfactory to
Agent) as in effect on the date of any new incurrence or expenditures made under any provision of
any such Section that regulates the Dollar amount outstanding at any time). Notwithstanding the
foregoing, all financial statements delivered hereunder shall be prepared, and all financial
covenants contained herein shall be calculated, without giving effect to any election under the
Statement of Financial Accounting Standards No. 159 (or any similar accounting principle)
permitting a Person to value its financial liabilities or Indebtedness at the fair value thereof.
When used herein, the term “financial statements” shall include the notes and schedules thereto.



     1.3 Code. Any terms used in this Agreement that are defined in the Code shall be
construed and defined as set forth in the Code unless otherwise defined herein; provided,
however, that to the extent that the Code is used to define any term herein and such term
is defined differently in different Articles of the Code, the definition of such term contained in
Article 9 of the Code shall govern.



     1.4 Construction. Unless the context of this Agreement or any other Loan Document
clearly requires otherwise, references to the plural include the singular, references to the
singular include the plural, the terms “includes” and “including” are not limiting, and the term
“or” has, except where otherwise indicated, the inclusive meaning represented by the phrase
“and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Agreement
or any other Loan Document refer to this Agreement or such other Loan Document, as the case may be,
as a whole and not to any particular provision of this Agreement or such other Loan Document, as
the case may be. Section, subsection, clause, schedule, and exhibit references herein are to this
Agreement unless otherwise specified. Any reference in this Agreement or in any other Loan
Document to any agreement, instrument, or document shall include all alterations, amendments,
changes, extensions, modifications, renewals, replacements, substitutions, joinders, and
supplements, thereto and thereof, as applicable (subject to any restrictions on such alterations,
amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders,
and supplements set forth herein). 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. Any reference herein or in any other
Loan Document to the satisfaction, repayment, or payment in full of the Obligations shall mean the
repayment in full in cash or immediately available funds (or, (a) in the case of contingent
reimbursement obligations with respect to Letters of Credit, providing Letter of Credit
Collateralization, and (b) in the case of obligations with respect to Bank Products (other than
Hedge Obligations), providing Bank Product Collateralization) of all of the Obligations (including
the payment of any termination amount then applicable (or which would or could become applicable as
a result of the repayment of the other Obligations) under Hedge Agreements provided by Hedge
Providers) other than (i) unasserted contingent indemnification Obligations, (ii) any Bank Product
Obligations (other than Hedge Obligations) that, at such time, are allowed by the applicable Bank
Product Provider to remain outstanding without being required to be repaid or cash collateralized,
and (iii) any Hedge Obligations that, at such time, are allowed by the applicable Hedge Provider to
remain outstanding without being required to be repaid. Any reference herein to any Person shall
be construed to include such Person’s successors and permitted assigns. Any requirement of a



2









 




writing contained herein or in any other Loan Document shall be satisfied by the transmission
of a Record.




     1.5 Schedules and Exhibits. All of the schedules and exhibits attached to this
Agreement shall be deemed incorporated herein by reference.



     1.6 Exchange Rates; Currency Equivalents; Applicable Currency.



          (a) For purposes of this Agreement and the other Loan Documents, references to the applicable
outstanding amount of Advances, Swing Loans, Letters of Credit, Revolver Usage or Letter of Credit
Usage shall be deemed to refer to the Dollar Equivalent thereof.




          (b) For purposes of this Agreement and the other Loan Documents, the Dollar Equivalent of any
Advances, Letters of Credit, other Obligations and other references to amounts denominated in Euros
or the lawful currency of any jurisdiction of a Foreign Loan Party or a Pledgor shall be determined
in accordance with the terms of this Agreement in respect of the most recent Revaluation Date.
Such Dollar Equivalent shall become effective as of such Revaluation Date for such Advances,
Letters of Credit and other Obligations and shall be the Dollar Equivalent employed in converting
any amounts between the applicable currencies until the next Revaluation Date to occur for such
Advances, Letters of Credit and other Obligations. Except as otherwise expressly provided herein,
the applicable amount of any currency for purposes of the Loan Documents (including for purposes of
financial statements and all calculations in connection with financial covenants and the Borrowing
Base) shall be the Dollar Equivalent thereof.




          (c) Wherever in this Agreement and the other Loan Documents in connection with a borrowing,
conversion, continuation or prepayment of an Advance or the issuance, amendment or extension of a
Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in
Dollars, but such Advance or Letter of Credit is denominated in Euros, such amount shall be the
relevant Euro Equivalent of such Dollar amount (rounded to the nearest Euro, with 0.5 of a unit
being rounded upward), as reasonably determined by Agent, Swing Lender, or the Issuing Lender, as
the case may be.




          (d) For purposes of this Agreement and the other Loan Documents, all repayments, prepayments
or reimbursements with respect to Advances, Letters of Credit and other Obligations shall be made
in the currency applicable to such Advance, Letter of Credit or other Obligation except as
otherwise provided herein.




2. LOANS AND TERMS OF PAYMENT.




     2.1 Revolver Advances.



          (a) Subject to the terms and conditions of this Agreement, and during the term of this
Agreement:




               (i) each Lender agrees (severally, not jointly or jointly and severally) to make revolving
loans (“Advances”) denominated in Dollars or Euros in an aggregate amount (after giving
effect to such Advance) at any one time outstanding not to exceed the lesser of:



3









 





                    (A) such Lender’s Revolver Commitment, and



                    (B) such Lender’s Pro Rata Share of an amount equal to (1) the lesser of (x) the
Maximum Revolver Amount and (y) the Borrowing Base at such time minus (2) the sum of (x)
the Letter of Credit Usage at such time, plus (y) the principal amount of Swing Loans
outstanding at such time; and



               (ii) after giving effect to the making of any Advance:



                    (A) the US Revolver Usage shall not exceed (1) the US Borrowing Base minus (2) the
Foreign Borrowing Base Usage; and



                    (B) the Revolver Usage shall not exceed the lesser of (1) the Maximum Revolver Amount and (2)
the Borrowing Base at such time.


For purposes of this Section 2.1(a), the relevant Borrowing Bases will be based upon the
Borrowing Base Certificate most recently delivered in accordance with the terms of this Agreement.




          (b) Amounts borrowed pursuant to this Section 2.1 may be repaid and, subject to the
terms and conditions of this Agreement, reborrowed at any time during the term of this Agreement.
The outstanding principal amount of the Advances, together with interest accrued thereon, shall be
due and payable on the Maturity Date or, if earlier, on the date on which they are declared due and
payable pursuant to the terms of this Agreement.




          (c) Anything to the contrary in this Section 2.1 notwithstanding, Agent shall have the
right (but not the obligation) to establish, increase, reduce, eliminate, or otherwise adjust
reserves from time to time against the Borrowing Base in such amounts, and with respect to such
matters, as Agent in its Permitted Discretion shall deem necessary or appropriate, including,
without duplication, (i) reserves in an amount equal to the Bank Product Reserve Amount, (ii)
subject to the proviso in clause (d) of the definition of “Eligible Inventory”, Rent Reserves, and
(iii) reserves with respect to (A) sums that the Company is or its Subsidiaries are required to pay
under any Section of this Agreement or any other Loan Document (such as taxes, assessments,
insurance premiums, or, in the case of leased assets (other than Real Property), rents or other
amounts payable under such leases) and has failed to pay when due, (B) amounts owing by the Company
or its Subsidiaries to any Person to the extent secured by a Lien on, or trust over, any of the
Collateral (other than a Permitted Lien which is a permitted purchase money Lien or the interest of
a lessor under a Capital Lease), which Lien or trust, in the Permitted Discretion of Agent likely
would have a priority superior to Agent’s Liens (such as Liens or trusts in favor of landlords,
warehousemen, carriers, mechanics, materialmen, laborers, or suppliers, or Liens or trusts for ad
valorem, excise, sales, or other taxes where given priority under applicable law) in and to such
item of the Collateral; provided that the Agent may not implement reserves with respect to matters
which would be duplicative with ineligible Accounts or Inventory; provided further that with
respect to any leased or warehouse location of a Loan Party with respect to which a Collateral
Access Agreement has not been obtained, Agent may impose a reserve under either clauses (ii) or
(iii)(B) above, but not both, with respect to such location and any Collateral thereon, and (C)
Priority Payables.







4









 








     2.2 [Reserved].



     2.3 Borrowing Procedures and Settlements.



          (a) Procedure for Borrowing. Each Borrowing shall be made by a written request by an
Authorized Person of the Applicable Borrowers delivered to Agent. Such notice must be received by
Agent (1) in the case of Borrowings of Base Rate Loans by a US Borrower, no later than 12:00 noon
(New York time) on the Business Day that is the requested Funding Date, (2) in the case of
Borrowings of Base Rate Loans by the Foreign Borrower, no later than 12:00 noon (New York time) at
least 1 Business Day prior to the requested Funding Date, (3) in the case of Borrowings of LIBOR
Loans denominated in Dollars, no later than 12:00 noon (New York time) at least 3 Business Days
prior to the requested Funding Date or (4) in the case of Borrowings of LIBOR Loans denominated in
Euros, no later than 12:00 noon (New York time) at least 3 Business Days prior to the requested
Funding Date, specifying (i) the amount of such Borrowing, (ii) the requested Funding Date, which
shall be a Business Day, (iii) the Applicable Borrowers, (iv) if such Borrowing is to be
denominated in Dollars, whether such Borrowing shall be a LIBOR Rate Loan or a Base Rate Loan, (v)
if such Borrowing is a LIBOR Rate Loan, the duration of the Interest Period applicable thereto, and
(vi) whether such Borrowing is to be made in Dollars or Euros. At Agent’s election, in lieu of
delivering the above-described written request, any Authorized Person may give Agent telephonic
notice of such request by the required time. In such circumstances, each Borrower agrees that any
such telephonic notice will be confirmed in writing within 24 hours of the giving of such
telephonic notice, but the failure to provide such written confirmation shall not affect the
validity of the request. The Borrowing of any LIBOR Rate Loan shall be subject to the provisions
of Section 2.12.




          (b) Making of Swing Loans. In addition to Section 2.3(a), a Borrower may request a
Swing Loan in Euros upon written request by an Authorized Person of such Borrower, by no later than
12:00 noon (New York time) at least 1 Business Day prior to the requested Funding Date and, in the
case of a request for an Advance for a Borrowing of Base Rate Loans made pursuant to Section 2.3(a)
above, the applicable Borrower shall be deemed to have made a request for a Swing Loan in Dollars
and so long as in either case (i) the aggregate amount of Swing Loans made since the last
Settlement Date, minus the amount of Collections or payments applied to Swing Loans since
the last Settlement Date, plus the amount of the Swing Loan requested or deemed requested
does not exceed $25,000,000, or (ii) Swing Lender, in its sole discretion, shall agree to make a
Swing Loan notwithstanding the foregoing limitation, Swing Lender shall make an Advance in the
amount of such requested Borrowing (any such Advance made solely by Swing Lender pursuant to this
Section 2.3(b) being referred to as “Swing Loans”) available to (A) the applicable
US Borrower, in the case of US Swing Loans and (B) the Foreign Borrower, in the case of the Foreign
Swing Loans, on the Funding Date applicable thereto by transferring immediately available funds to
the applicable Designated Account. Anything contained herein to the contrary notwithstanding, the
Swing Lender may, but shall not be obligated to, make Swing Loans at any time that one or more of
Lenders is a Defaulting Lender. Each Swing Loan shall be deemed to be (1) a US Advance, in the
case of US Swing Loans or (2) a Foreign Advance, in the case of Foreign Swing Loans, and shall be
subject to all the terms and conditions (including Section 3) applicable to other Advances,
except that all payments on any Swing Loan shall be payable to Swing Lender solely for its own
account. Subject to the provisions of Section 2.3(d), Swing Lender shall not make and
shall not be obligated to make






5









 







any Swing Loan if Swing Lender has actual knowledge that (i) one or more of the applicable
conditions precedent set forth in Section 3 will not be satisfied on the requested Funding
Date for the applicable Borrowing, or (ii) the requested Borrowing would exceed the Excess
Availability on such Funding Date. Swing Lender shall not otherwise be required to determine
whether the applicable conditions precedent set forth in Section 3 have been satisfied on
the Funding Date applicable thereto prior to making any Swing Loan. The Swing Loans shall be
secured by Agent’s Liens, constitute Advances and Obligations hereunder, and bear interest at the
applicable Floating Rate. Immediately upon the making of a Swing Loan, each Lender shall be deemed
to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Lender a risk
participation in such Swing Loan in an amount equal to such Lender’s Pro Rata share of the amount
of such Swing Loan.




          (c) Making of Loans.




               (i) In the event that Swing Lender is not obligated to make a Swing Loan, then promptly after
receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify
Lenders, not later than 1:00 p.m. (New York time) on the date Agent receives notice of such
Borrowing, by facsimile, telephone, or other similar form of transmission, of the requested
Borrowing. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested
Borrowing available to Agent in immediately available funds in the applicable currency, to Agent’s
Applicable Account, not later than (A) with respect to Borrowings denominated in Dollars, 2:00 p.m.
(New York time) and (B) with respect to Borrowings denominated in Euros, 2:00 p.m. (London time),
in each case, on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of
such Advances, Agent shall make the proceeds thereof available to Borrowers on the applicable
Funding Date by transferring immediately available funds equal to such proceeds received by Agent
to the applicable Designated Account; provided, however, that, subject to the
provisions of Section 2.3(d)(ii), Agent shall not request any Lender to make, and no Lender
shall have the obligation to make, any Advance if (1) one or more of the applicable conditions
precedent set forth in Section 3 will not be satisfied on the requested Funding Date for
the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing
would exceed the Excess Availability on such Funding Date.



               (ii) Unless Agent receives notice from a Lender prior to (A) with respect to Borrowings
denominated in Dollars, 2:00 p.m. (New York time) and (B) with respect to Borrowings denominated in
Euros, 10:00 a.m. (London time), in each case, on the date of a Borrowing, that such Lender will
not make available as and when required hereunder to Agent for the account of the Applicable
Borrowers the amount of that Lender’s Pro Rata Share of the Borrowing, Agent may assume that each
Lender has made or will make such amount available to Agent in immediately available funds on the
Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make
available to the Applicable Borrowers on such date a corresponding amount. If any Lender shall not
have made its full amount available to Agent in immediately available funds and if Agent in such
circumstances has made available to the Applicable Borrowers such amount, that Lender shall on the
Business Day following such Funding Date make such amount available to Agent, together with
interest at the Defaulting Lender Rate for each day during such period. A notice submitted by
Agent to any Lender with respect to amounts owing under this Section 2.3(c)(ii) shall be
conclusive, absent manifest error. If such amount is so made available, such payment to Agent
shall constitute such Lender’s



6









 




Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not
made available to Agent on the Business Day following the Funding Date, Agent will notify the
Applicable Borrowers of such failure to fund and, upon demand by Agent, Borrowers shall pay such
amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the
date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to
the Advances composing such Borrowing.




          (d) Protective Advances and Optional Overadvances.




               (i) Any contrary provision of this Agreement or any other Loan Document notwithstanding, but
subject to Section 2.3(d)(iv), Agent hereby is authorized by Borrowers and Lenders, from
time to time in Agent’s sole discretion, (A) after the occurrence and during the continuance of a
Default or an Event of Default, or (B) at any time that any of the other applicable conditions
precedent set forth in Section 3 are not satisfied, to make Advances to, or for the benefit
of, Borrowers on behalf of Lenders that Agent, in its Permitted Discretion deems necessary or
desirable (1) to preserve or protect the Collateral, or any portion thereof, or (2) to enhance the
likelihood of repayment of the Obligations (other than the Bank Product Obligations) (any of the
Advances described in this Section 2.3(d)(i) shall be referred to as “Protective
Advances”), so long as after giving effect to such Protective Advances, the outstanding
Revolver Usage (except for and excluding amounts charged to the Loan Account for interest, fees, or
Lender Group Expenses) does not exceed the Maximum Revolver Amount. The Required Lenders may at
any time by written notice to the Administrative Agent (x) revoke Agent’s authority to make further
Protective Advances pursuant to this Section 2.4(d)(i) at any time when a Protective
Overadvance exists and (y) instruct Agent to demand repayment of outstanding Protective Advances
from the Loan Parties. Absent such revocation, Agent’s determination that funding of a Protective
Advance is appropriate shall be conclusive.



               (ii) Any contrary provision of this Agreement or any other Loan Document notwithstanding, but
subject to Section 2.3(d)(iv), Lenders hereby authorize Agent or Swing Lender, as
applicable, and either Agent or Swing Lender, as applicable, may, but is not obligated to,
knowingly and intentionally, continue to make Advances (including Swing Loans) to Borrowers
notwithstanding that an Overadvance exists or thereby would be created, so long as (A) after giving
effect to such Advances, the outstanding Revolver Usage does not exceed the Borrowing Base by more
than 10% of the lesser of (1) the Maximum Revolver Amount and (2) the Borrowing Base, and
(B) after giving effect to such Advances, the outstanding Revolver Usage (except for and excluding
amounts charged to the Loan Account for interest, fees, or Lender Group Expenses) does not exceed
the Maximum Revolver Amount. The Required Lenders may at any time by written notice to the
Administrative Agent (x) revoke Agent’s authority to make further Advances pursuant to this
Section 2.4(d)(ii) at any time when an Overadvance exists and (y) instruct Agent to demand
repayment of outstanding Advances from the Loan Parties to the extent necessary to cause an
Overadvance to cease to exist. Absent such revocation, Agent’s determination that funding of an
Advance is appropriate shall be conclusive. In the event Agent obtains actual knowledge that the
Revolver Usage exceeds the amounts permitted by the immediately foregoing provisions, regardless of
the amount of, or reason for, such excess, Agent shall notify Lenders as soon as practicable (and
prior to making any (or any additional) intentional Overadvances (except for and excluding amounts
charged to the Loan Account for interest, fees, or Lender Group Expenses) unless Agent determines
that prior notice



7









 




would result in imminent harm to the Collateral or its value, in which case Agent may make
such Overadvances and provide notice as promptly as practicable thereafter), and Lenders with
Revolver Commitments thereupon shall, together with Agent, jointly determine the terms of
arrangements that shall be implemented with Borrowers intended to reduce, within a reasonable time,
the outstanding principal amount of the Advances to Borrowers to an amount permitted by the
preceding sentence. In such circumstances, if any Lender with a Revolver Commitment objects to the
proposed terms of reduction or repayment of any Overadvance, the terms of reduction or repayment
thereof shall be implemented according to the determination of the Required Lenders. In any event:
(x) if any unintentional Overadvance remains outstanding for more than 30 days, unless otherwise
agreed to by the Required Lenders, Borrowers shall immediately repay Advances in an amount
sufficient to eliminate all such unintentional Overadvances, and (y) after the date all such
Overadvances have been eliminated, there must be at least five consecutive days before intentional
Overadvances are made. The foregoing provisions are meant for the benefit of Lenders and Agent and
are not meant for the benefit of Borrowers, which shall continue to be bound by the provisions of
Section 2.5. Each Lender with a Revolver Commitment shall be obligated to settle with
Agent as provided in Section 2.3(e) (or Section 2.3(g), as applicable) for the
amount of such Lender’s Pro Rata Share of any unintentional Overadvances by Agent reported to such
Lender, any intentional Overadvances made as permitted under this Section 2.3(d)(ii), and
any Overadvances resulting from the charging to the Loan Account of interest, fees, or Lender Group
Expenses.




               (iii) Each Protective Advance and each Overadvance shall be deemed to be an Advance hereunder,
except that no Protective Advance or Overadvance shall be eligible to be a LIBOR Rate Loan and,
prior to Settlement therefor, all payments on the Protective Advances shall be payable to Agent
solely for its own account. The Protective Advances and Overadvances shall be repayable on demand,
secured by Agent’s Liens, constitute Obligations hereunder, and bear interest at the rate
applicable from time to time to Advances that are Base Rate Loans. The ability of Agent to make
Protective Advances is separate and distinct from its ability to make Overadvances and its ability
to make Overadvances is separate and distinct from its ability to make Protective Advances. For
the avoidance of doubt, the limitations on Agent’s ability to make Protective Advances do not apply
to Overadvances and the limitations on Agent’s ability to make Overadvances do not apply to
Protective Advances. The provisions of this Section 2.3(d) are for the exclusive benefit
of Agent, Swing Lender, and Lenders and are not intended to benefit Borrowers in any way.



               (iv) Notwithstanding anything contained in this Agreement or any other Loan Document to the
contrary: (A) no Overadvance or Protective Advance may be made by Agent if such Advance would cause
the aggregate principal amount of Overadvances and Protective Advances outstanding to exceed an
amount equal to 10% of the lesser of (1) the Maximum Revolver Amount and (2) the Borrowing
Base and (B) after giving effect to all Overadvances and Protective Advances, the outstanding
Revolver Usage (except for and excluding amounts charged to the Loan Account for interest, fees, or
Lender Group Expenses) shall not exceed the Maximum Revolver Amount.



          (e) Settlement. It is agreed that each Lender’s funded portion of the Advances is intended by
Lenders to equal, at all times, such Lender’s Pro Rata Share of the outstanding Advances. Such
agreement notwithstanding, Agent, Swing Lender, and the other



8









 




Lenders agree (which agreement shall not be for the benefit of Borrowers) that in order to
facilitate the administration of this Agreement and the other Loan Documents, settlement among
Lenders as to the Advances, the Swing Loans, and the Protective Advances shall take place on a
periodic basis in accordance with the following provisions:




               (i) Agent shall request settlement (“Settlement”) with Lenders on a weekly basis, or
on a more frequent basis if so determined by Agent (1) on behalf of Swing Lender, with respect to
the outstanding Swing Loans, (2) for itself, with respect to the outstanding Protective Advances,
and (3) with respect to the Company’s or its Subsidiaries’ Collections or payments received, as to
each by notifying Lenders by telecopy, telephone, or other similar form of transmission, of such
requested Settlement, no later than 3:00 p.m. (New York time) on the Business Day immediately prior
to the date of such requested Settlement (the date of such requested Settlement being the
“Settlement Date”); provided that for purposes of settling any Swing Loan or
Protective Advance by the Foreign Borrower, the Agent shall give the Lenders at least three
Business Days prior notice. Such notice of a Settlement Date shall include a summary statement of
the amount of outstanding Advances, Swing Loans, and Protective Advances for the period since the
prior Settlement Date. Subject to the terms and conditions contained herein (including Section
2.3(g)): (x) if the amount of the Advances (including Swing Loans and Protective Advances)
made by a Lender that is not a Defaulting Lender exceeds such Lender’s Pro Rata Share of the
Advances (including Swing Loans and Protective Advances) as of a Settlement Date, then Agent shall,
by no later than (A) with respect to amounts denominated in Dollars, 2:00 p.m. (New York time) and
(B) with respect to amounts denominated in Euros, 2:00 p.m. (London time), in each case, on the
Settlement Date, transfer in immediately available funds to a Deposit Account of such Lender (as
such Lender may designate), an amount such that each such Lender shall, upon receipt of such
amount, have as of the Settlement Date, its Pro Rata Share of the Advances (including Swing Loans
and Protective Advances), and (y) if the amount of the Advances (including Swing Loans and
Protective Advances) made by a Lender is less than such Lender’s Pro Rata Share of the Advances
(including Swing Loans and Protective Advances) as of a Settlement Date, such Lender shall no later
than (A) with respect to amounts denominated in Dollars, 2:00 p.m. (New York time) and (B) with
respect to amounts denominated in Euros, 2:00 p.m. (London time), in each case, on the Settlement
Date transfer in immediately available funds to Agent’s Applicable Account, an amount such that
each such Lender shall, upon transfer of such amount, have as of the Settlement Date, its Pro Rata
Share of the Advances (including Swing Loans and Protective Advances). Such amounts made available
to Agent under clause (y) of the immediately preceding sentence shall be applied against the
amounts of the applicable Swing Loans or Protective Advances and, together with the portion of such
Swing Loans or Protective Advances representing Swing Lender’s Pro Rata Share thereof, shall
constitute Advances of such Lenders. If any such amount is not made available to Agent by any
Lender on the Settlement Date applicable thereto to the extent required by the terms hereof, Agent
shall be entitled to recover for its account such amount on demand from such Lender together with
interest thereon at the Defaulting Lender Rate.



               (ii) In determining whether a Lender’s balance of the Advances, Swing Loans, and Protective
Advances is less than, equal to, or greater than such Lender’s Pro Rata Share of the Advances,
Swing Loans, and Protective Advances as of a Settlement Date, Agent shall, as part of the relevant
Settlement, apply to such balance the portion of payments actually



9









 




received in good funds by Agent with respect to principal, interest, fees payable by Borrowers
and allocable to Lenders hereunder, and proceeds of Collateral.




               (iii) Between Settlement Dates, Agent, to the extent Protective Advances or Swing Loans are
outstanding, may pay over to Agent or Swing Lender, as applicable, any Collections or payments
received by Agent, that in accordance with the terms of this Agreement would be applied to the
reduction of the Advances, for application to the Protective Advances or Swing Loans. Between
Settlement Dates, Agent, to the extent no Protective Advances or Swing Loans are outstanding, may
pay over to Swing Lender any Collections or payments received by Agent, that in accordance with the
terms of this Agreement would be applied to the reduction of the Advances, for application to Swing
Lender’s Pro Rata Share of the Advances. If, as of any Settlement Date, Collections or payments of
the Company or its Subsidiaries received since the then immediately preceding Settlement Date have
been applied to Swing Lender’s Pro Rata Share of the Advances other than to Swing Loans, as
provided for in the previous sentence, Swing Lender shall pay to Agent for the accounts of Lenders,
and Agent shall pay to Lenders (other than a Defaulting Lender if Agent has implemented the
provisions of Section 2.3(g)), to be applied to the outstanding Advances of such Lenders,
an amount such that each such Lender shall, upon receipt of such amount, have, as of such
Settlement Date, its Pro Rata Share of the Advances. During the period between Settlement Dates,
Swing Lender with respect to Swing Loans, Agent with respect to Protective Advances, and each
Lender (subject to the effect of agreements between Agent and individual Lenders) with respect to
the Advances other than Swing Loans and Protective Advances, shall be entitled to interest at the
applicable rate or rates payable under this Agreement on the daily amount of funds employed by
Swing Lender, Agent, or Lenders, as applicable.



               (iv) Anything in this Section 2.3(e) to the contrary notwithstanding, in the event
that a Lender is a Defaulting Lender, Agent shall be entitled to refrain from remitting settlement
amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the
provisions set forth in Section 2.3(g).



          (f) Notation. Agent, as a non-fiduciary agent for Borrowers, shall maintain a register
showing the principal amount of the Advances, owing to each Lender, including the Swing Loans owing
to Swing Lender, and Protective Advances owing to Agent, and the interests therein of each Lender,
from time to time and such register shall, absent manifest error, conclusively be presumed to be
correct and accurate.




          (g) Defaulting Lenders. Agent shall not be obligated to transfer to a Defaulting Lender any
payments made by any Borrower to Agent for the Defaulting Lender’s benefit or any Collections or
proceeds of Collateral that would otherwise be remitted hereunder to the Defaulting Lender, and, in
the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments (A)
first, to Swing Lender to the extent of any Swing Loans that were made by Swing Lender and that
were required to be, but were not, repaid by the Defaulting Lender, (B) second, to the Issuing
Lender, to the extent of the portion of a Letter of Credit Disbursement that was required to be,
but was not, repaid by the Defaulting Lender, (C) third, to each non-Defaulting Lender ratably in
accordance with their Revolver Commitments (but, in each case, only to the extent that such
Defaulting Lender’s portion of an Advance (or other funding obligation) was funded by such other
non-Defaulting Lender), (D) to a suspense account
maintained by Agent, the proceeds of which shall be retained by Agent and may be made




10









 







available to be re-advanced to or for the benefit of Borrowers as if such Defaulting Lender had
made its portion of Advances (or other funding obligations) hereunder, and (E) from and after the
date on which the Revolver Commitment is cancelled or terminated and all other Obligations have
been paid in full, to such Defaulting Lender in accordance with tier (P) of Section
2.4(b)(ii). Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend
to Borrowers for the account of such Defaulting Lender the amount of all such payments received and
retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or
consenting to matters with respect to the Loan Documents (including the calculation of Pro Rata
Share in connection therewith) and for the purpose of calculating the fee payable under Section
2.10(b), such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Revolver
Commitment shall be deemed to be zero ; provided, however, that the foregoing shall
not apply to any of the matters governed by Section 14.1(a)(i) through (iii). The
provisions of this Section 2.3(g) shall remain effective with respect to such Defaulting
Lender until the earlier of (x) the date on which the non-Defaulting Lenders, Agent, and Borrowers
shall have waived, in writing, the application of this Section 2.3(g) to such Defaulting
Lender, or (y) the date on which such Defaulting Lender makes payment of all amounts that it was
obligated to fund hereunder, pays to Agent all amounts owing by Defaulting Lender in respect of the
amounts that it was obligated to fund hereunder, and, if requested by Agent or any Borrower,
provides adequate assurance to Agent of its ability to perform its future obligations hereunder.
The operation of this Section 2.3(g) shall not be construed to increase or otherwise affect
the Revolver Commitment of any Lender, to relieve or excuse the performance by such Defaulting
Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the
performance by Borrowers of their duties and obligations hereunder to Agent or to Lenders other
than such Defaulting Lender. Any failure by a Defaulting Lender to fund amounts that it was
obligated to fund hereunder shall constitute a material breach by such Defaulting Lender of this
Agreement and shall entitle Borrowers, at their option, upon written notice to Agent, to arrange
for a substitute Lender to assume the Revolver Commitment of such Defaulting Lender, such
substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such
a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder,
and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the
substitute Lender (and agrees that it shall be deemed to have executed and delivered such document
if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other
than Bank Product Obligations, but including (1) all interest, fees, and other amounts that may be
due and payable in respect thereof, and (2) an assumption of its Pro Rata Share of the Letters of
Credit); provided, however, that any such assumption of the Revolver Commitment of
such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or
any Borrower’s rights or remedies against any such Defaulting Lender arising out of or in relation
to such failure to fund. In the event of a direct conflict between the priority provisions of this
Section 2.3(g) and any other provision contained in this Agreement or any other Loan
Document, it is the intention of the parties hereto that such provisions be read together and
construed, to the fullest extent possible, to be in concert with each other. In the event of any
actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of
this Section 2.3(g) shall control and govern.




          (h) Independent Obligations. All Advances (other than Swing Loans and Protective Advances)
shall be made by Lenders contemporaneously and in accordance with their Pro Rata Shares. It is
understood that (i) no Lender shall be responsible for any failure by any other Lender to perform
its obligation to make any Advance (or other extension of credit) hereunder, nor shall any Revolver
Commitment of any Lender be increased or decreased as a result of any failure by any




11









 







other Lender
to perform its obligations hereunder, and (ii) no failure by any Lender to perform its obligations
hereunder shall excuse any other Lender from its obligations hereunder.




     2.4 Payments; Reductions of Revolver Commitments; Prepayments.



          (a) Payments by Borrowers.




               (i) Except as otherwise expressly provided herein, all payments by any Borrower shall be made
to Agent’s Applicable Account for the account of the Lender Group and shall be made in immediately
available funds in the applicable currency, no later than (A) with respect to amounts denominated
in Dollars, 2:00 p.m. (New York time) and (B) with respect to amounts denominated in Euros, 3:00
p.m. (London time), in each case, on the date specified herein. Any payment received by Agent
later than (A) with respect to amounts denominated in Dollars, 2:00 p.m. (New York time) and (B)
with respect to amounts denominated in Euros, 3:00 p.m. (London time), in each case, shall be
deemed to have been received on the following Business Day and any applicable interest or fee shall
continue to accrue until such following Business Day. Without limiting the generality of the
foregoing, Agent may require that any payments due under this Agreement be made in the United
States. If, for any reason, any Borrower is prohibited by any Law from making any required payment
hereunder in Euros, such Borrower shall make such payment in Dollars in the Dollar Equivalent of
the Euro payment amount.



               (ii) Unless Agent receives notice from Borrowers prior to the date on which any payment is due
to Lenders that Borrowers will not make such payment in full as and when required, Agent may assume
that Borrowers have made (or will make) such payment in full to Agent on such date in immediately
available funds and Agent may (but shall not be so required), in reliance upon such assumption,
distribute to each Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent Borrowers do not make such payment in full to Agent on the date when due, each
Lender severally shall repay to Agent on demand such amount distributed to such Lender, together
with interest thereon at the Defaulting Lender Rate for each day from the date such amount is
distributed to such Lender until the date repaid.



               (iii) All repayments, prepayments or reimbursements with respect to US Advances, US Letters of
Credit and other US Obligations shall be made to Agent’s Applicable Account for US Obligations and
all repayments, prepayments or reimbursements with respect to Foreign Advances, Foreign Letters of
Credit and other Foreign Obligations shall be made to Agent’s Applicable Account for Foreign
Obligations.



          (b) Apportionment and Application.




               (i) So long as no Application Event has occurred and is continuing and except as otherwise
provided herein with respect to Defaulting Lenders, all principal and interest payments received by
Agent shall be apportioned ratably among Lenders (according to the unpaid principal balance of the
Obligations to which such payments relate held by each



12









 







Lender) and all payments of fees and
expenses received by Agent (other than fees or expenses that are for Agent’s separate account or
for the separate account of the Issuing Lender) shall be apportioned ratably among Lenders having a
Pro Rata Share of the type of Revolver Commitment or Obligation to which a particular fee or
expense relates. All payments to be made hereunder by Borrowers shall be remitted to Agent and all
(subject to Section 2.4(b)(iv), Section 2.4(d)(ii), and Section 2.4(e))
such payments, and all proceeds of Collateral received by Agent, shall be applied, so long as no
Application Event has occurred and is continuing, to reduce the balance of the Advances outstanding
and, thereafter, to Borrowers (to be wired to the applicable Designated Account) or such other
Person entitled thereto under applicable law.



               (ii) At any time that an Application Event has occurred and is continuing and except as
otherwise provided herein with respect to Defaulting Lenders, all payments remitted to Agent by the
US Loan Parties and all proceeds of US Collateral received by Agent shall be applied as follows:



                    (A) first, to pay any Lender Group Expenses (including cost or expense reimbursements)
or indemnities then due to Agent from the US Loan Parties under the Loan Documents, until paid in
full,



                    (B) second, to pay any fees or premiums then due to Agent from the US Loan Parties
under the Loan Documents until paid in full,



                    (C) third, to pay interest due in respect of all Protective Advances related to the US
Collateral or the US Loan Parties until paid in full,



                    (D) fourth, to pay the principal of all Protective Advances related to the US
Collateral or the US Loan Parties until paid in full,



                    (E) fifth, ratably, to pay any Lender Group Expenses (including cost or expense
reimbursements) or indemnities then due to any of Lenders from the US Loan Parties under the Loan
Documents, until paid in full,



                    (F) sixth, ratably, to pay any fees or premiums then due to any of Lenders from the US
Loan Parties under the Loan Documents until paid in full,



                    (G) seventh, to pay interest accrued in respect of the US Swing Loans until paid in
full,



                    (H) eighth, to pay the principal of all US Swing Loans until paid in full,



                    (I) ninth, ratably, to pay interest accrued in respect of the US Advances (other than
Protective Advances),



                    (J) tenth, ratably (1) to pay the principal of all US Advances until paid in full, (2)
to Agent, to Cash Collateralize any US Letters of Credit (to the extent permitted by applicable
law, such cash collateral shall be applied to the reimbursement of any such Letter of Credit
Disbursement as and when such disbursement occurs and, if a US Letter of Credit expires undrawn,
the cash collateral held by Agent in respect of such US Letter of Credit



13









 







shall, to the extent
permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(ii), beginning
with tier (A) hereof), and (3) ratably, to the Hedge Providers based upon amounts certified to
Agent to be due and payable to such Hedge Provider on account of Noticed Bank Product Obligations
constituting US Hedge Obligations in an amount up to the Bank Product Reserve Amount with respect
thereto,



                    (K) eleventh, to pay any Foreign Obligations (other than Foreign Bank Product
Obligations) remaining outstanding after the application of the proceeds of all Foreign Collateral
pursuant to Section 2.4(b)(iii), to be applied in accordance with Section
2.4(b)(iii),



                    (L) twelfth, ratably, to the Bank Product Providers based upon amounts certified to
Agent to be due and payable to such Bank Product Provider on account of Noticed Bank Product
Obligations constituting US Bank Product Obligations (other than US Hedge Obligations provided for
in clause (J) above),



                    (M) thirteenth, ratably, to the Bank Product Providers on account of any other US Bank
Product Obligations,



                    (N) fourteenth, to pay any other US Obligations other than Obligations owed to
Defaulting Lenders,



                    (O) fifteenth, to pay any Foreign Bank Product Obligations remaining outstanding after
the application of the proceeds of all Foreign Collateral pursuant to Section 2.4(b)(iii),
to be applied in accordance with Section 2.4(b)(iii),



                    (P) sixteenth, ratably to pay any US Obligations owed to Defaulting Lenders, and



                    (Q) seventeenth, to US Borrowers (to be wired to the applicable Designated Account) or
such other Person entitled thereto under applicable law.



               (iii) At any time that an Application Event has occurred and is continuing and except as
otherwise provided herein with respect to Defaulting Lenders, all payments remitted to Agent by the
Foreign Loan Parties and all proceeds of Foreign Collateral received by Agent shall be applied as
follows:



                    (A) first, to pay any Lender Group Expenses (including cost or expense reimbursements)
or indemnities then due to Agent from the Foreign Loan Parties under the Loan Documents, until paid
in full,



                    (B) second, to pay any fees or premiums then due to Agent from the Foreign Loan
Parties under the Loan Documents until paid in full,



                    (C) third, to pay interest due in respect of all Protective Advances related to the
Foreign Collateral or the Foreign Loan Parties until paid in full,



                    (D) fourth, to pay the principal of all Protective Advances related to the Foreign
Collateral or the Foreign Loan Parties until paid in full,



14









 





                    (E) fifth, ratably, to pay any Lender Group Expenses (including cost or expense
reimbursements) or indemnities then due to any of Lenders from the Foreign Loan Parties under the
Loan Documents, until paid in full,



                    (F) sixth, ratably, to pay any fees or premiums then due to any of Lenders from the
Foreign Loan Parties under the Loan Documents until paid in full,



                    (G) seventh, to pay interest accrued in respect of the Foreign Swing Loans until paid
in full,



                    (H) eighth, to pay the principal of all Foreign Swing Loans until paid in full,



                    (I) ninth, ratably, to pay interest accrued in respect of the Foreign Advances (other
than Protective Advances),



                    (J) tenth, ratably (1) to pay the principal of all Foreign Advances until paid in
full, (2) to Agent, to Cash Collateralize any Foreign Letters of Credit (to the extent permitted by
applicable law, such cash collateral shall be applied to the reimbursement of any such Letter of
Credit Disbursement as and when such disbursement occurs and, if a Foreign Letter of Credit expires
undrawn, the cash collateral held by Agent in respect of such Foreign Letter of Credit shall, to
the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(iii),
beginning with tier (A) hereof), and (3) ratably, to the Hedge Providers based upon amounts
certified to Agent to be due and payable to such Hedge Provider on account of Noticed Bank Product
Obligations constituting Foreign Hedge Obligations in an amount up to the Bank Product Reserve
Amount with respect thereto,



                    (K) eleventh, ratably, to the Bank Product Providers based upon amounts certified to
Agent to be due and payable to such Bank Product Provider on account of Noticed Bank Product
Obligations constituting Foreign Bank Product Obligations (other than Foreign Hedge Obligations
provided for in clause (J) above),



                    (L) twelfth, ratably, to the Bank Product Providers on account of any other Foreign
Bank Product Obligations,



                    (M) thirteenth, to pay any other Foreign Obligations other than Obligations owed to
Defaulting Lenders,



                    (N) fourteenth, ratably to pay any Foreign Obligations owed to Defaulting Lenders, and



                    (O) fifteenth, to Foreign Borrower (to be wired to the applicable Designated Account)
or such other Person entitled thereto under applicable law.



               (iv) Agent promptly shall distribute to each Lender, pursuant to the applicable wire
instructions received from each Lender in writing, such funds as it may be entitled to receive,
subject to a Settlement delay as provided in Section 2.3(e).



15









 





               (v) In each instance, so long as no Application Event has occurred and is continuing,
Section 2.4(b)(i) shall not apply to any payment made by any Borrower to Agent and
specified by such Borrower to be for the payment of specific Obligations then due and payable (or
prepayable) under any provision of this Agreement or any other Loan Document.



               (vi) Notwithstanding anything to the contrary set forth in any of the Loan Documents, (i) all
payments by or on behalf of Foreign Borrower and Foreign Guarantors shall be applied only to the
Foreign Obligations, (ii) all payments on behalf of a US Borrower or US Guarantor shall be applied
first to US Obligations then due until paid in full, (iii) all payments in respect of the Foreign
Obligations shall be applied first to Foreign Obligations denominated in the same currency as the
payments received; provided that payments and collections received in any currency other
than the currency in which any outstanding Obligations are denominated will be accepted and/or
applied at the discretion of Agent, in the event that Agent elects to accept and apply such amounts
when there are no Obligations (other than Letters of Credit or other contingent Obligations) then
outstanding in the same currency, Agent may, at its option (but is not obligated to), convert such
currency received to the currency in which the Obligations are denominated at the Spot Rate on such
date (regardless of whether such rate is the best available rate) and in such event, Borrowers
shall pay the costs of such conversion (or Agent may, at its option, charge such costs to the loan
account of any Borrower maintained by Agent) and (iv) to the extent any Borrower or Guarantor,
directly or indirectly, uses any proceeds of the applicable Advances or Letters of Credit to
acquire rights in or the use of any Collateral or to repay any Indebtedness used to acquire rights
in or the use of any Collateral, payments in respect of the Obligations shall be deemed applied
first to the Obligations arising from Advances and Letters of Credit that were not used for such
purposes and second to the Obligations arising from Advances and Letters of Credit the proceeds of
which were used to acquire rights in or the use of any Collateral in the chronological order in
which such Borrower acquired such rights in or the use of such Collateral.



               (vii) For purposes of this Section 2.4(b), “paid in full” of a type of Obligation
means payment in cash or immediately available funds of all amounts owing on account of such type
of Obligation, including interest accrued after the commencement of any Insolvency Proceeding,
default interest, interest on interest, and expense reimbursements, irrespective of whether any of
the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency
Proceeding.



               (viii) In the event of a direct conflict between the priority provisions of this Section
2.4 and any other provision contained in this Agreement or any other Loan Document, it is the
intention of the parties hereto that such provisions be read together and construed, to the fullest
extent possible, to be in concert with each other. In the event of any actual, irreconcilable
conflict that cannot be resolved as aforesaid, if the conflict relates to the
provisions of Section 2.3(g) and this Section 2.4, then the provisions of
Section 2.3(g) shall control and govern, and if otherwise, then the terms and provisions of
this Section 2.4 shall control and govern.



          (c) Reduction of Revolver Commitments. The Revolver Commitments shall terminate on the
Maturity Date. Borrowers may reduce the Revolver Commitments to an amount not less than the
greater of (i) $100,000,000 and (ii) the sum of (A) the Revolver Usage as of such date,
plus (B) the principal amount of all Advances not yet made as to which a request




16









 







has been
given by Borrowers under Section 2.3(a), plus (C) the amount of all Letters of
Credit not yet issued as to which a request has been given by Borrowers pursuant to Section
2.11(a); provided that the Borrowers may reduce the Revolver Commitment to $0 in
connection with the payment in full of all Obligations and the termination of the Revolver
Commitment in accordance with the terms hereof. Each such reduction shall be in an amount which is
not less than $1,000,000, shall be made by providing not less than 3 Business Days prior written
notice to Agent and shall be irrevocable. Once reduced, the Revolver Commitments may not be
increased except in accordance with Section 2.17. Each such reduction of the Revolver
Commitments shall reduce the Revolver Commitments of each Lender proportionately in accordance with
its Pro Rata Share thereof.




          (d) Optional Prepayments. Borrowers may prepay the principal of any Advance at any time in
whole or in part, without premium or penalty.




          (e) Mandatory Prepayments.




               (i) Borrowing Base. If, at any time:



                    (A) the US Revolver Usage on such date exceeds the US Borrowing Base (such excess
being referred to as the “US Borrowing Base Excess”);



                    (B) the Revolver Usage on such date exceeds the Borrowing Base (such excess being
referred to as the “Borrowing Base Excess”); or



                    (C) the Revolver Usage on such date exceeds the Maximum Revolver Amount (such excess
being referred to as the “Commitment Excess”);


then the Applicable Borrowers shall, subject to Section 2.5, promptly, but in any event,
within 1 Business Day prepay in cash the US Obligations or the Foreign Obligations, as applicable,
in accordance with Section 2.4(f)(i) in an aggregate amount equal to the greatest of the US
Borrowing Base Excess, the Borrowing Base Excess and the Commitment Excess; provided that,
in no event shall the Foreign Borrower be required to make any prepayments with respect to US
Obligations.




               (ii) Dispositions.



                    (A) Within 3 Business Days of the date of receipt by any Loan Party of the Net Cash Proceeds
of any voluntary or involuntary sale or disposition by any Borrower or any of its Restricted
Subsidiaries of any Collateral (including casualty losses or condemnations but excluding sales or
dispositions which qualify as Permitted Dispositions
except for clause (t) of the definition of Permitted Dispositions) constituting ABL Priority
Collateral or Foreign Collateral constituting Borrowing Base Collateral, the Applicable Borrower
shall prepay the outstanding principal amount of the US Obligations or the Foreign Obligations, as
applicable, in accordance with Section 2.4(f)(ii) or (iii), respectively, in an amount
equal to 100% of such Net Cash Proceeds (including condemnation awards and payments in lieu
thereof) received by such Person in connection with such sales or dispositions. Nothing contained
in this Section 2.4(e)(ii)(A) shall permit the Company or any of its Restricted
Subsidiaries to sell or otherwise dispose of any assets other than in accordance with Section
6.4.



17









 





                    (B) Within 3 Business Days of the date of receipt by any Loan Party of the Net Cash Proceeds
of any voluntary or involuntary sale or disposition by any Borrower or any of its Restricted
Subsidiaries of any Collateral (other than ABL Priority Collateral or Foreign Collateral
constituting Borrowing Base Collateral) (including casualty losses or condemnations but excluding
sales or dispositions which qualify as Permitted Dispositions except for clauses (m) and (t) of the
definition of Permitted Dispositions), the Applicable Borrower shall prepay the outstanding
principal amount of the US Obligations or the Foreign Obligations, as applicable, in accordance
with Section 2.4(f)(ii) or (iii), respectively, in an amount equal to 100% of such Net Cash
Proceeds (including condemnation awards and payments in lieu thereof) received by such Person in
connection with such sales or dispositions; provided that, so long as (A) no Default or
Event of Default shall have occurred and is continuing or would result therefrom, (B) the Company
shall have given Agent prior written notice of its intention to apply such monies to (1) the costs
of replacement of the properties or assets that are the subject of such sale or disposition or the
cost of purchase or construction of other assets useful in the business of the Company or its
Restricted Subsidiaries or (2) in the case of any Senior Note Priority Collateral, the repurchase
of Senior Notes, Permitted Additional Pari Passu Obligations, or any other Permitted Indebtedness
with a Permitted Lien on such Senior Note Priority Collateral ranking pari passu with or senior to
the Agent’s Liens in such Senior Note Priority Collateral and (C) such replacement, purchase, or
construction is completed (or, if applicable, the repurchase of Senior Notes, Permitted Additional
Pari Passu Obligations, or any other Permitted Indebtedness with a Permitted Lien on such Senior
Note Priority Collateral ranking pari passu with or senior to the Agent’s Liens in such Senior Note
Priority Collateral) within 364 (plus, with respect to clause (B)(2) above, up to 45 additional
days) after the initial receipt of such monies, then the Borrowers shall have the option to apply
such monies to the costs of replacement of the assets that are the subject of such sale or
disposition or the costs of purchase or construction of other assets useful in the business of the
Company or its Restricted Subsidiaries (or, if applicable, the repurchase of Senior Notes,
Permitted Additional Pari Passu Obligations, or any other Permitted Indebtedness with a Permitted
Lien on such Senior Note Priority Collateral ranking pari passu with or senior to the Agent’s Liens
in such Senior Note Priority Collateral), unless and to the extent that such applicable period
shall have expired without such replacement, purchase, or construction (or, if applicable, the
repurchase of Senior Notes, Permitted Additional Pari Passu Obligations, or any other Permitted
Indebtedness with a Permitted Lien on such Senior Note Priority Collateral ranking pari passu with
or senior to the Agent’s Liens in such Senior Note Priority Collateral) being made or completed, in
which case, any amounts not previously applied pursuant to the foregoing shall be prepaid to Agent
and applied in accordance with Section 2.4(f)(ii) or (iii), as applicable;
provided further, that the Company and its Restricted Subsidiaries shall not be
required to make any such payment with
respect to any Net Cash Proceeds of Senior Note Priority Collateral to the extent the Senior
Note Indenture permits such Net Cash Proceeds to remain in a collateral account under the control
of the collateral agent under the Senior Note Indenture pending application of such Net Cash
Proceeds in accordance with the terms of the Senior Note Indenture. Nothing contained in this
Section 2.4(e)(ii)(B), shall permit the Company or any of its Restricted Subsidiaries to
sell or otherwise dispose of any assets other than in accordance with Section 6.4.
Notwithstanding the foregoing in this paragraph (B), if the amount required to be applied as a
mandatory repayment on any date is less than $5,000,000, and so long as no Default or Event of
Default shall have occurred and be continuing, the Applicable Borrower may defer any mandatory
repayments required pursuant to this clause (B) until the first date on which the aggregate Net
Cash Proceeds



18









 







from all sales or dispositions required to be applied pursuant to this clause (B)
since the last payment made pursuant to this sentence equals or exceeds $5,000,000 (at which time
all theretofore unapplied amounts shall be required to be applied).



          (f) Application of Payments.




               (i) Each prepayment pursuant to Section 2.4(e)(i) shall, (A) so long as no Application
Event shall have occurred and be continuing, be applied, first, ratably to the outstanding
principal amount of the Advances (without a corresponding permanent reduction in the Maximum
Revolver Amount) until paid in full, and second, ratably to Cash Collateralize any Letters
of Credit, and (B) if an Application Event shall have occurred and be continuing, be applied in the
manner set forth in Section 2.4(b)(ii) or (b)(iii), as applicable.



               (ii) Each prepayment pursuant to Section 2.4(e)(ii) from the proceeds of US Collateral
shall (A) so long as no Application Event shall have occurred and be continuing, be applied
first, to the outstanding principal amount of the US Advances (without a corresponding
permanent reduction in the Maximum Revolver Amount), until paid in full, and second, to the
outstanding principal amount of the Foreign Advances (without a corresponding permanent reduction
in the Maximum Revolver Amount), until paid in full and (B) if an Application Event shall have
occurred and be continuing, be applied in the manner set forth in Section 2.4(b)(ii).



               (iii) Each prepayment pursuant to Section 2.4(e)(ii) from the proceeds of Foreign
Collateral shall (A) so long as no Application Event shall have occurred and be continuing, be
applied to the outstanding principal amount of the Foreign Advances (without a corresponding
permanent reduction in the Maximum Revolver Amount), until paid in full, and (B) if an Application
Event shall have occurred and be continuing, be applied in the manner set forth in Section
2.4(b)(iii).



          (g) Currency Fluctuation. If any condition set forth in Section 2.4(e)(i) exists
solely as a result of currency fluctuations of Advances and Letters of Credit denominated in Euros,
then the repayments or cash collateralizations required pursuant to Section 2.4(f) shall
only be required if the relevant excess amount exceeds 105% of the relevant permitted maximum
amount of the US Borrowing Base Excess, the Borrowing Base Excess or the Commitment Excess, as
applicable, as then in effect as provided in Section 2.4(e)(i) for more than three
consecutive Business Days, at which time the excess of 100% shall be required to be eliminated.




     2.5 Overadvances. If, at any time or for any reason, the amount of Obligations owed
by Borrowers to the Lender Group pursuant to Section 2.1 or Section 2.11 is greater
than any of the limitations set forth in Section 2.1, Section 2.4(e)(i), or
Section 2.11, as applicable (an “Overadvance”), Borrowers shall, subject to
Section 2.3(d)(ii), promptly, but in any event, within 1 Business Day of the initial
occurrence of an Overadvance pay to Agent, in cash, the amount of such excess, which amount shall
be used by Agent to reduce the Obligations in accordance with the priorities set forth in
Section 2.4(f)(i); provided, however, that in the case of an Overadvance
that is caused solely as a result of the charging by Agent of Lender Group Expenses to the Loan
Account, Borrowers shall have 3 Business Days from the date of the initial occurrence of such
Overadvance to pay to Agent, in cash, the amount of such excess (which period of 3 Business Days
shall in no event be duplicative of the 3 Business Days period referenced in Section 8.1(a)



19









 




of this Agreement). Borrowers promise to pay the Obligations (including principal, interest, fees,
costs, and expenses) in full on the Maturity Date or, if earlier, on the date on which the
Obligations (other than the Bank Product Obligations) become due and payable pursuant to the terms
of this Agreement.




     2.6 Interest Rates and Letter of Credit Fee: Rates, Payments, and Calculations.



          (a) Interest Rates. Except as provided in Section 2.6(c), all Obligations (except for
undrawn Letters of Credit) that have been charged to the Loan Account pursuant to the terms hereof
shall bear interest on the Daily Balance thereof as follows:




               (i) if the relevant Obligation is a LIBOR Rate Loan denominated in Dollars, at a per annum
rate equal to the LIBOR Rate plus the Applicable Margin for LIBOR Rate Loans,



               (ii) if the relevant Obligation is a LIBOR Rate Loan denominated in Euros, at a per annum rate
equal to the LIBOR Rate plus the Applicable Margin for LIBOR Rate Loans plus any
Mandatory Costs,



               (iii) if the relevant Obligation is a Swing Loan, at a per annum rate equal to the applicable
Floating Rate, and



               (iv) otherwise, at a per annum rate equal to the Base Rate plus the Applicable Margin
for Base Rate Loans.



          (b) Letter of Credit Fee. Borrowers shall pay Agent (for the ratable benefit of Lenders with
a Revolver Commitment, subject to any agreements between Agent and individual Lenders), a Letter of
Credit fee (in addition to the charges, commissions, fees, and costs set forth in Section
2.11(e)) which shall accrue at a per annum rate equal to the Applicable Margin for LIBOR Rate
Loans times the Daily Balance of the undrawn amount of all outstanding Letters of Credit.




          (c) Default Rate. (i) Immediately upon the occurrence and during the continuation of an Event
of Default under Sections 8.1, 8.4 or 8.5, or (ii) at the election of the Required Lenders, upon
the occurrence and during the continuation of any other Event of Default, (A) all Obligations
(except for undrawn Letters of Credit) that have been charged to the
Loan Account pursuant to the terms hereof shall bear interest on the Daily Balance thereof at
a per annum rate equal to 2 percentage points above the per annum rate otherwise applicable
thereunder, and (B) the Letter of Credit fee provided for in Section 2.6(b) shall be
increased to 2 percentage points above the per annum rate otherwise applicable hereunder.




          (d) Payment. Except to the extent provided to the contrary in Section 2.10 or
Section 2.12(a), all interest, all Letter of Credit fees, and all other fees payable
hereunder or under any of the other Loan Documents shall be due and payable, in arrears, on the
first day of each quarter at any time that Obligations or Revolver Commitments are outstanding;
provided that all interest on account of any Swing Loans or Base Rate Loan shall be due and
payable, in arrears, on the first day of each month. All costs, expenses, and Lender Group
Expenses payable hereunder or under any of the other Loan Documents shall be due and payable on
demand of




20









 







Agent. Each Applicable Borrower hereby authorizes Agent, from time to time without prior
notice to such Applicable Borrower, to charge all interest, Letter of Credit fees, and all other
fees payable hereunder or under any of the other Loan Documents (in each case, as and when due and
payable), all costs, expenses, and Lender Group Expenses payable by such Applicable Borrower
hereunder or under any of the other Loan Documents (in each case, as and when incurred), all
charges, commissions, fees, and costs provided for in Section 2.11(e) (as and when accrued
or incurred), all fees and costs provided for in Section 2.10 (as and when accrued or
incurred), and all other payments as and when due and payable by such Applicable Borrower under any
Loan Document or any Bank Product Agreement (including any amounts due and payable to the Bank
Product Providers in respect of Bank Products) to the Loan Account, which amounts thereafter shall
constitute US Advances or Foreign Advances, as applicable, hereunder and shall accrue interest at
the rate then applicable to Advances that are Base Rate Loans (unless and until converted into
LIBOR Rate Loans in accordance with the terms of this Agreement).




          (e) Computation. All interest and fees chargeable under the Loan Documents shall be computed
on the basis of a 360 day year, in each case, for the actual number of days elapsed in the period
during which the interest or fees accrue; provided that Base Rate Loans bearing interest
based on the “prime rate” shall be calculated on the basis of a 365 day year (or a 366 day year, in
the case of a leap year). In the event the Base Rate is changed from time to time hereafter, the
rates of interest hereunder based upon the Base Rate automatically and immediately shall be
increased or decreased by an amount equal to such change in the Base Rate.




          (f) Intent to Limit Charges to Maximum Lawful Rate. In no event shall the interest rate or
rates payable under this Agreement, plus any other amounts paid in connection herewith, exceed the
highest rate permissible under any law (including, without limitation, Section 347 of the Criminal
Code of Canada) that a court of competent jurisdiction shall, in a final determination, deem
applicable. Each Borrower and the Lender Group, in executing and delivering this Agreement, intend
legally to agree upon the rate or rates of interest and manner of payment stated within it;
provided, however, that, anything contained herein to the contrary notwithstanding,
if said rate or rates of interest or manner of payment exceeds the maximum allowable under
applicable law, then, ipso facto, as of the date of this Agreement, Borrowers are and shall be
liable only for the payment of such maximum as allowed by law, and payment received from Borrowers
in excess of such legal maximum, whenever received, shall be applied to reduce the principal
balance of the Obligations to the extent of such excess.




     2.7 Crediting Payments. The receipt of any payment item by Agent shall not be
considered a payment on account unless such payment item is a wire transfer of immediately
available funds made to Agent’s Applicable Account or unless and until such payment item is honored
when presented for payment. Should any payment item not be honored when presented for payment,
then Borrowers shall be deemed not to have made such payment and interest shall be calculated
accordingly. Anything to the contrary contained herein notwithstanding, any payment item shall be
deemed received by Agent only if it is received into Agent’s Applicable Account on a Business Day
in the applicable currency on or before (A) with respect to amounts denominated in Dollars, 2:00
p.m. (New York time) and (B) with respect to amounts denominated in Euros, 3:00 p.m. (London time).
If any payment item is received into Agent’s Applicable Account on a non-Business Day or after (A)
with respect to amounts denominated in Dollars, 2:00 p.m. (New York time) and (B) with respect to
amounts denominated in Euros,



21









 







3:00 p.m. (London time), in each case, on a Business Day, it shall be
deemed to have been received by Agent as of the opening of business on the immediately following
Business Day.



     2.8 Designated Account. Agent is authorized to make the Advances, and Issuing Lender
is authorized to issue the Letters of Credit, under this Agreement based upon telephonic or other
instructions received from anyone purporting to be an Authorized Person or, without instructions,
if pursuant to Section 2.6(d). The Applicable Borrowers agree to establish and maintain
the applicable Designated Account with the applicable Designated Account Bank for the purpose of
receiving the proceeds of the Advances requested by the Applicable Borrowers and made by Agent or
Lenders hereunder. Unless otherwise agreed by Agent and Borrowers, any Advance or Swing Loan
requested by the Applicable Borrowers and made by Agent or Lenders hereunder shall be made to the
applicable Designated Account.



     2.9 Maintenance of Loan Accounts; Statements of Obligations. Agent shall maintain
accounts on its books in the name of Applicable Borrowers (the “Loan Accounts”) on which
the Applicable Borrowers will be charged with all Advances (including Protective Advances and Swing
Loans) made by Agent, Swing Lender, or Lenders to the Applicable Borrowers or for the Applicable
Borrowers’ account, the Letters of Credit issued or arranged by Issuing Lender for the Applicable
Borrowers’ account, and with all other payment Obligations hereunder or under the other Loan
Documents, including, accrued interest, fees and expenses, and Lender Group Expenses. In
accordance with Section 2.7, the applicable Loan Account will be credited with all payments
received by Agent from the Applicable Borrowers or for any of such the Applicable Borrower’s
account. Agent shall render monthly statements regarding the Loan Account to the Company,
including principal, interest, fees, and including an itemization of all charges and expenses
constituting Lender Group Expenses owing, and such statements, absent manifest error, shall be
conclusively presumed to be correct and accurate and constitute an account stated between Borrowers
and the Lender Group unless, within 30 days after receipt thereof by the Company, the Company shall
deliver to Agent written objection thereto describing the error or errors contained in any such
statements.



     2.10 Fees. The Applicable Borrowers shall pay to Agent,



          (a) for the account of Agent, as and when due and payable under the terms of the Fee Letter,
the fees set forth in the Fee Letter.




          (b) for the ratable account of those Lenders with Revolver Commitments, on the first day of
each month from and after the Closing Date up to the first day of the month prior to the Payoff
Date and on the Payoff Date, an unused line fee in an amount equal to a per annum rate equal to the
Applicable Margin for “Unused Fees” times the result of (i) the aggregate amount of the Revolver
Commitments, less (ii) the average Daily Balance of the Revolver Usage (excluding all Swing
Loans) during the immediately preceding month (or portion thereof).




     2.11 Letters of Credit.



          (a) Subject to the terms and conditions of this Agreement, upon the request of the Applicable
Borrower made in accordance herewith, the Issuing Lender agrees to issue, or to cause an Underlying
Issuer (including, as Issuing Lender’s agent) to issue, a requested Letter of Credit in Dollars or
Euros. If Issuing Lender, at its option, elects to cause an Underlying Issuer




22









 







to issue a requested
Letter of Credit, then Issuing Lender agrees that it will enter into arrangements relative to the
reimbursement of such Underlying Issuer (which may include, among, other means, by becoming an
applicant with respect to such Letter of Credit or entering into undertakings which provide for
reimbursements of such Underlying Issuer with respect to such Letter of Credit; each such
obligation or undertaking, irrespective of whether in writing, a “Reimbursement
Undertaking”) with respect to Letters of Credit issued by such Underlying Issuer. By
submitting a request to Issuing Lender for the issuance of a Letter of Credit, the Applicable
Borrowers shall be deemed to have requested that Issuing Lender issue or that an Underlying Issuer
issue the requested Letter of Credit and to have requested Issuing Lender to issue a Reimbursement
Undertaking with respect to such requested Letter of Credit if it is to be issued by an Underlying
Issuer (it being expressly acknowledged and agreed by each Borrower that the Applicable Borrowers
are and shall be deemed to be applicants (within the meaning of Section 5-102(a)(2) of the Code)
with respect to each Underlying Letter of Credit). Each request for the issuance of a Letter of
Credit, or the amendment, renewal, or extension of any outstanding Letter of Credit, shall be made
in writing by an Authorized Person of the Applicable Borrower and delivered to the Issuing Lender
via hand delivery, facsimile, or other electronic method of transmission reasonably in advance of
the requested date of issuance, amendment, renewal, or extension. Each such request shall be in
form and substance reasonably satisfactory to the Issuing Lender and shall specify (i) the amount
of such Letter of Credit, (ii) the date of issuance, amendment, renewal, or extension of such
Letter of Credit, (iii) the expiration date of such Letter of Credit, (iv) the name and address of
the beneficiary of the Letter of Credit, (v) whether such Letter of Credit is a US Letter of Credit
or a Foreign Letter of Credit, (vi) whether such Letter of Credit is to be denominated in Dollars
or Euros, and (v) such other information (including, in the case of an amendment, renewal, or
extension, identification of the Letter of Credit to be so amended, renewed, or extended) as shall
be necessary to prepare, amend, renew, or extend such Letter of Credit. Anything contained herein
to the contrary notwithstanding, the Issuing Lender may, but shall not be obligated to, issue or
cause the issuance of a Letter of Credit or to issue a Reimbursement Undertaking in respect of an
Underlying Letter of Credit, in either case, that supports the obligations of Borrowers or their
Subsidiaries (1) in respect of (A) a lease of real property located in the United States, or (B) an
employment contract, or (2) at any time that one or more of Lenders is a Defaulting Lender, unless
the Borrowers shall have Cash Collateralized each Defaulting Lender’s Pro Rata Share of the
outstanding Letter of Credit Obligations. The Issuing Lender shall have no obligation to issue a
Letter of Credit or a
Reimbursement Undertaking in respect of an Underlying Letter of Credit, in either case, if any
of the following would result after giving effect to the requested issuance:




               (i) the Letter of Credit Usage would exceed (A) the lesser of (x) the Borrowing Base
and (y) the Maximum Revolver Amount less (B) the outstanding amount of Advances (including
Swing Loans);



               (ii) the US Letter of Credit Usage would exceed the US Borrowing Base less the sum of
(A) the outstanding amount of US Advances (including US Swing Loans) and (B) the Foreign Borrowing
Base Usage;



               (iii) the Letter of Credit Usage would exceed $75,000,000; or



               (iv) the expiration date of such Letter of Credit would occur later than seven days prior to
the Maturity Date.




23












 





          Subject to the provisions of Section 2.3(d), Issuing Lender shall not issue,
renew or extend and shall not be obligated to issue, renew or extend any Letter of Credit if
Issuing Lender has actual knowledge that (i) one or more of the applicable conditions precedent set
forth in Section 3 will not be satisfied on the date of the requested issuance, renewal, or
extension of such Letter of Credit, or (ii) the requested issuance, renewal, or extension of such
Letter of Credit would exceed the Excess Availability on such date of the requested issuance,
renewal, or extension of such Letter of Credit.




          For purposes of this Section 2.11(a), the relevant Borrowing Bases will be based upon
the Borrowing Base Certificate most recently delivered in accordance with the terms of this
Agreement.




          Borrowers and the Lender Group hereby acknowledge and agree that all Existing Letters of
Credit shall constitute Letters of Credit under this Agreement on and after the Closing Date with
the same effect as if such Existing Letters of Credit were issued by Issuing Lender or an
Underlying Issuer at the request of Borrowers on the Closing Date. Each Letter of Credit shall be
in form and substance reasonably acceptable to the Issuing Lender, including the requirement that
the amounts payable thereunder must be payable in (A) Dollars, in the case of Letters of Credit
denominated in Dollars and (B) Euros, in the case of Letters of Credit denominated in Euros. If
(1) Issuing Lender makes a payment under a US Letter of Credit or an Underlying Issuer makes a
payment under an Underlying Letter of Credit with respect to a US Letter of Credit, the US
Borrowers shall pay to Agent an amount equal to the applicable Letter of Credit Disbursement on the
date such Letter of Credit Disbursement is made and, in the absence of such payment, the amount of
the Letter of Credit Disbursement immediately and automatically shall be deemed to be a US Advance
hereunder or (2) Issuing Lender makes a payment under a Foreign Letter of Credit or an Underlying
Issuer makes a payment under an Underlying Letter of Credit with respect to a Foreign Letter of
Credit, the Foreign Borrower shall pay to Agent an amount equal to the applicable Letter of Credit
Disbursement on the date such Letter of Credit Disbursement is made and, in the absence of such
payment, the amount of the Letter of Credit Disbursement immediately and automatically shall be
deemed to be a Foreign Advance hereunder, and, in the case of a Foreign Letter of Credit
denominated in Euros, Agent may convert the then outstanding principal amount of each such Foreign
Letter of Credit to a Base Rate Loan denominated in Dollars. If a Letter of Credit Disbursement is
deemed to be (x) a US Advance hereunder, US Borrowers’ obligation to pay the amount of such Letter
of Credit Disbursement to Issuing Lender shall be discharged and replaced by the resulting US
Advance or (y) a Foreign Advance hereunder, Foreign Borrower’s obligation to pay the amount of such
Letter of Credit Disbursement to Issuing Lender shall be discharged and replaced by the resulting
Foreign Advance. Promptly following receipt by Agent of any payment from Borrowers pursuant to
this paragraph, Agent shall distribute such payment to the Issuing Lender or, to the extent that
Lenders have made payments pursuant to Section 2.11(b) to reimburse the Issuing Lender,
then to such Lenders and the Issuing Lender as their interests may appear.




          (b) Promptly following receipt of a notice of a Letter of Credit Disbursement pursuant to
Section 2.11(a), each Lender with a Revolver Commitment agrees to fund its Pro Rata Share
of any Advance deemed made pursuant to Section 2.11(a) on the same terms and conditions as
if Borrowers had requested the amount thereof as an Advance and Agent shall promptly pay to Issuing
Lender the amounts so received by it from Lenders. By the issuance of






24









 







a Letter of Credit or a Reimbursement Undertaking (or an amendment to a Letter of Credit or a
Reimbursement Undertaking increasing the amount thereof) and without any further action on the part
of the Issuing Lender or Lenders with Revolver Commitments, the Issuing Lender shall be deemed to
have granted to each Lender with a Revolver Commitment, and each Lender with a Revolver Commitment
shall be deemed to have purchased, a participation in each Letter of Credit issued by Issuing
Lender and each Reimbursement Undertaking, in an amount equal to its Pro Rata Share of such Letter
of Credit or Reimbursement Undertaking, and each such Lender agrees to pay to Agent, for the
account of the Issuing Lender, such Lender’s Pro Rata Share of any Letter of Credit Disbursement
made by Issuing Lender or an Underlying Issuer under the applicable Letter of Credit. In
consideration and in furtherance of the foregoing, each Lender with a Revolver Commitment hereby
absolutely and unconditionally agrees to pay to Agent, for the account of the Issuing Lender, such
Lender’s Pro Rata Share of each Letter of Credit Disbursement made by Issuing Lender or an
Underlying Issuer and not reimbursed by Borrowers on the date due as provided in Section
2.11(a), or of any reimbursement payment required to be refunded to Borrowers for any reason.
Each Lender with a Revolver Commitment acknowledges and agrees that its obligation to deliver to
Agent, for the account of the Issuing Lender, an amount equal to its respective Pro Rata Share of
each Letter of Credit Disbursement pursuant to this Section 2.11(b) shall be absolute and
unconditional and such remittance shall be made notwithstanding the occurrence or continuation of
an Event of Default or Default or the failure to satisfy any condition set forth in Section
3. If any such Lender fails to make available to Agent the amount of such Lender’s Pro Rata
Share of a Letter of Credit Disbursement as provided in this Section, such Lender shall be deemed
to be a Defaulting Lender and Agent (for the account of the Issuing Lender) shall be entitled to
recover such amount on demand from such Lender together with interest thereon at the Defaulting
Lender Rate until paid in full.




          (c) Each Borrower hereby agrees to indemnify, save, defend, and hold the Lender Group, each
Issuing Lender and each Underlying Issuer harmless from any damage, loss, cost, expense, or
liability (other than Taxes, which shall be governed by Section 16), and reasonable
attorneys fees incurred by Issuing Lender, any other member of the Lender Group, or any Underlying
Issuer arising out of or in connection with any Reimbursement Undertaking or any Letter of Credit;
provided, however, that no Borrower shall be obligated hereunder to indemnify for
any loss, cost, expense, or liability that a court of competent jurisdiction finally determines to
have resulted from the gross negligence or willful misconduct of such Indemnified Person or a
breach in bad faith by such Indemnified Person of any Loan Document. Each Borrower agrees to be
bound by each of the Issuing Lender’s and Underlying Issuer’s respective regulations and
interpretations of any Letter of Credit or by Issuing Lender’s interpretations of any Reimbursement
Undertaking even though this interpretation may be different from such Borrower’s own, and each
Borrower understands and agrees that none of the Issuing Lender, the Lender Group, or any
Underlying Issuer shall be liable for any error, negligence, or mistake, whether of omission or
commission, in following any Borrower’s instructions or those contained in the Letter of Credit or
any modifications, amendments, or supplements thereto. Each Borrower understands that the
Reimbursement Undertakings may require Issuing Lender to indemnify the Underlying Issuer for
certain costs or liabilities arising out of claims by a Borrower against such Underlying Issuer.
Each Borrower hereby agrees to indemnify, save, defend, and hold Issuing Lender and the other
members of the Lender Group harmless with respect to any loss, cost, expense (including reasonable
attorneys fees), or liability (other than
Taxes, which shall be governed by Section 16) incurred by them as a result of the
Issuing





25









 







Lender’s indemnification of an Underlying Issuer; provided, however, that
no Borrower shall be obligated hereunder to indemnify for any such loss, cost, expense, or
liability to the extent that it is caused by the gross negligence or willful misconduct of such
Indemnified Person or a breach in bad faith by such Indemnified Person of any Loan Document (in
each case, as finally determined by a court of competent jurisdiction). Each Borrower hereby
acknowledges and agrees that none of the Issuing Lender, any other member of the Lender Group, or
any Underlying Issuer shall be responsible for delays, errors, or omissions resulting from the
malfunction of equipment in connection with any Letter of Credit.




          (d) Each Borrower hereby authorizes and directs any Underlying Issuer to deliver to the
Issuing Lender all instruments, documents, and other writings and property received by such
Underlying Issuer pursuant to such Underlying Letter of Credit and to accept and rely upon the
Issuing Lender’s instructions with respect to all matters arising in connection with such
Underlying Letter of Credit and the related application.




          (e) The Borrowers hereby agree to pay to each Issuing Lender (other than an Underlying
Issuer), for its own account, a fronting fee in respect of each Letter of Credit issued by it (the
“Fronting Fee”) for the period from and including the date of issuance of such Letter of
Credit to and including the date of termination or expiration of such Letter of Credit, computed at
a rate per annum equal to 0.250% on the undrawn amount of such Letter of Credit; provided
that purposes of determining the Fronting Fee for Existing Letters of Credit, such Letters of
Credit shall be deemed to have been issued on the Closing Date. Accrued Fronting Fees shall be due
and payable quarterly in arrears on the first Business Day of each succeeding calendar quarter
occurring after the Closing Date and upon the first day on or after the termination of the Revolver
Commitments upon which no Letters of Credit remain outstanding. In addition, the Borrowers shall
pay the applicable Issuing Lender from time to time, the customary charges from time to time of
such Issuing Bank with respect to the issuance, amendment, transfer, administration, cancellation
and conversion of, and drawings under, such Letters of Credit and customary processing fees. Any
Fronting Fee shall be a Lender Group Expense for the purposes of this Agreement.




          (f) If by reason of (i) any change after the Closing Date in any applicable law, treaty, rule,
or regulation or any change in the interpretation or application thereof by any Governmental
Authority, or (ii) compliance by the Issuing Lender, any other member of the Lender Group, or
Underlying Issuer with any direction, request, or requirement (irrespective of whether having the
force of law) of any Governmental Authority or monetary authority including, Regulation D of the
Federal Reserve Board as from time to time in effect (and any successor thereto):




               (i) any reserve, deposit, or similar requirement is or shall be imposed or modified in respect
of any Letter of Credit issued or caused to be issued hereunder or hereby, or



               (ii) there shall be imposed on the Issuing Lender, any other member of the Lender Group, or
Underlying Issuer any other condition regarding any Letter of Credit or Reimbursement Undertaking,



26









 




and the result of the foregoing is to increase, directly or indirectly, the cost to the Issuing
Lender, any other member of the Lender Group, or an Underlying Issuer of issuing, making,
guaranteeing, or maintaining any Reimbursement Undertaking or Letter of Credit or to reduce the
amount receivable in respect thereof, then, and in any such case, Agent may, at any time within a
reasonable period after the additional cost is incurred or the amount received is reduced, notify
Borrowers, and the Applicable Borrowers shall pay within 30 days after demand therefor, such
amounts as Agent may specify to be necessary to compensate the Issuing Lender, any other member of
the Lender Group, or an Underlying Issuer for such additional cost or reduced receipt, together
with interest on such amount from the date of such demand until payment in full thereof at the
applicable Floating Rate; provided, however, that (a) in the case of a Foreign
Letter of Credit denominated in Euros, Agent may convert the then outstanding principal amount of
each such Foreign Letter of Credit to a Base Rate Loan denominated in Dollars and (b) no Borrower
shall be required to provide any compensation pursuant to this Section 2.11(f) for any such
amounts incurred more than 180 days prior to the date on which the demand for payment of such
amounts is first made to Borrowers; provided further, however, that if an
event or circumstance giving rise to such amounts is retroactive, then the 180-day period referred
to above shall be extended to include the period of retroactive effect thereof. The determination
by Agent of any amount due pursuant to this Section 2.11(f), as set forth in a certificate
setting forth the calculation thereof in reasonable detail, shall, in the absence of manifest or
demonstrable error, be final and conclusive and binding on all of the parties hereto.




     2.12 LIBOR Option.



          (a) Interest and Interest Payment Dates. In lieu of having interest charged at the rate based
upon the Base Rate, Borrowers shall have the option, subject to Section 2.12(b) below (the
“LIBOR Option”) to have interest on all or a portion of the Advances (whether at the time
when made (unless otherwise provided herein), upon conversion from a Base Rate Loan to a LIBOR Rate
Loan, or upon continuation of a LIBOR Rate Loan as a LIBOR Rate Loan) at a rate of interest based
upon the LIBOR Rate. Interest on LIBOR Rate Loans shall be payable on the earliest of (i) the last
day of the Interest Period applicable thereto; (ii) the date on which all or any portion of the
Obligations are accelerated pursuant to the terms hereof, or (iii) the date on which this Agreement
is terminated pursuant to the terms hereof. With respect to any LIBOR Rate Loan denominated Euros
(other than Swingline Loans denominated in Euros), at the end of any Interest Period applicable to
a Borrowing thereof, the Applicable Borrower, as applicable, may elect to split the respective
Borrowing into two or more Borrowings of the same Type or combine two or more Borrowings of the
same Type into a single Borrowing, in each case, by having an Authorized Person of the Applicable
Borrower give notice thereof, together with its election of one or more Interest Periods, in each
case so long as each resulting Borrowing has an Interest Period which complies with the definition
thereof. If upon the expiration of any Interest Period applicable to a Borrowing of LIBOR Rate
Loans, the Applicable Borrower has failed to elect, or is not permitted to elect, a new Interest
Period to be applicable to such LIBOR Rate Loan, as provided above, the Applicable Borrower shall
be deemed to have elected (A) with respect to LIBOR Rate Loans denominated in Dollars, to convert
such LIBOR Rate Loans into Base Rate Loans and (B) with respect to LIBOR Rate Loans denominated in
Euros, to convert such LIBOR Rate Loans into Base Rate Loans denominated in Dollars. At any time
that an Event of Default has occurred and is continuing, unless consented to by the Required
Lenders in writing, the Borrowers no longer shall have the option to request that Advances bear
interest at a






27









 







rate based upon the LIBOR Rate, and the Required Lenders may demand that any or all of the
then outstanding Advances denominated in Euros be redenominated into Dollars in the amount of the
Dollar Equivalent thereof, and that all LIBOR Rate Loans be automatically converted to Base Rate
Loans on the last day of the then current Interest Period with respect thereto.




          (b) LIBOR Election.




               (i) Borrowers may, at any time and from time to time, so long as no Event of Default has
occurred and is continuing (unless the Required Lenders otherwise agree), elect to exercise the
LIBOR Option by notifying Agent prior to 12:00 noon (New York time) at least 3 Business Days prior
to the commencement of the proposed Interest Period (the “LIBOR Deadline”). Notice of
Borrowers’ election of the LIBOR Option for a permitted portion of the Advances and an Interest
Period pursuant to this Section shall be made by delivery to Agent of a LIBOR Notice received by
Agent before the LIBOR Deadline, or by telephonic notice received by Agent before the LIBOR
Deadline (to be confirmed by delivery to Agent of a LIBOR Notice received by Agent prior to 5:00
p.m. (New York time) on the same day). Promptly upon its receipt of each such LIBOR Notice, Agent
shall provide a copy thereof to each of the affected Lenders.



               (ii) Each LIBOR Notice shall be irrevocable and binding on each Applicable Borrower. In
connection with each LIBOR Rate Loan, each Applicable Borrower shall indemnify, defend, and hold
Agent and Lenders harmless against any loss, cost, or expense actually incurred by Agent or any
Lender as a result of (A) the payment of any principal of any LIBOR Rate 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 LIBOR Rate Loan other than on the last day of the Interest Period
applicable thereto, or (C) the failure to borrow, convert, continue or prepay any LIBOR Rate Loan
on the date specified in any LIBOR Notice delivered pursuant hereto (such losses, costs, or
expenses, “Funding Losses”). A certificate of Agent or a Lender delivered to the
Applicable Borrowers setting forth in reasonable detail any amount or amounts that Agent or such
Lender is entitled to receive pursuant to this Section 2.12 shall be conclusive absent
manifest error. The Applicable Borrowers shall pay such amount to Agent or the Lender, as
applicable, within 30 days of the date of its receipt of such certificate. If a payment of a LIBOR
Rate Loan on a day other than the last day of the applicable Interest Period would result in a
Funding Loss, Agent may, in its sole discretion at the request of the Applicable Borrowers, hold
the amount of such payment as cash collateral in support of the Obligations until the last day of
such Interest Period and apply such amounts to the payment of the applicable LIBOR Rate Loan on
such last day, it being agreed that Agent has no obligation to so defer the application of payments
to any LIBOR Rate Loan and that, in the event that Agent does not defer such application, Borrowers
shall be obligated to pay any resulting Funding Losses.



               (iii) Borrowers shall have not more than 10 LIBOR Rate Loans denominated in Dollars or more
than 10 LIBOR Rate Loans denominated in Euros in effect at any given time. Borrowers only may
exercise the LIBOR Option for proposed LIBOR Rate Loans of at least $1,000,000.



          (c) Conversion. Borrowers may convert LIBOR Rate Loans (other than LIBOR Rate Loans
denominated in Euros) to Base Rate Loans at any time; provided, however,
that in the event that LIBOR Rate Loans are converted or prepaid on any date that is not the
last




28









 







day of the Interest Period applicable thereto, including as a result of any automatic
prepayment through the required application by Agent of proceeds of Collateral in accordance with
Section 2.4(b) or for any other reason, including early termination of the term of this
Agreement or acceleration of all or any portion of the Obligations pursuant to the terms hereof,
each Applicable Borrower shall indemnify, defend, and hold Agent and Lenders and their Participants
harmless against any and all Funding Losses in accordance with Section 2.12 (b)(ii).




          (d) Special Provisions Applicable to LIBOR Rate.




               (i) The LIBOR Rate may be adjusted by Agent with respect to any Lender on a prospective basis
to take into account any additional or increased costs to such Lender of maintaining or obtaining
any eurodollar deposits or increased costs, in each case, due to changes in applicable law (other
than changes in laws relative to Taxes, which shall be governed by Section 16) occurring
subsequent to the commencement of the then applicable Interest Period, including changes in tax
laws (except changes of general applicability in corporate income tax laws) and, with respect to
Obligations denominated in Dollars, changes in the reserve requirements imposed by the Board of
Governors of the Federal Reserve System (or any successor), which additional or increased costs
would increase the cost of funding or maintaining loans bearing interest at the LIBOR Rate. In any
such event, the affected Lender shall give Borrowers and Agent notice of such a determination and
adjustment and Agent promptly shall transmit the notice to each other Lender and, upon its receipt
of the notice from the affected Lender, Borrowers may, by notice to such affected Lender (x)
require such Lender to furnish to Borrowers a statement setting forth the basis for adjusting such
LIBOR Rate and the method for determining the amount of such adjustment, or (y) repay the LIBOR
Rate Loans with respect to which such adjustment is made (together with any amounts due under
Section 2.12(b)(ii)).



               (ii) In the event that (A) any change in any law, regulation, treaty, or directive, or any
change therein or in the interpretation or application thereof, shall at any time after the date
hereof, in the reasonable opinion of any Lender, make it unlawful or impossible for such Lender to
fund or maintain LIBOR Rate Loans or to continue such funding or maintaining, or to determine or
charge interest rates at the LIBOR Rate or (B)(1) Dollar or Euro deposits are not being offered to
banks in the London interbank eurodollar market for the applicable amount and Interest Period of a
requested LIBOR Rate Loan, (2) adequate and reasonable means do not exist for determining the LIBOR
Rate for any requested Interest Period with respect to a proposed LIBOR Rate Loan, or (3) the LIBOR
Rate for any requested Interest Period with respect to a proposed LIBOR Rate Loan does not
adequately and fairly reflect the cost to such Lenders of funding such Loan, such Lender shall give
notice of such changed circumstances to Agent and Borrowers and Agent promptly shall transmit the
notice to each other Lender and (x) in the case of any LIBOR Rate Loans of such Lender that are
outstanding, the date specified in such Lender’s notice shall be deemed to be the last day of the
Interest Period of such LIBOR Rate Loans, and interest upon the LIBOR Rate Loans of such Lender
thereafter shall accrue interest at the rate then applicable to Base Rate Loans, and (y) Borrowers
shall not be entitled to elect the LIBOR Option until such Lender determines that it would no
longer be unlawful or impractical to do so.



          (e) No Requirement of Matched Funding. Anything to the contrary contained herein
notwithstanding, neither Agent, nor any Lender, nor any of their Participants, is





29









 







required actually
to acquire eurodollar deposits to fund or otherwise match fund any Obligation as to which interest
accrues at the LIBOR Rate.




     2.13 Capital Requirements; Exchange Indemnification; Regulatory Limitation.



          (a) If, after the date hereof, any Lender determines in good faith that (i) the adoption of or
change in any law, rule, regulation or guideline regarding capital or reserve requirements for
banks or bank holding companies, or any change in the interpretation, implementation, or
application thereof by any Governmental Authority charged with the administration thereof, or (ii)
compliance by such Lender or its parent bank holding company with any guideline, request or
directive of any such entity regarding capital adequacy (whether or not having the force of law),
has the effect of reducing the return on such Lender’s or such holding company’s capital as a
consequence of such Lender’s Revolver Commitments hereunder to a level below that which such Lender
or such holding company could have achieved but for such adoption, change, or compliance (taking
into consideration such Lender’s or such holding company’s then existing policies with respect to
capital adequacy and assuming the full utilization of such entity’s capital) by any amount deemed
by such Lender to be material, then such Lender may notify the Company and Agent thereof.
Following receipt of such notice, the Applicable Borrowers agree to pay such Lender on demand the
amount of such reduction of return of capital as and when such reduction is determined, payable
within 30 days after presentation by such Lender of a statement in the amount and setting forth in
reasonable detail such Lender’s calculation thereof and the assumptions upon which such calculation
was based (which statement shall be deemed true and correct absent manifest error). In determining
such amount, such Lender may use any reasonable averaging and attribution methods. Failure or
delay on the part of any Lender to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender’s right to demand such compensation; provided that no
Borrower shall be required to compensate a Lender pursuant to this Section for any reductions in
return incurred more than 180 days prior to the date that such Lender notifies Borrowers of such
law, rule, regulation or guideline giving rise to such reductions and of such Lender’s intention to
claim compensation therefor, except that if such claim arises by reason of the adoption of or
change in any law, rule, regulation or guideline that is retroactive, then the 180-day period
referred to immediately above shall be extended to include the period of retroactive effect
thereof; provided further, that no Borrower shall be required to compensate a
Lender pursuant to this clause (a) to the extent such Lender has been adequately compensated for
any such reduction or increased cost by the payment of the Mandatory Cost.




          (b) If any Lender requests additional or increased costs referred to in Section
2.12(d)(i) or amounts under Section 2.13(a) or Section 16 or sends a notice
under Section 2.12(d)(ii) or in connection with the application of Mandatory Cost, in each
case, relative to changed circumstances (any such Lender, an “Affected Lender”), then such
Affected Lender shall use reasonable efforts to promptly designate a different one of its lending
offices or to assign its rights and obligations hereunder to another of its offices or branches, if
(i) in the reasonable judgment of such Affected Lender, such designation or assignment would
eliminate or reduce amounts payable pursuant to Section 2.12(d)(i), Section 2.13(a)
or Section 16, as applicable, or would eliminate the illegality or impracticality of
funding or maintaining LIBOR
Rate Loans or eliminate the application of Mandatory Cost and (ii) in the reasonable judgment
of such Affected Lender, such designation or assignment would not subject it to any material





30









 







unreimbursed cost or expense and would not otherwise be materially disadvantageous to it.
Borrowers agree to pay all reasonable out-of-pocket costs and expenses incurred by such Affected
Lender in connection with any such designation or assignment. If, after such reasonable efforts,
such Affected Lender does not so designate a different one of its lending offices or assign its
rights to another of its offices or branches so as to eliminate Borrowers’ obligation to pay any
future amounts to such Affected Lender pursuant to Section 2.12(d)(i), Section
2.13(a), Section 16 or as a result of the application of Mandatory Cost, as applicable,
or to enable Borrowers to obtain LIBOR Rate Loans, then Borrowers (without prejudice to any amounts
then due to such Affected Lender under Section 2.12(d)(i), Section 2.13(a),
Section 16 or as a result of the application of Mandatory Cost, as applicable) may, unless
prior to the effective date of any such assignment the Affected Lender withdraws its request for
such additional amounts under Section 2.12(d)(i), Section 2.13(a), Section
16 or as a result of the application of Mandatory Cost, as applicable, or indicates that it is
no longer unlawful or impractical to fund or maintain LIBOR Rate Loans, may seek a substitute
Lender reasonably acceptable to Agent (if such Lender is not an existing Lender) to purchase the
Obligations owed to such Affected Lender and such Affected Lender’s Revolver Commitments hereunder
(a “Replacement Lender”), and if such Replacement Lender agrees to such purchase, such
Affected Lender shall assign to the Replacement Lender its Obligations and Revolver Commitments,
pursuant to an Assignment and Acceptance Agreement, and upon such purchase by the Replacement
Lender, such Replacement Lender shall be deemed to be a “Lender” for purposes of this Agreement and
such Affected Lender shall cease to be a “Lender” for purposes of this Agreement.




          (c) The US Borrowers shall, upon demand from any member of the Lender Group, pay to such
Person, the amount of (i) any loss or cost or increased cost incurred by such Person, (ii) any
reduction in any amount payable to or in the effective return on the capital to such Person, (iii)
any interest or any other return, including principal, foregone by such Person as a result of the
introduction of, change over to or operation of the Euro or (iv) any currency exchange loss that
such Person sustains, in each case of clauses (i) through (iv), as a result of (1) any payment
being made by any Borrower in a currency other than that originally extended to such Borrower or
(2) the failure of any Borrower to repay an Advance or Letter of Credit Disbursement denominated in
Euros. A certificate of Agent setting forth in reasonable detail the basis for determining such
additional amount or amounts necessary to compensate such member of the Lender Group or shall be
conclusively presumed to be correct save for manifest error.




          (d) In the event, as a result of increases in the value of the Euro against the Dollar or for
any other reason, the obligation of any Lender to make Advances (taking into account the Dollar
Equivalent of the Obligations and all other indebtedness required to be aggregated under 12
U.S.C.A. §84, as amended, the regulations promulgated thereunder and any other Law) is determined
by such Lender to exceed its then applicable legal lending limit under 12 U.S.C.A. §84, as amended,
and the regulations promulgated thereunder, or any other Law, the amount of additional Advances or
Letters of Credit such Lender shall be obligated to make or issue or participate in hereunder shall
immediately be reduced to the maximum amount which such Lender may legally advance (as determined
by such Lender), the obligation of each of the remaining Lenders hereunder, to the extent necessary
under such laws and regulations (as
determined by each of the Lenders, with respect to the applicability of such laws and
regulations to itself), shall be proportionately reduced, based on its applicable Pro Rata Share,
and the




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Borrowers shall reduce, or cause to be reduced, complying to the extent practicable with
the remaining provisions hereof, the Obligations outstanding hereunder by an amount sufficient to
comply with such maximum amounts.




     2.14 Liability Among Loan Parties.



          (a) Obligations of the Foreign Loan Parties. Anything in this Agreement or any other Loan
Document to the contrary notwithstanding, none of the Foreign Borrower, the Foreign Guarantors, or
any other Foreign Subsidiary of the Company shall be liable or in manner responsible for, or be
deemed to have guaranteed, directly or indirectly, whether as a primary obligor, guarantor,
indemnitor, or otherwise, and none of their assets shall secure, directly or indirectly, any
obligations (including, without limitation, principal, interest, fees, penalties, premiums,
expenses, charges, reimbursements, indemnities or any other US Obligations) in respect of any US
Loan Party under this Agreement, any other Loan Document, or any Bank Product Agreement or any
other agreement executed and/or delivered in connection with any of the foregoing.




          (b) Joint and Several Liability of US Borrowers.




               (i) Each US Borrower is accepting joint and several liability hereunder and under the other
Loan Documents in consideration of the financial accommodations to be provided by the Lender Group
under this Agreement, for the mutual benefit, directly and indirectly, of each US Borrower and in
consideration of the undertakings of the other US Borrowers to accept joint and several liability
for the Obligations.



               (ii) Each US Borrower, jointly and severally, hereby irrevocably and unconditionally accepts,
not merely as a surety but also as a co-debtor, joint and several liability with the other US
Borrowers, with respect to the payment and performance of all of the Obligations (including any
Obligations arising under this Section 2.14(b)), it being the intention of the parties
hereto that all the Obligations shall be the joint and several obligations of each US Borrower
without preferences or distinction among them.



               (iii) If and to the extent that any US Borrower shall fail to make any payment with respect to
any of the Obligations as and when due or to perform any of the Obligations in accordance with the
terms thereof, then in each such event the other US Borrowers will make such payment with respect
to, or perform, such Obligation until such time as all of the Obligations are paid in full.



               (iv) The Obligations of each US Borrower under the provisions of this Section 2.14(b)
constitute the absolute and unconditional, full recourse Obligations of each US Borrower
enforceable against each US Borrower to the full extent of its properties and assets, irrespective
of the validity, regularity or enforceability of the provisions of this Agreement (other than this
Section 2.14(b)(iv)) or any other circumstances whatsoever.



               (v) Except as otherwise expressly provided in this Agreement, each US Borrower hereby waives
notice of acceptance of its joint and several liability, notice of any Advances or Letters of
Credit issued under or pursuant to this Agreement, notice of the occurrence of any Default, Event
of Default, or of any demand for any payment under this



32









 




Agreement, notice of any action at any time
taken or omitted by Agent or Lenders under or in respect of any of the Obligations, any requirement
of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all
demands, notices and other formalities of every kind in connection with this Agreement (except as
otherwise provided in this Agreement). Each US Borrower hereby assents to, and waives notice of,
any extension or postponement of the time for the payment of any of the Obligations, the acceptance
of any payment of any of the Obligations, the acceptance of any partial payment thereon, any
waiver, consent or other action or acquiescence by Agent or Lenders at any time or times in respect
of any default by any US Borrower in the performance or satisfaction of any term, covenant,
condition or provision of this Agreement, any and all other indulgences whatsoever by Agent or
Lenders in respect of any of the Obligations, and the taking, addition, substitution or release, in
whole or in part, at any time or times, of any security for any of the Obligations or the addition,
substitution or release, in whole or in part, of any US Borrower. Without limiting the generality
of the foregoing, each US Borrower assents to any other action or delay in acting or failure to act
on the part of any Agent or Lender with respect to the failure by any US Borrower to comply with
any of its respective Obligations, including, without limitation, any failure strictly or
diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or
regulations thereunder, which might, but for the provisions of this Section 2.14(b) afford
grounds for terminating, discharging or relieving any US Borrower, in whole or in part, from any of
its Obligations under this Section 2.14(b), it being the intention of each US Borrower
that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of each US
Borrower under this Section 2.14(b) shall not be discharged except by performance and then
only to the extent of such performance. The Obligations of each US Borrower under this Section
2.14(b) shall not be diminished or rendered unenforceable by any winding up, reorganization,
arrangement, liquidation, reconstruction or similar proceeding with respect to any other US
Borrower or any Agent or Lender.




               (vi) Each US Borrower represents and warrants to Agent and Lenders that such US Borrower is
currently informed of the financial condition of US Borrowers and of all other circumstances which
a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations.
Each US Borrower further represents and warrants to Agent and Lenders that such US Borrower has
read and understands the terms and conditions of the Loan Documents. Each US Borrower hereby
covenants that such US Borrower will continue to keep informed of US Borrowers’ financial condition
and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the
Obligations.



               (vii) The provisions of this Section 2.14(b) are made for the benefit of Agent, each
member of the Lender Group, each Bank Product Provider, and their respective successors and
assigns, and may be enforced by it or them from time to time against any or all US Borrowers as
often as occasion therefor may arise and without requirement on the part of Agent, any member of
the Lender Group, any Bank Product Provider, or any of their successors or assigns first to marshal
any of its or their claims or to exercise any of its or their rights against any US Borrower or to
exhaust any remedies available to it or them against any US Borrower or
to resort to any other source or means of obtaining payment of any of the Obligations
hereunder or to elect any other remedy. The provisions of this Section 2.14(b) shall
remain in effect until all of the Obligations shall have been paid in full or otherwise fully
satisfied. If at any time, any payment, or any part thereof, made in respect of any of the
Obligations, is rescinded or must



33









 




otherwise be restored or returned by Agent or any Lender upon the
insolvency, bankruptcy or reorganization of any US Borrower, or otherwise, the provisions of this
Section 2.14(b) will forthwith be reinstated in effect, as though such payment had not been
made.




               (viii) Each US Borrower hereby agrees that it will not enforce any of its rights of
contribution or subrogation against any other US Borrower with respect to any liability incurred by
it hereunder or under any of the other Loan Documents, any payments made by it to Agent or Lenders
with respect to any of the Obligations or any collateral security therefor until such time as all
of the Obligations have been paid in full in cash. Any claim which any US Borrower may have
against any other US Borrower with respect to any payments to any Agent or any member of the Lender
Group hereunder or under any of the Bank Product Agreements are hereby expressly made subordinate
and junior in right of payment, without limitation as to any increases in the Obligations arising
hereunder or thereunder, to the prior payment in full in cash of the Obligations and, in the event
of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar
proceeding under the laws of any jurisdiction relating to any US Borrower, its debts or its assets,
whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any
payment or distribution of any character, whether in cash, securities or other property, shall be
made to any other US Borrower therefor.



               (ix) Each US Borrower hereby agrees that after the occurrence and during the continuance of
any Default or Event of Default, such US Borrower will not demand, sue for or otherwise attempt to
collect any indebtedness of any other US Borrower owing to such US Borrower until the Obligations
shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such US Borrower
shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall
be collected, enforced and received by such US Borrower as trustee for Agent, and such US Borrower
shall deliver any such amounts to Agent for application to the Obligations in accordance with
Section 2.4(b).



     2.15 Collection of Accounts; Cash Dominion.



          (a) Collection Accounts.




               (i) US Collection Accounts. Each US Loan Party, Agent and the banks listed on Schedule
4.15 that maintain deposit accounts of such Loan Party as of the Closing Date or other banks
selected by the Company and reasonably acceptable to Agent (the “US Collection Banks”)
shall, within the Post Closing Period enter into and thereafter maintain Control Agreements in
respect of each of the US Collection Accounts. Each US Loan Party shall instruct all Account
Debtors of such US Loan Party to remit all payments on Accounts to the applicable US post office
box or other lockbox address of the applicable US Collection Bank with respect to all Accounts of
such Account Debtor, which remittances shall be collected by the applicable US Collection Bank and
deposited in the applicable US Collection Account. All amounts received by the US Loan Parties and
any US Collection Bank in respect of any Account, in addition to all other cash, funds, checks,
electronic funds transfers, credits or other
items received from any source, shall upon receipt be deposited into a US Collection Account
or directly into the US Concentration Account.



               (ii) Canadian Collection Accounts. Each Canadian Guarantor, Agent and the banks listed on
Schedule 4.15 that maintain deposit accounts of such Loan Party as of the



34









 




Closing Date or
other banks selected by the Company and reasonably acceptable to Agent (the “Canadian
Collection Banks”) shall, within the Post Closing Period enter into and thereafter maintain
Control Agreements in respect of each of the Canadian Collection Accounts. Each Canadian Guarantor
shall instruct all Account Debtors of such Canadian Guarantor to remit all payments on Accounts to
the applicable US or Canadian post office box or other lockbox address of the applicable Canadian
Collection Bank with respect to all Accounts of such Account Debtor, which remittances shall be
collected by the applicable Canadian Collection Bank and deposited in the applicable Canadian
Collection Account. All amounts received by the Canadian Guarantors’ and any Canadian Collection
Bank in respect of any Account, in addition to all other cash, funds, checks, electronic funds
transfers, credits or other items received from any source, shall upon receipt be deposited into a
Canadian Collection Account or directly into the Canadian Concentration Account.




               (iii) Foreign (Non-Canadian) Collection Accounts. Each Foreign (Non-Canadian) Loan Party and
the banks listed on Schedule 4.15 that maintain deposit accounts of such Loan Party as of
the Closing Date or other banks selected by the Company and reasonably acceptable to Agent (the
“Foreign (Non-Canadian) Collection Banks”) shall, within the Post Closing Period exercise
commercially reasonable best efforts to enter into and thereafter maintain Control Agreements or
Cash Management Arrangements in respect of each Foreign (Non-Canadian) Collection Account. Each
Foreign (Non-Canadian) Loan Party shall instruct all Account Debtors of such Subsidiaries to remit
all payments on Accounts to the applicable post office box or other lockbox addresses of the
applicable Foreign (Non-Canadian) Collection Bank with respect to all Accounts of such Account
Debtor, which remittances shall be collected by the applicable Foreign (Non-Canadian) Collection
Bank and deposited in the applicable Foreign (Non-Canadian) Collection Account. All amounts
received by any Foreign (Non-Canadian) Loan Party and any Foreign (Non-Canadian) Collection Bank in
respect of any Account, in addition to all other cash, funds, checks, electronic funds transfers,
credits or other items received from any source, shall upon receipt be deposited into a Foreign
(Non-Canadian) Collection Account.



          (b) Disbursement Accounts.




               (i) US Disbursement Accounts. Each US Loan Party, Agent and each of the banks in which the US
Disbursement Accounts are maintained, shall, within the Post Closing Period enter into and
thereafter maintain Control Agreements with respect to each such US Disbursement Account (except
with respect to Excluded Accounts).



               (ii) Canadian Disbursement Accounts. Each Canadian Guarantor, Agent and each of the banks in
which the Canadian Disbursement Accounts are maintained, shall, within the Post Closing Period
enter into and thereafter maintain Control Agreements with respect to each such Canadian
Disbursement Account (except with respect to Excluded Accounts).



               (iii) Foreign (Non-Canadian) Disbursement Accounts. Each Foreign (Non-Canadian) Loan Party
shall and each of the banks in which the Foreign (Non-Canadian) Disbursement Accounts are
maintained, shall, within the Post Closing Period exercise commercially reasonable best efforts to
enter into and thereafter maintain Control Agreements or



35









 




Cash Management Arrangements with respect
to each such Foreign (Non-Canadian) Disbursement Account (except with respect to Excluded
Accounts).




          (c) Concentration Accounts.




               (i) US Concentration Account. All amounts held in the US Collection Accounts and US
Disbursement Accounts (other than Excluded Accounts) with respect to the US Loan Parties shall be
transferred by an electronic funds transfer method acceptable to Agent by the close of business on
each Business Day to an account with a financial institution selected by the Company, reasonably
acceptable to Agent and subject to a Control Agreement (the “US Concentration Account”).



               (ii) Canadian Concentration Account. All amounts held in the Canadian Collection Accounts and
Canadian Disbursement Accounts (other than Excluded Accounts) with respect to the Canadian
Guarantors shall be transferred by an electronic funds transfer method acceptable to Agent by the
close of business on each Business Day to an account with a financial institution selected by the
Company, reasonably acceptable to Agent and subject to a Control Agreement (the “Canadian
Concentration Account”).



          (d) Cash Dominion.




               (i) US Cash Dominion. The Control Agreements relating to the US Control Accounts shall
provide that during any Cash Dominion Period, all amounts held in the US Control Accounts from and
after the date requested by Agent, shall be sent by an electronic funds transfer method acceptable
to Agent no less frequently than once per Business Day to an account maintained by Agent (the
“US Dominion Account”). Subject to the terms of the respective US Security Document, all
amounts received in the US Dominion Account shall be applied (and allocated) by Agent on a daily
basis in accordance with Section 2.4(b).



               (ii) Canadian Cash Dominion. The Control Agreements relating to the Canadian Control Accounts
shall provide that during any Cash Dominion Period, all amounts held in the Canadian Control
Account from and after the date requested by Agent, shall be sent by an electronic funds transfer
method acceptable to Agent no less frequently than once per Business Day to an account maintained
by Agent (the “Canadian Dominion Account”). Subject to the terms of the respective Foreign
Security Document, all amounts received in the Canadian Dominion Account shall be applied (and
allocated) by Agent on a daily basis in accordance with Section 2.4(b).



               (iii) Foreign (Non-Canadian) Cash Dominion. The Control Agreements, Cash Management
Arrangements and/or the applicable Security Documents relating to the Foreign (Non-Canadian)
Control Accounts shall provide that during any Cash Dominion Period, all amounts held in the
Foreign (Non-Canadian) Control Accounts from and after the date requested by Agent, shall be sent
by an electronic funds transfer method acceptable
to Agent no less frequently than once per Business Day to an account maintained by Agent at an
affiliate of Agent (the “Foreign (Non-Canadian) Dominion Account”). Subject to the terms
of the respective Foreign Security Document, all amounts received in the Foreign (Non-Canadian)
Dominion Account shall be applied (and allocated) by Agent on a daily basis in accordance with
Section 2.4(b).



36









 





               (iv) Cash Dominion Termination. Subject to the proviso in the definition of Cash Dominion
Period, upon the termination of a Cash Dominion Period, following the Company’s request therefor,
the Agent shall promptly exercise its commercially reasonable efforts to execute and/or deliver to
the applicable depositary banks such notices and take such other actions as may be required to
cause, within a reasonable period of time following the Company’s request, the applicable Loan
Parties to have access to each of such Loan Parties’ deposit accounts that are under the exclusive
control (as between such Loan Party and Agent) of Agent to the same extent as, and in a manner
consistent with, the cash dominion arrangements in place immediately prior to the commencement of
such Cash Dominion Period. In furtherance of the Agent’s efforts, the Company and the other
affected Loan Parties shall take such actions as may be required to cause such Loan Parties’
deposit accounts to remain under the exclusive control of the Agent to the same extent as and in a
manner consistent with the cash dominion arrangements in place immediately prior to the
commencement of such Cash Dominion Period. All costs and expenses to effect the foregoing
(including reasonable legal fees and disbursements of counsel) shall be paid by the Loan Parties.



     2.16 Circumstances Affecting Euro Availability. In connection with any request for an
Advance denominated in Euros (“Euro Advances”) or Letter of Credit denominated in Euros
(“Euro Letters of Credit” and, together with the Euro Advances, the “Euro
Extensions”) or a continuation or extension thereof, if the introduction of, or any change in,
any Law or any change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any of Lenders (or any of their applicable lending office) with any
request or directive (whether or not having the force of law) of any such Governmental Authority,
central bank or comparable agency, shall make it unlawful or impossible for any of Lenders (or any
of their applicable lending office) to honor its obligations to make or maintain any Euro
Extensions, then Agent shall promptly give notice thereof to the Company and the other Lenders.
Thereafter, until Agent notifies the Company that such circumstances no longer exist, the
obligation of Lenders to make Euro Extensions or any continuation or extension thereof, as
applicable, shall be suspended and the Applicable Borrower shall either (a) repay in full (or cause
to be repaid in full) the then outstanding principal amount of such Euro Advances, together with
accrued interest thereon, on the last day of the then current Interest Period applicable to such
Euro Advances or (b) convert the then outstanding principal amount of each such Euro Advances to a
Base Rate Loan denominated in Dollars as of the last day of such Interest Period; provided
that if any of the Borrowers elects to make such conversion, the Applicable Borrowers shall pay to
Agent and Lenders any and all costs, fees and other expenses, if any, incurred by Agent and Lenders
in effecting such conversion.



     2.17 Increase Option.



          (a) Request for Increase. Provided there exists no Default or Event of Default, upon notice
to Agent (which shall promptly notify Lenders), the Company may from time to time, request an
increase in the Maximum Revolver Amount by an amount (for all such requests) not exceeding
$50,000,000; provided that any such request for an increase shall be in a minimum amount of
$10,000,000. At the time of sending such notice, the Company (in consultation with Agent) shall
specify the time period within which each Lender is requested to





37









 







respond (which shall in no event
be less than ten Business Days from the date of delivery of such notice to Lenders).




          (b) Lender Elections to Increase. Each Lender shall notify Agent within such time period
whether or not it agrees to increase its Revolver Commitment and, if so, whether by an amount equal
to, greater than, or less than its Pro Rata Share of such requested increase. Any Lender not
responding within such time period shall be deemed to have declined to increase its Revolver
Commitment.




          (c) Notification by Agent; Additional Lenders. Agent shall notify the Company and each Lender
of Lenders’ responses to each request made hereunder. To achieve the full amount of a requested
increase and subject to the approval of Agent, the Issuing Lender and the Swing Lender (which
approvals shall not be unreasonably withheld), the Company may also invite additional Eligible
Transferees to become Lenders pursuant to a joinder agreement in form and substance satisfactory to
Agent and its counsel.




          (d) Closing Date and Allocations. If the Maximum Revolver Amount is increased in accordance
with this Section, Agent and the Company shall determine the effective date (the “Increase
Closing Date”) and the final allocation of such increase. Agent shall promptly notify the
Company and Lenders of the final allocation of such increase and the Increase Closing Date.




          (e) Conditions to Effectiveness of Increase. As a condition precedent to such increase, the
Company shall deliver to Agent a certificate of each Loan Party dated as of the Increase Closing
Date signed by an Authorized Person of such Loan Party (i) certifying and attaching the resolutions
adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that,
before and after giving effect to such increase, (A) the representations and warranties of each
Borrower or its Subsidiaries contained in this Agreement or in the other Loan Documents shall be
true and correct in all material respects (except that such materiality qualifier shall not be
applicable to any representations and warranties that already are qualified or modified by
materiality in the text thereof) on the Increase Closing Date (except to the extent that such
representations and warranties relate solely to an earlier date), and (B) no Default or Event of
Default shall have occurred and be continuing on the Increase Closing Date, nor shall either result
from the making thereof. The outstanding Advances and Pro Rata Shares of Swing Loans and Letters
of Credit will be reallocated by Agent on the applicable Increase Closing Date among Lenders
(including the new Lenders providing a portion of such increase) in accordance with their revised
Pro Rata Shares and Lenders (including such new Lenders) agree (I) to make all payments and
adjustments necessary to effect such reallocation and Borrowers shall pay any and all costs
required pursuant to Section 2.12 in connection with such reallocation as if such
reallocation were a repayment and (II) without any further action or consent on the part of
any Lender, any changes to the Loan Documents as may be necessary to reflect such increase, if any,
that do not adversely affect the rights of any Lenders.




3. CONDITIONS; TERM OF AGREEMENT.




     3.1 Conditions Precedent to the Initial Extension of Credit. The obligation of each
Lender to make its initial extension of credit provided for hereunder is subject to the
fulfillment, to the satisfaction of Agent and each Lender, of each of the conditions precedent set



38









 




forth on Schedule 3.1 (the making of such initial extension of credit by a Lender being
conclusively deemed to be its satisfaction or waiver of the conditions precedent).




     3.2 Conditions Precedent to all Extensions of Credit. The obligation of the Lender
Group (or any member thereof) to make any Advances hereunder (or to extend any other credit
hereunder) at any time shall be subject to the following conditions precedent:



          (a) the representations and warranties of each Borrower contained in this Agreement or in the
other Loan Documents shall be true and correct in all material respects (except that such
materiality qualifier shall not be applicable to any representations and warranties that already
are qualified or modified by materiality in the text thereof) on and as of the date of such
extension of credit, as though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date);




          (b) no Default or Event of Default shall have occurred and be continuing on the date of such
extension of credit, nor shall either result from the making thereof; and




          (c) In the case of any Advance (or any other extension credit hereunder) to be denominated in
Euros, there shall not have occurred any change in national or international financial, political
or economic conditions or currency exchange rates or exchange controls which in the reasonable
opinion of (i) Agent, (ii) the Required Lenders (in the case of any Advance to be denominated in
Euros), (iii) the Swing Lender (in the case of any Swing Loans to be denominated in Euros) or the
Issuing Lender (in the case of any Letter of Credit to be denominated in Euros) would make it
unlawful or impossible for such extension of credit to be denominated in Euros.




     3.3 Maturity. This Agreement shall continue in full force and effect for a term
ending on January 25, 2016 (the “Maturity Date”). The foregoing notwithstanding, the
Lender Group, upon the election of the Required Lenders, shall have the right to terminate its
obligations under this Agreement immediately and without notice to the Company upon the occurrence
and during the continuation of an Event of Default.



     3.4 Effect of Maturity. On the Maturity Date, all commitments of the Lender Group to
provide additional credit hereunder shall automatically be terminated and all of the Obligations
(other than Bank Product Obligations that, at such time, are not required to be repaid or cash
collateralized in accordance with Section 1.4) immediately shall become due and payable
without notice or demand and Borrowers shall be required to repay all of the Obligations in full.
No termination of the obligations of the Lender Group (other than payment in full of the
Obligations and termination of the Revolver Commitments) shall relieve or discharge any Loan
Party of its duties, obligations, or covenants hereunder or under any other Loan Document and
Agent’s Liens in the Collateral shall continue to secure the Obligations and shall remain in effect
until all Obligations have been paid in full and the Revolver Commitments have been terminated.
When all of the Obligations have been paid in full and the Lender Group’s obligations to provide
additional credit under the Loan Documents have been terminated irrevocably, Agent will, at
Borrowers’ sole expense, execute and deliver any termination statements, lien releases, discharges
of security interests, and other similar discharge or release documents (and, if applicable, in
recordable form) as are reasonably necessary to release, as of record, Agent’s Liens and all
notices of security interests and liens previously filed by Agent.



39









 





     3.5 Early Termination by Borrowers. Borrowers have the option, at any time upon 5
Business Days’ prior written notice to Agent, to terminate this Agreement and terminate the
Revolver Commitments hereunder by repaying in full to Agent all of the Obligations (other than Bank
Product Obligations that, at such time, are not required to be repaid or cash collateralized in
accordance with Section 1.4).



     3.6 Conditions Subsequent. The obligation of the Lender Group (or any member thereof)
to continue to make Advances (or otherwise extend credit hereunder) is subject to the fulfillment,
on or before the date applicable thereto (or such longer date as Agent may agree), of the
conditions subsequent set forth on Schedule 3.6 (the failure by Borrowers to so perform or
cause to be performed such conditions subsequent as and when required by the terms thereof, shall
constitute an Event of Default).



4. REPRESENTATIONS AND WARRANTIES.




          In order to induce the Lender Group to enter into this Agreement, each Borrower makes the
following representations and warranties to the Lender Group which shall be true, correct, and
complete, in all material respects (except that such materiality qualifier shall not be applicable
to any representations and warranties that already are qualified or modified by materiality in the
text thereof), as of the Closing Date, and shall be true, correct, and complete, in all material
respects (except that such materiality qualifier shall not be applicable to any representations and
warranties that already are qualified or modified by materiality in the text thereof), as of the
date of the making of each Advance (or other extension of credit) made thereafter, as though made
on and as of the date of such Advance (or other extension of credit) (except to the extent that
such representations and warranties relate solely to an earlier date) and such representations and
warranties shall survive the execution and delivery of this Agreement:




     4.1 Due Organization and Qualification; Subsidiaries.



          (a) Each Loan Party (i) is duly organized and existing and in good standing (or its
equivalent, if any) under the laws of the jurisdiction of its organization, (ii) is qualified to do
business in any state, province or territory where the failure to be so qualified could reasonably
be expected to result in a Material Adverse Change, and (iii) has all requisite power and authority
to own and operate its properties, to carry on its business as now conducted and as proposed to be
conducted, to enter into the Loan Documents to which it is a party and to carry out the
Transactions or any transactions contemplated thereby.




          (b) Set forth on Schedule 4.1(b) is a complete and accurate description of the
authorized Stock of each Borrower, by class, and a description of the number of shares of each such
class that are issued and outstanding as of the Closing Date. Except with respect to the Existing
Senior Subordinated Notes and other than as described on Schedule 4.1(b), as of the Closing
Date there are no subscriptions, options, warrants, or calls relating to any shares of any
Borrower’s Stock, including any right of conversion or exchange under any outstanding security or
other instrument. Except with respect to the Existing Senior Subordinated Notes and as set forth
on Schedule 4.1(b), as of the Closing Date no Borrower is subject to any obligation
(contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its Stock or
any security convertible into or exchangeable for any of its Stock.



40









 







          (c) Set forth on Schedule 4.1(c), is a complete and accurate list of the Company’s
direct and indirect Subsidiaries as of the Closing Date, showing, as of the Closing Date: (i) the
percentage of Stock owned directly or indirectly by the Company in each of its Subsidiaries, (ii)
the number of shares of each class of common and preferred Stock (if any) authorized for each Loan
Party and its Restricted Subsidiaries, (iii) the number of the outstanding shares of each such
class owned directly or indirectly by the Company in each other Loan Party and Restricted
Subsidiary, and (iv) identification of whether such Subsidiary is a US Subsidiary Borrower, US
Guarantor, Foreign Borrower, Foreign Guarantor, Excluded Subsidiary, Restricted Subsidiary, Pledgor
and/or Unrestricted Subsidiary. All of the outstanding Stock of each such Restricted Subsidiary
has been validly issued and is fully paid and non-assessable.




          (d) Except as set forth on Schedule 4.1(c), as of the Closing Date there are no
subscriptions, options, warrants, or calls relating to any shares of the Restricted Subsidiaries’
Stock, including any right of conversion or exchange under any outstanding security or other
instrument. Except with respect to the Existing Senior Subordinated Notes and as set forth on
Schedule 4.1(c), as of the Closing Date neither Borrowers nor any of their Restricted
Subsidiaries are subject to any obligation (contingent or otherwise) to repurchase or otherwise
acquire or retire any shares of any Restricted Subsidiaries’ Stock or any security convertible into
or exchangeable for any such Stock.




     4.2 Due Authorization; No Conflict.



          (a) As to each Loan Party, the execution, delivery, and performance by such Loan Party of the
Loan Documents to which it is a party have been duly authorized by all necessary action on the part
of such Loan Party.




          (b) As to each Loan Party, the execution, delivery, and performance by such Loan Party of the
Loan Documents to which it is a party do not and will not (i) violate any material provision of
federal, state, provincial, or local law or regulation applicable to any Loan Party or its
Restricted Subsidiaries, the Governing Documents of any Loan Party or its Restricted Subsidiaries,
or any order, judgment, or decree of any court or other Governmental Authority binding on any Loan
Party or its Restricted Subsidiaries, (ii) conflict with, result in a breach of, or constitute
(with due notice or lapse of time or both) a default under any Material Contract of any Loan Party
or its Restricted Subsidiaries except to the extent that any such conflict, breach or default could
not individually or in the aggregate reasonably be expected to result in a Material Adverse Change,
(iii) result in or require the creation or imposition of any Lien of any nature
whatsoever upon any assets of any Loan Party, other than Permitted Liens, or (iv) require any
approval of any Loan Party’s interest holders or any approval or consent of any Person under any
Material Contract of any Loan Party, other than consents or approvals that have been obtained and
that are still in force and effect and except, in the case of Material Contracts, for consents or
approvals, the failure to obtain could not individually or in the aggregate reasonably be expected
to cause a Material Adverse Change.




     4.3 Governmental Consents. The execution, delivery, and performance by each Loan
Party of the Loan Documents to which such Loan Party is a party and the consummation of the
Transactions or any transactions contemplated by the Loan Documents do not and will not require any
registration with, consent, or approval of, or notice to, or other action with or by, any
Governmental Authority, other than registrations, consents, approvals, notices, or other actions



41









 




that have been obtained and that are still in force and effect and except for filings and
recordings with respect to the Collateral to be made on the Closing Date or promptly thereafter, or
otherwise delivered to Agent on the Closing Date for filing or recordation.




     4.4 Binding Obligations; Perfected Liens.



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




          (b) Agent’s Liens are validly created, perfected (other than any Deposit Accounts and
Securities Accounts not subject to a Control Agreement as permitted by Section 6.11(b), and
subject only to the filing of financing statements, the recordation of the Copyright Security
Agreement, and the recordation of the Mortgages, in each case, in the appropriate filing offices,
and, in each case, except as otherwise expressly set forth in the applicable Security Documents,
only to the extent perfection can be achieved by taking actions under the Laws of a Qualified
Jurisdiction), and first-priority Liens in and upon the ABL Priority Collateral and all Foreign
Collateral or, in the case of the Senior Note Priority Collateral, second-priority Liens, subject,
in each case, only to Permitted Liens and the relative priorities thereof.




     4.5 Title to Assets; No Encumbrances. Each of the Loan Parties and its Restricted
Subsidiaries has (a) good, sufficient and legal title to (in the case of fee interests in Real
Property), (b) valid leasehold interests in (in the case of leasehold interests in real or personal
property), and (c) good and marketable title to (in the case of all other personal property), all
of their respective assets reflected in their most recent financial statements delivered pursuant
to Section 5.1, in each case except for assets disposed of since the date of such financial
statements to the extent permitted hereby. All of such assets are free and clear of Liens except
for Permitted Liens.



     4.6 Jurisdiction of Organization; Location of Chief Executive Office; Organizational
Identification Number; Commercial Tort Claims.



          (a) The name of (within the meaning of Section 9-503 of the Code) and jurisdiction of
organization of each Loan Party and each of its Restricted Subsidiaries is set forth on
Schedule 4.6(a) (as such Schedule may be updated from time to time to reflect changes
resulting from transactions permitted under this Agreement).




          (b) The chief executive office of each Loan Party and each of its Restricted Subsidiaries is
located at the address indicated on Schedule 4.6(b) (as such Schedule may be updated from
time to time to reflect changes resulting from transactions permitted under this Agreement).




          (c) Each Loan Party’s and each of its Restricted Subsidiaries’ tax identification numbers and
organizational identification numbers (or foreign equivalent), if any, are identified on
Schedule 4.6(c) (as such Schedule may be updated from time to time to reflect changes
resulting from transactions permitted under this Agreement).




42









 








          (d) As of the Closing Date, no Loan Party holds any commercial tort claims that exceed
$1,000,000 in amount, except as set forth on Schedule 4.6(d).




     4.7 Litigation.



          (a) There are no actions, suits, proceedings, investigations or Environmental Action pending
or, to the knowledge of any Responsible Officer of any Borrower, threatened (a) with respect to any
Loan Document, (b) with respect to the Transactions or any transaction contemplated by this
Agreement or the other Loan Documents, or (c) that have resulted in, or could reasonably be
expected to result in, a Material Adverse Change. Additionally, there does not exist any judgment,
order or injunction prohibiting or imposing material adverse conditions upon the making of any
Advance (or any other extension of credit hereunder).




          (b) Schedule 4.7 sets forth a complete and accurate description of all actions, suits,
proceedings, investigations or Environmental Actions, as of the Closing Date, that are required by
the SEC to be disclosed on the Company’s Form 10-K, 10-Q or 8-K.




     4.8 Compliance with Laws. No Loan Party nor any of its Restricted Subsidiaries (a) is
in violation of any applicable Law that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Change, or (b) is subject to or in default with respect to
any final judgments, writs, injunctions, decrees, of any Governmental Authority, that, individually
or in the aggregate, could reasonably be expected to result in a Material Adverse Change.



     4.9 No Material Adverse Change. All historical financial statements relating to the
Company and its Subsidiaries that have been delivered by any of the Borrowers to Agent have been
prepared in accordance with GAAP (except, in the case of unaudited financial statements, for the
lack of footnotes and being subject to year-end audit adjustments) and present fairly in all
material respects, the Company and its Subsidiaries’ consolidated financial condition as of the
date thereof and results of operations for the period then ended. Since March 31, 2010, no
event, circumstance, or change has occurred that has or could reasonably be expected to result in a
Material Adverse Change with respect to the Company and its Subsidiaries.



     4.10 Fraudulent Transfer.



          (a) Each Borrower and its Restricted Subsidiaries (taken as a whole) is Solvent.




          (b) Each Loan Party receives valuable corporate benefit from entering into the Loan Documents
to which it is a party.




          (c) No transfer of property is being made by any Loan Party and no obligation is being
incurred by any Loan Party in connection with the Transactions or any transactions contemplated by
this Agreement or the other Loan Documents with the intent to hinder, delay, or defraud either
present or future creditors of such Loan Party.




     4.11 Employee Benefits.



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          (a) Schedule 4.11 sets forth, as of the Closing Date, each Plan and each Multiemployer
Plan. Each Plan (and each related trust, insurance contract or fund) is in compliance in all
respects with its terms and in all respects with all applicable laws, including, without
limitation, ERISA and the IRC, except to the extent that any such noncompliances, individually or
in the aggregate, could not reasonably be expected to result in a Material Adverse Change. Except
as, individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Change: (1) each Plan (and each related trust, if any) which is intended to be qualified
under Section 401(a) of the IRC has received a determination letter from the Internal Revenue
Service to the effect that it meets the requirements of Sections 401(a) and 501(a) of the IRC
covering all tax law changes prior to the Economic Growth and Tax Relief Reconciliation Act of 2001
or is comprised of a master or prototype plan that has received a favorable opinion letter from the
Internal Revenue Service (or the sponsor has applied for such determination letter or opinion
letter within the remedial amendment period); (2) except as disclosed on Schedule 4.11, no
Reportable Event has occurred with respect to a Plan (other than, and since the occurrence of, a
Reportable Event related to the filing of a petition under Chapter 11 of the Bankruptcy Code); (3)
no Borrower has received any written notice or otherwise has knowledge that any Multiemployer Plan
is insolvent or in reorganization; (4) except as disclosed on Schedule 4.11, no Plan has an
Unfunded Current Liability; (5) except as disclosed on Schedule 4.11, no Plan which is
subject to Section 412 of the IRC or Section 302 of ERISA has failed to meet the minimum funding
standards, within the meaning of such sections of the IRC or ERISA, or, except as disclosed on
Schedule 4.11, has applied for or received a waiver of a minimum funding standard or an
extension of any amortization period, within the meaning of Section 412 of the IRC or Section 303
or 304 of ERISA; (6) all required contributions with respect to a Plan and a Multiemployer Plan
have been made; (7) neither the Company nor any of its Subsidiaries nor any ERISA Affiliate has
incurred any outstanding material liability (including any indirect, contingent or secondary
liability) to or on account of a Plan or a Multiemployer Plan pursuant to Section 409, 502(i),
502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or
4975 of the IRC or expects to incur any such material liability under
any of the foregoing sections with respect to any Plan or a Multiemployer Plan; (8) to the
knowledge of any Borrower, no condition exists which presents a material risk to the Company or any
of its Subsidiaries or any ERISA Affiliate of incurring a material liability to or on account of a
Plan or a Multiemployer Plan pursuant to the foregoing provisions of ERISA and the IRC; (9) no
involuntary proceedings have been instituted to terminate or appoint a trustee to administer any
Plan which is subject to Title IV of ERISA; (10) no action, suit, proceeding, hearing, audit or
investigation with respect to the administration, operation or the investment of assets of any Plan
(other than routine claims for benefits) is pending, expected or threatened; (11) except as
disclosed on Schedule 4.11, neither the Company nor any of its Subsidiaries or any ERISA
Affiliate has filed, or is considering filing, an application under the Internal Revenue Service
Employee Plans Compliance Resolution System or the Department of Labor’s Voluntary Fiduciary
Correction Program with respect to any Plan or Multiemployer Plan; (12) using actuarial assumptions
and computation methods consistent with Part 1 of subtitle E of Title IV of ERISA, the aggregate
liabilities of the Company and its Subsidiaries and ERISA Affiliates to any Multiemployer Plans in
the event of a withdrawal therefrom, as of the close of the most recent fiscal year of each such
Multiemployer Plan ended prior to the date of the most recent Credit Event could not result in a
material liability to the Company, any of its Subsidiaries or an ERISA Affiliate; (13) each group
health plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the IRC) which covers
or has covered employees or former employees of the





44









 







Company, any of its Subsidiaries, or any ERISA
Affiliate has at all times been operated in material compliance with the provisions of Part 6 of
subtitle B of Title I of ERISA and Section 4980B of the IRC; (14) except as disclosed on
Schedule 4.11, no lien imposed under the IRC or ERISA on the assets of the Company or any
of its Subsidiaries or any ERISA Affiliate exists, or, to the knowledge of any Responsible Officer
of any Borrower, is likely to arise on account of any Plan or any Multiemployer Plan; and (15)
except as disclosed on Schedule 4.11, neither the Company nor any of its Subsidiaries
maintains or contributes to (a) any group health plan (as defined in Section 5000(b)(1) of the IRC)
which provides benefits to retired employees and/or other former employees (other than as required
by Section 601 of ERISA) or (b) any Plan, the obligations with respect to which could reasonably be
expected to have a Material Adverse Change.




          (b) Except as, individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Change: (1) each Foreign Pension Plan has been maintained in substantial
compliance with its terms and 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; (2) all required contributions with respect to a Foreign Pension
Plan have been made; (3) neither the Company nor any of its Subsidiaries has incurred any material
outstanding obligation in connection with the termination of or withdrawal from any Foreign Pension
Plan; and (4) the present value of the accrued benefit liabilities (whether or not vested) under
each Foreign Pension Plan, determined as of the end of the Company’s most recently ended fiscal
year on the basis of actuarial assumptions, each of which is reasonable, did not exceed the current
value of the assets of such Foreign Pension Plan allocable to such benefit liabilities or
alternatively, the Foreign Pension Plan is funded in compliance with applicable law in all respects
and the Company and its Subsidiaries have established adequate reserves for the present value of
such accrued benefit liabilities under such Foreign Pension Plan in the financial statements
delivered pursuant to Section 5.1.




     4.12 Environmental Condition. Except as set forth on Schedule 4.12, (a) to
Borrowers’ knowledge, after due inquiry, no Loan Party’s nor any of its Restricted Subsidiaries’
properties or assets has ever been designated or identified in any manner pursuant to any
environmental protection statute as a Hazardous Materials disposal site, (b) no Loan Party nor any
of its Restricted Subsidiaries has received notice that an Environmental Lien has attached to any
revenues or to any Real Property or to cause such Real Property to be subject to any material
restrictions on the ownership, occupancy, use of transferability of such Real Property by any Loan
Party or any of its Restricted Subsidiaries, and (c) no Loan Party nor any of its Restricted
Subsidiaries nor any of their respective facilities or operations is subject to any outstanding
written order, consent decree, or settlement agreement with any Person relating to any
Environmental Law or Environmental Liability that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Change.



     4.13 Intellectual Property. Each Loan Party and its Restricted Subsidiaries own, or
hold licenses in, all Intellectual Property that are necessary to the conduct of its business, and
has obtained assignments of all leases, licenses and other rights of whatever nature, in each case
necessary for the conduct of its business, without any known conflict with the rights of others
which, or the failure to own, or hold licenses in, or obtain assignments of which, as the case may
be, individually or in the aggregate, has resulted in, or could reasonably be expected to result
in,



45









 




a Material Adverse Change. Set forth on Schedule 4.13, as of the Closing Date, is a
true, correct, and complete listing of all Intellectual Property registered, or that is the subject
of an application for registration, with any Governmental Authority of any Qualified Jurisdiction
and other material Intellectual Property as to which any Loan Party is the owner or is an exclusive
licensee.




     4.14 Leases. Each Loan Party and its Restricted Subsidiaries enjoy peaceful and
undisturbed possession under all leases to which they are parties or under which they are
operating, and, subject to Permitted Protests, all of such leases are valid and subsisting and no
default by the applicable Loan Party or its Restricted Subsidiaries exists under any of them, in
each case, except to the extent such matters could not reasonably be expected to result in a
Material Adverse Change.



     4.15 Deposit Accounts and Securities Accounts. Set forth on Schedule 4.15 (as
updated by written notice to the Agent listing Deposit Accounts and/or Securities Accounts opened
after the Closing Date in accordance with, and subject to, Section 6.11(b) promptly after
opening such Deposit Accounts or Securities Accounts) is a listing of all of the Loan Parties’
Deposit Accounts and Securities Accounts, including, with respect to each bank or securities
intermediary (a) the name and address of such Person, (b) the account numbers of the Deposit
Accounts or Securities Accounts maintained with such Person, and (c) identification of any Excluded
Deposit Accounts.



     4.16 Complete Disclosure. All factual information taken as a whole (other than
forward-looking information and projections and information of a general economic nature and
general information about Borrowers’ industry) furnished by or on behalf of a Loan Party or its
Restricted Subsidiaries in writing to Agent or any Lender (including all information contained in
the Schedules hereto or in the other Loan Documents) for purposes of or in connection with this
Agreement or the other Loan Documents, and all other such factual information taken as a whole
(other than forward-looking information and projections and information of a general economic
nature and general information about Borrowers’ industry) hereafter furnished by or on behalf
of a Loan Party or its Restricted Subsidiaries in writing to Agent or any Lender will be, true and
accurate, in all material respects, on the date as of which such information is dated or certified
and not incomplete by omitting to state any fact necessary to make such information (taken as a
whole) not misleading in any material respect at such time in light of the circumstances under
which such information was provided. The Closing Date Projections represent, and as of the date on
which any other Projections are delivered to Agent, such additional Projections represent,
Borrowers’ good faith estimate, on the date such Projections are delivered, of the Loan Parties’
and their Restricted Subsidiaries’ future performance for the periods covered thereby based upon
assumptions believed by Borrowers to be reasonable at the time of the delivery thereof to Agent (it
being understood that such Projections are subject to uncertainties and contingencies, many of
which are beyond the control of the Loan Parties and their Restricted Subsidiaries, that no
assurances can be given that such Projections will be realized, and that actual results may differ
in a material manner from such Projections).



     4.17 Material Contracts. Set forth on Schedule 4.17 is a list of the Material
Contracts of each Loan Party and its Restricted Subsidiaries as of the Closing Date. Except for
matters which, either individually or in the aggregate, could not reasonably be expected to result
in a Material Adverse Change, each Material Contract (other than those that have expired at the end
of their normal terms) (a) is in full force and effect and is binding upon and enforceable against



46









 




the applicable Loan Party or its Restricted Subsidiary and, to Borrowers’ knowledge, after due
inquiry, each other Person that is a party thereto in accordance with its terms, (b) has not been
otherwise amended or modified (other than amendments or modifications permitted by Section
6.7(b)), and (c) is not in default due to the action or inaction of the applicable Loan Party
or its Restricted Subsidiary.




     4.18 Patriot Act. To the extent applicable, each Loan Party is in compliance, in all
material respects, with the (a) Trading with the Enemy Act, as amended, and each of the foreign
assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V,
as amended) and any other enabling legislation or executive order relating thereto, (b) Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
(USA Patriot Act of 2001) (the “Patriot Act”) and (c) Canadian Anti-Money Laundering
Anti-Terrorism Legislation. No part of the proceeds of the loans made hereunder will be used by
any Loan Party or any of their Affiliates, directly or indirectly, for any payments to any
governmental official or employee, political party, official of a political party, candidate for
political office, or anyone else acting in an official capacity, in order to obtain, retain or
direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt
Practices Act of 1977, as amended and Canadian Anti-Money Laundering Anti-Terrorism Legislation.



     4.19 Indebtedness. Set forth on Schedule 4.19 is a true and complete list of
all Indebtedness of each Loan Party and each of its Restricted Subsidiaries outstanding immediately
prior to the Closing Date that is to remain outstanding immediately after giving effect to the
closing hereunder on the Closing Date and such Schedule accurately sets forth the aggregate
principal amount of such Indebtedness as of the Closing Date. Part A of Schedule 4.19
lists all Indebtedness as described in the immediately preceding sentence which is owed to Persons
other than the Company or any of its Subsidiaries (after giving effect to the consummation of the
Transaction) (with all of such Indebtedness being therein identified as “Third Party
Scheduled Existing Indebtedness”) and Part B of Schedule 4.19 lists all Indebtedness as
described in the immediately preceding sentence which is owed to the Company and its Subsidiaries
(after giving effect to the Transaction) (with all of such Indebtedness being therein identified as
“Intercompany Scheduled Existing Indebtedness”).



     4.20 Payment of Taxes. All federal and all other material tax returns and reports of
each Loan Party and its Restricted Subsidiaries required by any Governmental Authority to be filed
by any of them have been timely (including applicable extensions) filed with the appropriate
Governmental Authority, and all federal and all other material taxes shown on such tax returns to
be due and payable and all federal and all other material assessments, fees and other governmental
charges upon a Loan Party and its Restricted Subsidiaries and upon their respective assets, income,
and operations that are due and payable have been paid to the appropriate Governmental Authority
when due and payable, other than those that are being contested in accordance with Section
5.5. Each Loan Party and each of its Restricted Subsidiaries have made adequate provision in
accordance with GAAP for all taxes not yet due and payable. Except as set forth on Schedule
4.20, as of the Closing Date, there is no action, suit, proceeding, investigation, audit, or
claim now pending or, to the knowledge of the Borrower, threatened by any authority regarding any
taxes relating to the Company and its Restricted Subsidiaries. Except as set forth on Schedule
4.20, neither the Company nor any of its



47









 




Restricted Subsidiaries has entered into an agreement
or waiver or been requested to enter into an agreement or waiver extending, or having the effect of
extending, any statute of limitations relating to the payment or collection of any material taxes
of the Company or any of its Restricted Subsidiaries, or is aware of any circumstances that would
cause the taxable years or other taxable periods of the Company or any of its Restricted
Subsidiaries not to be subject to the normally applicable statute of limitations.




     4.21 Margin Stock. No Loan Party nor any of its Restricted Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any Margin Stock. No part of the proceeds of the loans made to
Borrowers will be used to purchase or carry any such Margin Stock or to extend credit to others for
the purpose of purchasing or carrying any such margin stock or for any purpose that violates the
provisions of Regulation T, U or X of the Board of Governors of the United States Federal Reserve.



     4.22 Governmental Regulation. No Loan Party nor any of its Restricted Subsidiaries is
subject to regulation under the Federal Power Act or the Investment Company Act of 1940 or under
any other federal or state statute or regulation which may limit its ability to incur Indebtedness
or which may otherwise render all or any portion of the Obligations unenforceable. No Loan Party
nor any of its Restricted Subsidiaries is a “registered investment company” or a company
“controlled” by a “registered investment company” or a “principal underwriter” of a “registered
investment company” as such terms are defined in the Investment Company Act of 1940.



     4.23 OFAC. No Loan Party nor any of its Subsidiaries is in violation of any of the
country or list based economic and trade sanctions administered and enforced by OFAC. No Loan
Party nor any of its Subsidiaries (a) is a Sanctioned Person or a Sanctioned Entity, (b) has
its assets located in Sanctioned Entities, or (c) derives revenues from investments in, or
transactions with Sanctioned Persons or Sanctioned Entities. No proceeds of any loan made
hereunder will be used to fund any operations in, finance any investments or activities in, or make
any payments to, a Sanctioned Person or a Sanctioned Entity.



     4.24 Employee and Labor Matters. There is (i) no unfair labor practice complaint
pending or, to the knowledge of Borrowers, threatened against any Borrower or its Restricted
Subsidiaries before any Governmental Authority and no grievance or arbitration proceeding pending
or threatened against any Borrower or its Restricted Subsidiaries which arises out of or under any
collective bargaining agreement, (ii) no strike, labor dispute, slowdown, stoppage or similar
action or grievance pending or, to the knowledge of Borrowers, threatened in writing against any
Borrower or its Restricted Subsidiaries, or (iii) to the knowledge of Borrowers, after due inquiry,
no union representation question existing with respect to the employees of any Borrower or its
Restricted Subsidiaries and no union organizing activity taking place with respect to any of the
employees of any Borrower or its Restricted Subsidiaries, except (with respect to any matter
specified in clauses (i), (ii) or (iii) above, either individually or in the aggregate) such as has
not resulted in, or could not reasonably be expected to result in, a Material Adverse Change. No
Borrowers and no Restricted Subsidiary of any Borrower has incurred any liability or obligation
under the Worker Adjustment and Retraining Notification Act or similar state law, which remains
unpaid or unsatisfied. The hours worked and payments made to employees of each Borrower or its
Restricted Subsidiaries have not been in violation of the Fair



48









 




Labor Standards Act or any other
applicable legal requirements, except to the extent such violations could not, individually or in
the aggregate, reasonably be expected to result in a Material Adverse Change. All material
payments due from any Borrower or its Restricted Subsidiaries on account of wages and employee
health and welfare insurance and other benefits have been paid or accrued as a liability on the
books of any Borrower, except where the failure to do so could not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Change.




     4.25 Eligible Accounts. As to each Account that is identified by any Borrower as an
Eligible Account in a Borrowing Base Certificate submitted to Agent, such Account is (a) a bona
fide existing payment obligation of the applicable Account Debtor created by the sale and delivery
of Inventory or the rendition of services to such Account Debtor, (b) owed to one or more of the
Loan Parties, and (c) not excluded as ineligible by virtue of one or more of the excluding criteria
(other than Agent-discretionary criteria) set forth in the definition of Eligible Accounts.



     4.26 Eligible Inventory. As to each item of Inventory that is identified by any
Borrower as Eligible Inventory in a Borrowing Base Certificate submitted to Agent, such Inventory
is (a) of good and merchantable quality, free from known defects, and (b) not excluded as
ineligible by virtue of one or more of the excluding criteria (other than Agent-discretionary
criteria) set forth in the definition of Eligible Inventory.



     4.27 Locations of Inventory and Equipment. The Inventory and Equipment (other than
vehicles or Equipment out for repair) of the US Loan Parties and the Canadian Guarantors are
located only at, or in-transit between or to, the locations identified on Schedule 4.27 (as
such Schedule may be updated pursuant to Section 5.16) or a Permitted Consignment Location.



     4.28 Inventory Records. Each US Loan Parties and the Canadian Guarantors keeps
correct and accurate records itemizing and describing the type, quality, and quantity of its
Inventory and the book value thereof.



     4.29 Trust. No Loan Party holds any assets as the trustee of any trust.



5. AFFIRMATIVE COVENANTS.




          Each Borrower covenants and agrees that, until termination of all of the Revolver Commitments
and payment in full of the Obligations (other than Bank Product Obligations that, at such time, are
not required to be repaid or cash collateralized in accordance with Section 1.4), the Loan
Parties shall and shall cause each of their Restricted Subsidiaries to comply with each of the
following:




     5.1 Financial Statements, Reports, Certificates.



          (a) Deliver to Agent, with copies to each Lender, each of the financial statements, reports,
and other items set forth on Schedule 5.1 no later than the times specified therein.
Information required to be delivered pursuant to paragraphs (c), (e), (h), (i) and (j) on
Schedule 5.1 or Material Contracts (or amendments thereto) required to be delivered
pursuant to Section 5.15 shall be deemed to have been delivered if such information, or one
or more annual,




49









 







quarterly or other reports containing such information, shall have been posted on
the Company’s website on the internet (currently http://www.exide.com) or by the Agent on an
IntraLinks, SyndTrak Online or similar site to which the Lenders have been granted access or shall
be available on the website of the Securities and Exchange Commission at http://www.sec.gov;
provided that the Company shall deliver paper copies of such information to the Agent or any Lender
that reasonably requests such delivery; and provided further that such information shall only be
deemed to have been delivered when posted on any such website upon notification by the Company to
the Agent and the Lenders of such posting.




          (b) In addition, each Borrower agrees that no Restricted Subsidiary of a Loan Party will have
a fiscal year different from that of the Company. In addition, each Borrower agrees to maintain a
system of accounting that enables such Borrower to produce financial statements in accordance with
GAAP. Each Loan Party shall also (i) keep a reporting system that shows all additions, sales,
claims, returns, and allowances with respect to its and its Restricted Subsidiaries’ sales, and
(ii) maintain its billing systems/practices substantially as in effect as of the Closing Date and
shall only make material modifications thereto with notice to, and with the consent of, Agent (such
consent not to be unreasonably withheld).




     5.2 Collateral Reporting. Provide Agent (and if so requested by Agent, with copies
for each Lender) with each of the reports set forth on Schedule 5.2 at the times specified
therein. In addition, each Borrower agrees to use commercially reasonable efforts in cooperation
with Agent to facilitate and implement a system of electronic collateral reporting in order to
provide electronic reporting of each of the items set forth on such Schedule.



     5.3 Existence. Except as otherwise permitted under Section 6.3 or Section
6.4, at all times maintain and preserve in full force and effect its existence (including being
in good
standing (or its equivalent, if any) in its jurisdiction of organization) and all rights and
franchises, licenses and permits material to its business; provided, however, that
no Loan Party or any of its Restricted Subsidiaries shall be required to preserve any such right or
franchise, licenses or permits if such Person’s board of directors (or similar governing body)
shall determine that the preservation thereof is no longer desirable in the conduct of the business
of such Person, and that the loss thereof is not disadvantageous in any material respect to such
Person or to Lenders; provided further, however, that nothing in this
Section 5.3 shall prevent the withdrawal by the Company or any of its Restricted
Subsidiaries of its qualification as a foreign corporation, partnership or limited liability
company, as the case may be, in any jurisdiction where such withdrawal could not, either
individually or in the aggregate, reasonably be expected to have a Material Adverse Change.



     5.4 Maintenance of Properties. Maintain and preserve all of its assets that are
necessary or useful in the proper conduct of its business in good working order and condition,
ordinary wear, tear, and casualty excepted and Permitted Dispositions excepted (and except where
the failure to do so could not reasonably be expected to result in a Material Adverse Change), and
comply with the material provisions of all material leases to which it is a party as lessee, so as
to prevent the loss or forfeiture thereof, unless such provisions are the subject of a Permitted
Protest.



     5.5 Taxes. Cause all federal assessments and taxes and all other material assessments
and taxes imposed, levied, or assessed against any Loan Party or its Restricted Subsidiaries, or



50









 




any of their respective assets or in respect of any of its assets, income, or operations to be paid
in full, before delinquency or before the expiration of any extension period, except to the extent
that the validity of such assessment or tax shall be the subject of a Permitted Protest and so long
as, in the case of an assessment or tax that has or may become a Lien against any of the
Collateral, such contest proceedings conclusively operate to stay the sale of any portion of the
Collateral to satisfy such assessment or tax. Each Borrower will and will cause each of its
Restricted Subsidiaries to make timely payment or deposit of all tax payments and withholding taxes
required of it and them by applicable laws, including those laws concerning F.I.C.A., F.U.T.A.,
state disability, and local, state, and federal income taxes (and any foreign equivalent thereof),
and will, upon request, furnish Agent with proof reasonably satisfactory to Agent indicating that
each Borrower and its Restricted Subsidiaries have made such payments or deposits.




     5.6 Insurance. At Borrowers’ expense, maintain insurance respecting each of the Loan
Parties’ and their Restricted Subsidiaries’ assets wherever located, covering loss or damage by
fire, theft, explosion, and all other hazards and risks as ordinarily are insured against by other
Persons engaged in the same or similar businesses. Borrowers also shall maintain (with respect to
each of the Loan Parties and their Restricted Subsidiaries) business interruption, general
liability, product liability insurance, director’s and officer’s liability insurance, fiduciary
liability insurance, and employment practices liability insurance, as well as insurance against
larceny, embezzlement, criminal misappropriation and flood insurance with respect to any Real
Property Collateral in a flood plain. All such policies of insurance shall be with responsible and
reputable insurance companies acceptable to Agent and in such amounts as is carried generally in
accordance with sound business practice by companies in similar businesses similarly situated and
located and in any event in amount, adequacy and scope satisfactory to Agent in its Permitted
Discretion. Subject to the terms of the Intercreditor Agreement, all property insurance
policies covering the Collateral are to be made payable to Agent for the benefit of Agent and
Lenders, as their interests may appear, in case of loss, pursuant to a standard loss payable
endorsement with a standard non contributory “lender” or “secured party” clause and are to contain
such other provisions as Agent may reasonably request in its Permitted Discretion to fully protect
Lenders’ interest in the Collateral and to any payments to be made under such policies. All
certificates of property and general liability insurance are to be delivered to Agent, with the
loss payable (but only in respect of Collateral) and additional insured endorsements in favor of
Agent and shall provide for not less than 30 days (10 days in the case of non-payment) prior
written notice to Agent of the exercise of any right of cancellation. If any Borrower fails to
maintain such insurance, Agent may arrange for such insurance, but at such Borrower’s expense and
without any responsibility on Agent’s part for obtaining the insurance, the solvency of the
insurance companies, the adequacy of the coverage, or the collection of claims. Borrowers shall
give Agent prompt notice of any loss exceeding $2,500,000 covered by its casualty or business
interruption insurance. Upon the occurrence and during the continuance of an Event of Default,
subject to the terms of the Intercreditor Agreement, Agent shall have the sole right to file claims
under any property and general liability insurance policies in respect of the Collateral, to
receive, receipt and give acquittance for any payments that may be payable thereunder, and to
execute any and all endorsements, receipts, releases, assignments, reassignments or other documents
that may be necessary to effect the collection, compromise or settlement of any claims under any
such insurance policies.



     5.7 Inspections; Audits.




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          (a) Keep proper books of record and accounts in which full, true and correct entries
which permit the preparation of financial statements in accordance with GAAP and which conform to
all requirements of law, shall be made of all dealings and transactions in relation to its business
and activities. Permit Agent (or, if an Event of Default has occurred and is continuing, any
Lender) and each of its duly authorized representatives or agents to visit any of its properties
and inspect any of its assets or books and records, to conduct appraisals and valuations, to
examine and make copies of its books and records, and to discuss its affairs, finances, and
accounts with, and to be advised as to the same by, its officers and employees at such reasonable
times and intervals as Agent (or, if an Event of Default has occurred and is continuing, any
Lender) may designate and, so long as no Default or Event of Default exists, with reasonable prior
notice to the Company; provided that neither the Company nor any of its Subsidiaries shall
be required to, nor will they, make available any materials or information which is (or are)
classified or required to be treated as confidential by the United States government or any agency
thereof during any such visitation, inspection, examination, discussion or advice if the same would
not be permitted under applicable law (including, without limitation, the Department of Defense
Industrial Security Regulation and Industrial Security Manual for Safeguarding Classified
Information (Department of Defense Regulation 5220.22-M)) (although, to the extent reasonably
requested by Agent (or, if an Event of Default has occurred and is continuing, such Lender), such
Borrower will use its commercially reasonable efforts to obtain any approvals or clearances so that
such matters may be disclosed).


          (b) The Company shall pay to Agent, for its own account, audit and inventory appraisal fees
and charges as follows: (i) a fee of $1,000 per day, per auditor, plus out-of-pocket expenses for
each audit of the Company performed by personnel employed by Agent or by one or more third Persons
engaged by Agent, and (ii) the actual charges paid or incurred by Agent to perform or obtain
inventory appraisals; provided that the Borrower shall not be obligated to reimburse Agent
for more than 2 audits during any calendar year, or more than one inventory appraisal during any
calendar year; provided further that (A) during any 12 consecutive month period in
which a Trigger Period has existed, the Company shall be obligated to reimburse Agent for up to 3
audits during such period, and up to 2 inventory appraisals during such period and (B) upon the
occurrence and during the continuation of an Event of Default, there shall be no limit on the
number of audits or inventory appraisals for which the Company is obligated to reimburse Agent.



     5.8 Compliance with Laws. Comply with the requirements of all applicable Laws, other
than Laws the non-compliance with which, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Change.



     5.9 ERISA. As soon as possible and, in any event, within 20 Business Days after the
Company, any of its Subsidiaries or any ERISA Affiliate knows or has reason to know of the
occurrence of any of the following, to the extent that (except as otherwise set forth below) such
occurrence, in any given case, if adversely determined could result in a liability or obligation of
the Company and/or any of its Subsidiaries of $50,000 or more the Company will deliver to Agent
written notice of the chief financial officer, vice president of human resources or other
Authorized Officer of the Company setting forth, to the extent known, and in reasonable detail,
such occurrence and the action, if any, that the Company, such Subsidiary or such ERISA Affiliate
is required or proposes to take, together with any notices required or proposed to be



52









 





given to or filed by the Company, such Subsidiary, the Plan administrator or such ERISA
Affiliate to or with, the PBGC or any other governmental agency, or a Plan or Multiemployer Plan
participant, and any notices received by the Company, such Subsidiary or ERISA Affiliate from the
PBGC or other governmental agency or a Plan or Multiemployer Plan participant or the Plan
administrator with respect thereto: (1) that a Reportable Event has occurred (except to the extent
that the Company has previously delivered to Agent a notice concerning such event pursuant to
clause (2) hereof); (2) that a contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of
a Plan subject to Title IV of ERISA is subject to the advance reporting requirement of PBGC
Regulation Section 4043.61, and an event described in subsection .62, .63, .64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is reasonably expected to occur with respect to such Plan
within the following 30 days; (3) that there has been a failure to meet the minimum funding
standards of Sections 412 or 430 of the IRC or Section 302 of ERISA, has been incurred or (except
to the extent that the Company has previously delivered to Agent a notice concerning such event
pursuant to clause (2) hereof) an application has been, or is reasonably expected to be, made for a
waiver or modification of the minimum funding standard (including any required installment
payments) or an extension of any amortization period under Section 412 of the IRC or Section 303 or
304 of ERISA with respect to a Plan; (4) that any material contribution required to be made with
respect to a Plan or Multiemployer Plan or Foreign Pension Plan has been made more than sixty (60)
days late; (5) that a Plan or Multiemployer Plan has been or will be involuntarily terminated,
reorganized, partitioned or declared insolvent under Title IV of ERISA; (6) that a Plan has an
Unfunded Current Liability which, when added to the aggregate amount of Unfunded Current
Liabilities with respect to all other Plans as of such date, exceeds the aggregate amount of the
Unfunded Current Liability that existed on the Closing Date by $10,000,000; (7) that involuntary
proceedings have been or will be instituted to terminate or appoint a trustee to administer a Plan
which is subject to Title IV of ERISA; (8) that an involuntary proceeding has been instituted
pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan or Multiemployer
Plan; (9) that, except as otherwise disclosed on Schedule 4.11, the Company, any of its
Subsidiaries or any ERISA Affiliate will incur or is reasonably expected to incur any material
liability (including any indirect, contingent, or secondary liability) (i) to or on account of the
termination of or withdrawal from a Plan or Multiemployer Plan under Section 4062, 4063, 4064,
4069, 4201, 4204 or 4212 of ERISA, (ii) with respect to a Plan or Multiemployer Plan under Section
401(a)(29), 4971, 4975 or 4980 of the IRC or Section 409 or 502(i) or 502(l) of ERISA, or (iii)
with respect to a group health plan (as defined in Section 607(1) of ERISA, Section 4980B(g)(2) of
the IRC or 45 Code of Federal Regulations Section 160.103) under Section 4980B of the IRC and/or
the Health Insurance Portability and Accountability Act of 1996, (10) that the Company or any of
its Subsidiaries will incur any liability pursuant to any group health plan (as defined in Section
5000(b)(1) of the IRC) that provides benefits to retired employees or other former employees (other
than as required by Section 601 of ERISA) which arises from the extension of such group health plan
to any retirees or former employees who were not in the class of employees eligible for coverage
under such group health plan on the Closing Date, except to the extent that any such liability
would not be material to the Company or any of its Subsidiaries; or (11) the Company or any of its
Subsidiaries will incur any liability not otherwise described in this Section 5.9 pursuant
to any Plan or Foreign Pension Plan which, when added to the aggregate amount of such liabilities
with respect to all other Plans and/or Foreign Pension Plans as of such date, exceeds the aggregate
amount of such liabilities that existed on the Closing Date by $10,000,000. To the extent that the
financial statements set forth a liability for which notice would otherwise be required to be
given


53









 







hereunder, a separate notice thereof shall not be required hereunder. At the request of
Agent, the Company will deliver to Agent copies of any records, documents or other information that
must be furnished to the PBGC with respect to any Plan pursuant to Section 4010 of ERISA. The
Company will deliver to Agent a copy of each funding waiver request filed with the Internal Revenue
Service or any other government agency with respect to any Plan, and at the request of the Agent,
all material communications received by the Company, any of its Subsidiaries or any ERISA Affiliate
from the Internal Revenue Service or any other government agency with respect to each Plan. The
Company will also deliver upon written request to Agent a complete copy of the annual report (on
Internal Revenue Service Form 5500-series) of each Plan (including, to the extent required, the
related financial and actuarial statements and opinions and other supporting statements,
certifications, schedules and information) required to be filed with the Internal Revenue Service.
In addition to any notices delivered to Agent pursuant to the first sentence hereof, copies of
annual reports and any records, documents or other information required to be furnished to the PBGC
or any other government agency, and any material notices received by the Company, any of its
Subsidiaries or any ERISA Affiliate with respect to any Plan or Foreign Pension Plan or received
from any government agency or plan administrator or sponsor or trustee with respect to any
Multiemployer Plan, shall, upon request of Agent, be delivered to Agent no later than 20 Business
Days after the date of such request. The Company and each of its applicable Subsidiaries shall
ensure that all Foreign Pension Plans administered by it or into which it makes payments obtain or
retain (as applicable) registered status under and as required by applicable law and is
administered in a timely manner in all respects in compliance with all applicable laws except where
the failure to do any of the foregoing has not had, and could not reasonably be expected to have, a
Material Adverse Change.




     5.10 Environmental.


          (a) (i) Keep any property either owned or operated by the Borrowers or their Restricted
Subsidiaries free of any Environmental Liens or post bonds or other financial assurances sufficient
to satisfy the obligations or liability evidenced by such Environmental Liens and (ii) comply, in
all material respects, with Environmental Laws and provide to Agent documentation of such
compliance which Agent reasonably requests; provided, however, that no Borrower
shall be deemed to have breached this Section 5.10 to the extent that any failures to
comply with the requirements specified in clause (i) or (ii) above, either individually or in the
aggregate, have not resulted in, and could not reasonably be expected to result in, a Material
Adverse Change. If the Company or any of its Restricted Subsidiaries, or any tenant or occupant of
any Real Property owned, leased or operated by Company or any of its Restricted Subsidiaries,
causes or permits any intentional or unintentional act or omission resulting in the presence or
Release of any Hazardous Material (except in compliance with applicable Environmental Laws), each
Borrower agrees to undertake, and/or to cause any of its Subsidiaries, tenants or occupants to
undertake, at their sole expense, any clean up, removal, remedial or other action required pursuant
to Environmental Laws to remove and clean up any Hazardous Materials from any Real Property except
where the failure to do so has not resulted in, and could not reasonably be expected to result in,
a Material Adverse Change.


          (b) At the written request of Agent, which request shall specify in reasonable detail the
basis therefor, at any time after the occurrence of an Event of Default, a breach by any
Borrower of an environmental provision of this Agreement, or any other matter that requires
the 

54









 







giving of notice under clauses (n) through (r) on Schedule 5.1, the
Borrowers will provide, at their sole cost and expense, an environmental site assessment report
concerning any Real Property, prepared by an environmental consulting firm reasonably approved by
Agent, addressing the matters which gave rise to such request and estimating the potential costs of
any Remedial Action in connection with any such matter. If any Borrower fails to provide the same
within 45 days after such request was made, Agent may order the same, and the Borrowers shall grant
and hereby do grant, to Agent, access to such Real Property and specifically grant Agent an
irrevocable non-exclusive license, subject to the right of tenants, to undertake such an
assessment, all at the Borrowers’ joint and several expense.



     5.11 Disclosure Updates. Promptly and in no event later than 5 Business Days after
obtaining knowledge thereof, notify Agent if any written information, exhibit, or report furnished
to Agent or Lenders contained, at the time it was furnished, any untrue statement of a material
fact or omitted to state any material fact necessary to make the statements contained therein not
misleading in light of the circumstances in which made. The foregoing to the contrary
notwithstanding, any notification pursuant to the foregoing provision will not cure or remedy the
effect of the prior untrue statement of a material fact or omission of any material fact nor shall
any such notification have the effect of amending or modifying this Agreement or any of the
Schedules hereto.



     5.12 Formation of Subsidiaries; Additional Real Property.


          (a) Additional US Loan Parties. At any time (x) any US Subsidiary of the Company
(other than an Excluded Subsidiary) is created, established or acquired, (y) any US Subsidiary
ceases to be an Excluded Subsidiary, or (z) any Subsidiary guarantees the Senior Notes, any
Permitted Refinancing in respect thereof, any Permitted Additional Pari Pasu Obligations or any
Refinancing Indebtedness in respect thereof, such US Subsidiary shall be required to no later than
30 days thereafter (or such greater number of days as Agent shall agree to in its sole and absolute
discretion in any given case), (i) execute and deliver a US Joinder Agreement, causing such US
Subsidiary to become party to (A) the US Guaranty as a US Guarantor (or, to the extent requested by
Agent, become a US Borrower pursuant to its US Joinder Agreement), (B) the US Security Agreement,
(C) the Intercompany Subordination Agreement, (D) the Intercreditor Agreement and (E) such other
Loan Documents as would have been entered into by such Subsidiary if it had been a US Guarantor on
the Closing Date, (ii) take all action in connection therewith as would otherwise have been
required to be taken pursuant to Schedule 3.1 if such US Subsidiary had been a US Guarantor
on the Closing Date, and (iii) execute, endorse, acknowledge, file and/or deliver to Agent from
time to time such opinions of counsel, vouchers, invoices, schedules, confirmatory assignments,
confirmatory conveyances, financing statements, transfer endorsements, confirmatory powers of
attorney, certificates, reports and other assurances or confirmatory instruments and take such
further steps relating to the US Collateral covered by any of the US Security Documents as Agent
may reasonably require pursuant to this Section 5.12(a).


          (b) Additional Foreign Loan Parties. At any time (x) any Foreign Subsidiary of the
Company (other than an Excluded Subsidiary) organized under the laws of any Qualified Foreign
Jurisdiction is created, established or acquired, or (y) any Foreign Subsidiary organized
under the laws of any Qualified Foreign Jurisdiction ceases to be an Excluded Subsidiary, such
Subsidiary shall be required to no later than 30 days (but, with respect to clause (B) below, 90

55









 






days) thereafter (or such greater number of days as Agent shall agree to in its sole and absolute
discretion in any given case), (i) execute and deliver a Foreign Joinder Agreement, causing such
Foreign Subsidiary to become party to (A) the Foreign Guaranty (or if requested by Agent upon the
advice of local counsel, a new Foreign Guaranty), (B) each applicable Foreign Security Document
(other than Control Agreements or Cash Management Arrangements), (C) the Intercompany Subordination
Agreement, (D) exercise commercially reasonably best efforts for a period not to exceed 90 days to
enter into Control Agreements or Cash Management Arrangements with respect to its Deposit Accounts,
and (E) such other Loan Documents as would have been entered into by such Subsidiary if it had been
a Foreign Guarantor on the Closing Date, in each case subject to such restrictions and/or
limitations as may be required under applicable law, (ii) take all action in connection therewith
as would otherwise have been required to be taken pursuant to Schedule 3.1 if such Foreign
Subsidiary had been a Foreign Guarantor on the Closing Date and (iii) execute, endorse,
acknowledge, file and/or deliver to Agent from time to time such opinions of counsel, vouchers,
invoices, schedules, confirmatory assignments, confirmatory conveyances, financing statements,
transfer endorsements, confirmatory powers of attorney, certificates, reports and other assurances
or confirmatory instruments and take such further steps relating to the Foreign Collateral covered
by any of the Foreign Security Documents as Agent may reasonably require pursuant to this
Section 5.12(b).


          (c) Additional Real Property Collateral. At any time (i) any US Subsidiary is added
as a US Loan Party pursuant to Section 5.12(a) and such US Loan Party owns any Real
Property, (ii) any existing US Loan Party acquires any owned Real Property after the Closing Date
(in the case of clause (i) or (ii), with a fair market value in excess of $2,500,000) or (iii) any
Real Property is subject to a Lien in favor of the Senior Noteholders but not subject to a
Mortgage, no later than 90 days thereafter (or such greater number of days as Agent shall agree to
in its sole and absolute discretion in any given case), such US Loan Party shall be required to
grant a Lien to Agent and execute and deliver a Mortgage and take all action in connection
therewith as would otherwise have been required to be taken pursuant to Schedule 3.1 with
respect to such Real Property if such US Loan Party owned such Real Property on the Closing Date;
provided that the US Loan Parties will not be required to grant Liens or execute Mortgages
on such after-acquired Real Property unless Liens and Mortgages are granted and executed on such
after-acquired Real Property to secure the Senior Notes.



     5.13 Further Assurances. At any time upon the reasonable request of Agent (including
if Agent determines that a Loan Document (or a transaction in connection with it) operates as, or
gives rise to a security interest for the purposes of the Personal Property Securities Act 2009
(Cwlth)), promptly take such actions that the Agent asks and considers necessary and promptly
execute or deliver to Agent any and all financing statements, financial change statements, fixture
filings, security agreements, pledges, assignments, endorsements of certificates of title,
mortgages, deeds of trust, opinions of counsel, and all other documents (the “Additional
Documents”) that Agent may reasonably request in form and substance satisfactory to Agent in
its Permitted Discretion, to create, perfect, ensure the enforceability of, and continue perfected
or to better perfect Agent’s Liens in the Collateral or enable the Agent to apply for any
registration, or give any notification in connection with the Agent’s Lien in the Collateral so
that the Lien has the priority required by the Agent and in order to fully consummate all of the
Transactions or any transactions contemplated hereby and under the other Loan Documents. To
the maximum extent permitted by applicable Law, if any Borrower refuses or fails to execute or



56









 







deliver any reasonably requested Additional Documents within a reasonable period of time following
the request to do so, such Borrower hereby authorizes Agent to execute any such Additional
Documents in the applicable Loan Party’s name, as applicable, and authorizes Agent to file such
executed Additional Documents in any appropriate filing office. In furtherance and not in
limitation of the foregoing, each Loan Party shall take such actions as Agent may reasonably
request from time to time to ensure that (a) the US Obligations are guarantied by the US Guarantors
and are secured by (i) a first-priority perfected Lien on the ABL Priority Collateral, subject to
Permitted Liens and (ii) a second-priority perfected Lien on the Senior Note Priority Collateral,
subject to Permitted Liens, and (b) the Foreign Obligations are guarantied by the Guarantors and
are secured by (i) a first-priority perfected Lien on the ABL Priority Collateral, subject to
Permitted Liens, (ii) a second-priority perfected Lien on the Senior Note Priority Collateral,
subject to Permitted Liens and (iii) a first-priority perfected Lien on the Foreign Collateral,
subject to Permitted Liens.



     5.14 Lender Meetings. Within 120 days after the close of each fiscal year of the
Company, at the request of Agent or of the Required Lenders and upon reasonable prior notice, hold
a meeting (at a mutually agreeable location and time or, at the option of Agent, by conference
call) with all Lenders who choose to attend such meeting at which meeting shall be reviewed the
financial results of the previous fiscal year and the financial condition of the Company and its
Subsidiaries and the projections presented for the current fiscal year of the Company.



     5.15 Material Contracts. Contemporaneously with the delivery of each quarterly
Compliance Certificate pursuant to Section 5.1, provide Agent with copies of (a) each
Material Contract entered into since the delivery of the previous Compliance Certificate, and (b)
each material amendment or modification of any Material Contract entered into since the delivery of
the previous Compliance Certificate.



     5.16 Location of Inventory and Equipment. Keep each Loan Parties’ and its Restricted
Subsidiaries’ Inventory and Equipment (other than vehicles and Equipment out for repair) only at
the locations identified on Schedule 4.27 or at Permitted Consignment Locations and their
chief executive offices only at the locations identified on Schedule 4.6(b);
provided, however, that any Loan Party and their Restricted Subsidiaries may keep
its Inventory and Equipment at other locations and may move its chief executive office to another
location in the same country as its current chief executive office so long as the Borrowers provide
written notice to Agent not less than 10 days prior to the date on which such Inventory or
Equipment is moved to such new location or such chief executive office is relocated, as the case
may be.



     5.17 Foreign Borrower Holding Company. The Foreign Borrower shall not engage in any
business or activity or own any assets, in each case other than (a) the ownership of all
outstanding Equity Interests in its Subsidiaries and intercompany Indebtedness owing to the Foreign
Borrower, (b) maintaining its legal existence, (c) participating in tax, accounting and other
administrative activities as the parent of its Subsidiaries, (d) the execution and delivery of the
Loan Documents to which it is a party and the performance of its obligations thereunder, (e)
activities necessary to consummate the Transactions, and (f) activities incidental to the
businesses or activities described in clauses (a) through (e) of this Section 5.17.
Notwithstanding the foregoing, in the event that the Foreign Borrower acquires any assets (other
than Stock of any Person organized in a jurisdiction other than the Netherlands), it shall, at the
Agent’s request (i)



57









 







promptly create a valid first-priority security interest (subject to Permitted
Liens) in favor of the Agent on such assets and (ii) grant to the Agent an irrevocable power of
attorney, with full powers of substitution, in order to on behalf of the Foreign Borrower to
perform all such (legal) acts and do all things as may be required to create or perfect such right
of pledge.



     5.18 Unrestricted Subsidiaries. The Company may at any time after the Closing Date
designate any Foreign Subsidiary that is a Restricted Subsidiary as an Unrestricted Subsidiary or
any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (a) immediately
before and after such designation, no Default or Event of Default shall have occurred and be
continuing, (b) no Loan Party or Foreign Subsidiary in a Qualified Jurisdiction may be designated
as an Unrestricted Subsidiary, (c) without Agent’s consent, no Restricted Subsidiary may be
designated an Unrestricted Subsidiary if it was previously designated an Unrestricted Subsidiary,
and (d) without Agent’s consent, no Unrestricted Subsidiary may be designated a Restricted
Subsidiary if it was previously designated a Restricted Subsidiary; provided
further that, unless designated by the Company as a Restricted Subsidiary at the time of
the formation or acquisition thereof, any Subsidiary (other than any Subsidiary organized in a
Qualified Jurisdiction) formed or acquired after the Closing Date shall be an Unrestricted
Subsidiary until, if ever, such Subsidiary is designated as a Restricted Subsidiary in accordance
with this Section 5.18. The designation of any Subsidiary as an Unrestricted Subsidiary
after the Closing Date shall constitute an Investment by the Borrower therein at the date of
designation in an amount equal to the fair market value of the Borrower’s investment therein. The
designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute (A) the
incurrence at the time of designation of any Investment, Indebtedness or Liens of such Subsidiary
existing at such time and (B) a return on any Investment by the Borrower in Unrestricted
Subsidiaries pursuant to the preceding sentence in an amount equal to the fair market value at the
date of such designation of the Borrower’s Investment in such Subsidiary.



6. NEGATIVE COVENANTS.



          Each Borrower covenants and agrees that, until termination of all of the Revolver Commitments
and payment in full of the Obligations, the Loan Parties will not and will not permit any of their
Restricted Subsidiaries to do any of the following:



     6.1 Indebtedness. Create, incur, assume, suffer to exist, guarantee, or otherwise
become or remain, directly or indirectly, liable with respect to any Indebtedness, except for
Permitted Indebtedness.



     6.2 Liens. Create, incur, assume, or suffer to exist, directly or indirectly, any
Lien on or with respect to any of its assets, of any kind, whether now owned or hereafter acquired,
or any income or profits therefrom, except for Permitted Liens.



     6.3 Restrictions on Fundamental Changes.


          (a) Other than in order to consummate a Permitted Acquisitions, (1) enter into
any merger, consolidation, amalgamation, reorganization, or recapitalization, or reclassify
its Stock or (2) liquidate, wind up, or dissolve itself (or suffer any liquidation or
dissolution), except that:



58









 








               (i) any US Subsidiary of the Company may be merged, consolidated or liquidated with or into
the Company (so long as the Company is the surviving entity of such merger, consolidation or
liquidation) or any US Guarantor (so long as a US Guarantor is the surviving entity of such merger,
consolidation or liquidation);



               (ii) any Excluded Subsidiary may be merged, amalgamated, reorganized, consolidated or
liquidated with or into another Excluded Subsidiary;



               (iii) any Foreign Loan Party (other than the Foreign Borrower) may be merged, amalgamated,
reorganized, consolidated or liquidated with or into, or in such a way that any payments or assets
distributed as a result thereof are distributed to, any other Loan Party;



               (iv) any Foreign Subsidiary of the Company (other than a Loan Party) may be merged,
amalgamated, reorganized, consolidated or liquidated with or into, or in such a way that any
payments or assets distributed as a result thereof are distributed to, any Wholly Owned Foreign
Subsidiary of the Company or any US Loan Party, including, without limitation, pursuant to a
Permitted Disposition, so long as such Wholly Owned Foreign Subsidiary or US Loan Party is the
surviving entity of such merger, consolidation, amalgamation, reorganization, or liquidation;



               (v) (A) Coöpertie Exide Europe U.A., (B) any non-operating Restricted Subsidiaries with
nominal assets and nominal liabilities, and (C) any Excluded Subsidiary may be liquidated, wound
up, or dissolved;



               (vi) the Specified Dutch Merger shall be permitted to take place; and



               (vii) the Company and its Subsidiaries may consummate a Specified Restructuring;



provided that any such merger, amalgamation, consolidation, liquidation, or distribution of
assets shall only be permitted pursuant to this Section 6.3, so long as (A) no Default and
no Event of Default then exists or would exist immediately after giving effect thereto, (B) any
security interests granted to Agent in the assets (including, without limitation, Stock) of any
such Person subject to any such transaction shall remain in full force and effect and perfected and
enforceable (to at least the same extent as in effect immediately prior to such merger,
amalgamation, reorganization, consolidation, liquidation, or distribution of assets), except to the
extent such assets (including, without limitation, Stock) are being transferred or otherwise
disposed of pursuant to a Permitted Disposition or a Specified Restructuring, (C) if the Person to
be merged, amalgamated, reorganized, consolidated or liquidated into or its assets are distributed
to another Person as contemplated above is party to a Guaranty, the nature and scope of the
obligations of such Person under its Guaranty are substantially identical to or greater than the
nature and scope of the obligations of such other Person under its Guaranty, and (D) any new
Accounts or Inventory to be included in the Borrowing Base as a result thereof shall not be
Eligible Accounts until such time as Agent and Lenders shall have completed an audit and field exam
of such
Accounts and appraisal of Inventory and such other due diligence requested by Agent in its
Permitted Discretion, in a manner and with results satisfactory to Agent in its Permitted
Discretion.




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          (b) Suspend or go out of a substantial portion of its or their business, except as permitted
pursuant to clause (a) above or in connection with the transactions permitted pursuant to
Section 6.4.



     6.4 Disposal of Assets. Convey, sell, lease, license, assign, transfer, or otherwise
dispose of (or enter into an agreement to convey, sell, lease, license, assign, transfer, or
otherwise dispose of) any Borrower’s or its Restricted Subsidiaries’ assets except for Permitted
Dispositions or transactions expressly permitted by Sections 6.3 or 6.11.



     6.5 Change Name. Change its legal name, organizational identification number,
jurisdiction of organization, organizational identity, or chief executive office; provided,
however, that any Borrower or its Restricted Subsidiaries may change its name or the
location of its chief executive office (so long as, with respect to any US Loan Party such chief
executive office is maintained within the continental United States and with respect to any Foreign
Loan Party such chief executive office is maintained within its jurisdiction of organization) upon
at least 10 days prior written notice to Agent of such change.



     6.6 Nature of Business. Engage in any business other than a Permitted Business.



     6.7 Debt Payments and Amendments.


          (a) Restricted Debt Payments. Make any Restricted Debt Payments except for:



               (i) Refinancing Indebtedness thereof permitted by Section 6.1;



               (ii) the payment of scheduled principal installments, if any, and interest in respect of
subordinated Indebtedness, including the Existing Senior Subordinated Notes (other than any such
payment prohibited by the subordination provisions thereof);



               (iii) the payment of scheduled or accrued interest in respect of the Senior Notes and any
Permitted Additional Pari Passu Obligations (or any Refinancing Indebtedness in respect thereof);



               (iv) Restricted Debt Payments of the Senior Notes or any Permitted Additional Pari Passu
Obligations solely with the proceeds from the sale, casualty or other disposition of Senior Note
Priority Collateral;



               (v) Restricted Debt Payments of the Senior Notes (or any Refinancing Indebtedness in respect
thereof) with the net cash proceeds from any capital contribution to the Company or any sale or
issuance of Stock (other than Prohibited Preferred Stock) to any Person that is not a Subsidiary of
the Company in accordance with the requirements of this Agreement; provided that the Excess
Availability for the 30 consecutive days immediately preceding such Restricted Debt Payment and
Excess Availability on the date thereof (each as calculated on a pro
forma basis after giving effect to such Restricted Debt Payment) shall not be less
than the Threshold Amount;



               (vi) Restricted Debt Payments of the Closing Date Senior Notes (or any Refinancing
Indebtedness in respect thereof) with Exchange Senior Notes;



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               (vii) Restricted Debt Payments of Indebtedness constituting Permitted Intercompany
Investments; provided that no Default or Event of Default is continuing or would result
therefrom;



               (viii) additional Restricted Debt Payments in an aggregate amount not to exceed the Basket
Amount; provided that no Default or Event of Default is continuing or would result
therefrom; and



               (ix) additional Restricted Debt Payments during such time as the Payment Condition is
satisfied.


          If permitted by the agreements or instruments governing the Indebtedness described above, any
Restricted Debt Payment permitted above with respect to such Indebtedness may be made by way of
irrevocably depositing with the trustee or paying agent with respect thereto or any other Person
(other than the Company or any Affiliate thereof) designated in accordance with the agreements or
instruments governing such Indebtedness, cash or Cash Equivalents in the amount of such
Indebtedness (together with accrued interest and interest which accrues up to and including the due
date of such Indebtedness) before such Indebtedness is due for the purpose of discharging,
redeeming or otherwise paying in full such Indebtedness (whether pursuant to a tender offer,
optional redemption, or otherwise).


          (b) Amendments. Directly or indirectly, amend, modify, or change any of the terms or
provisions of:



               (i) any agreement, instrument, document, indenture, or other writing evidencing or concerning
Permitted Indebtedness other than (A) the Obligations in accordance with this Agreement, (B)
Permitted Intercompany Investments, (C) Indebtedness permitted under clauses (c), (g), (i)
and (j) of the definition of Permitted Indebtedness, and (D) to the extent such amendment,
modification, or change, either individually, or in the aggregate could not reasonably be expected
to be materially adverse to the interests of the Lenders, any other Permitted Indebtedness; and



               (ii) the Governing Documents of any Loan Party or any of its Restricted Subsidiaries if the
effect thereof, either individually or in the aggregate, could reasonably be expected to be
materially adverse to the interests of Lenders.



     6.8 Change of Control. Cause, permit, or suffer, directly or indirectly, any Change
of Control.



     6.9 Restricted Payments. Make any Restricted Payment; provided, that, so long
as (x) it is permitted by Law, and (y) no Default or Event of Default is continuing or would result
therefrom, the Company and its Restricted Subsidiaries may make;


          (a) Permitted Restricted Payments; and


          (b) additional Restricted Payments during such time as the Payment Condition is satisfied.



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     6.10 Accounting Methods. Modify or change its fiscal year or its method of accounting
(other than as may be required to conform to GAAP).



     6.11 Investments; Controlled Investments.


          (a) Investments. Directly or indirectly, make or acquire any Investment or incur any
liabilities (including contingent obligations) for or in connection with any Investment, except
for:



               (i) Permitted Investments; and



               (ii) additional Investments during such time as the Payment Condition is satisfied.


          (b) Controlled Investments. Except for Excluded Accounts, (i) no Loan Party shall establish
or, after the Post Closing Period (or any extension thereof), maintain any Deposit Account or
Securities Account in the United States or Canada unless Agent shall have received a Control
Agreement in respect of such Deposit Account or Securities Account and (ii) no Loan Party shall
establish after the Closing Date any Deposit Account or Securities Account outside of the United
States or Canada unless Agent shall have received a Control Agreement or entered into a Cash
Management Arrangement in respect of such Deposit Account or Securities Account.



     6.12 Transactions with Affiliates. Directly or indirectly enter into or permit to
exist any transaction with any Affiliate of any Borrower except for:


          (a) transactions (other than the payment of management, consulting, monitoring, or advisory
fees) between any Borrower or its Restricted Subsidiaries, on the one hand, and any Affiliate of
such Borrower or such Restricted Subsidiary, on the other hand, so long as such transactions are
substantially as favorable, taken as a whole, to such Borrower or such Restricted Subsidiary, as
applicable, than would be obtained in an arm’s length transaction with a non-Affiliate;


          (b) so long as it has been approved by such Borrower’s or such Restricted Subsidiary’s board
of directors (or comparable governing body) in accordance with applicable law, any indemnity
provided for the benefit of directors (or comparable managers) of such Borrower or such Restricted
Subsidiary;


          (c) so long as it has been approved by such Borrower’s or such Restricted Subsidiary’s board
of directors (or comparable governing body) in accordance with applicable law or approved by the
Company in accordance with the Company’s internal policies and procedures, the payment of
reasonable compensation, severance, or employee benefit
arrangements to employees, officers, and outside directors of such Borrower and its Restricted
Subsidiaries;


          (d) transactions permitted by Section 6.3, Section 6.4, Section 6.9,
Section 6.11 or any Permitted Intercompany Investment;



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          (e) the payment of consulting fees, allocated management fees and other fees to the Company by
any of its Subsidiaries or by any of its Subsidiaries to any other of its Subsidiaries; and


          (f) the payment of customary fees to non-officer directors of the Company and its
Subsidiaries.



     6.13 Use of Proceeds. Use the proceeds of any loan made hereunder for any purpose
other than (a) on the Closing Date, to consummate the Transactions, and (b) thereafter, consistent
with the terms and conditions hereof, for their lawful and permitted purposes (including that no
part of the proceeds of the loans made to Borrowers will be used to purchase or carry any such
Margin Stock or to extend credit to others for the purpose of purchasing or carrying any such
margin stock or for any purpose that violates the provisions of Regulation T, U or X of the Board
of Governors of the United States Federal Reserve).



     6.14 Limitation on Issuance of Preferred Stock. Issue or sell or enter into any
agreement or arrangement for the issuance and sale of any Prohibited Preferred Stock.



     6.15 Restrictions Affecting Subsidiaries. Directly or indirectly create or otherwise
permit to exist any encumbrance or restriction (other than pursuant to this Agreement or any other
Loan Document) that (a) limits the ability (i) of any Restricted Subsidiary to make Restricted
Payments to a Loan Party or to otherwise transfer property to or invest in a Loan Party, (ii) of
any Restricted Subsidiary to make loans or advances to any Loan party or to pay any Indebtedness
owed to a Loan Party, (iii) of any US Subsidiary to guarantee the Indebtedness of the Borrowers,
(iv) of any Foreign Subsidiary to guarantee the Indebtedness of the Foreign Borrower or (v) of any
Loan Party to create, incur, assume or suffer to exist Liens on property of such Loan Party, or (b)
requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure
another obligation of such Person; provided, that the foregoing shall not apply to
encumbrances or restrictions which (A) are customary provisions in joint venture agreements and
other similar agreements applicable to joint ventures permitted under Section 6.11 and
applicable solely to such joint venture, (B) are customary restrictions on leases, subleases,
licenses or sublicenses otherwise permitted hereunder so long as such restrictions relate solely to
the assets subject thereto, (C) are customary anti-assignment provisions in contracts restricting
the assignment of any agreement, (D) are customary restrictions in contracts for the disposition of
any assets permitted by Section 6.4, provided that the restrictions in any such contracts
shall apply only to such assets that is to be disposed of, (E) are customary provisions in leases
of Real Property that prohibit mortgages or pledges of the lessee’s interest under such lease, (F)
are contained in any Acquired Indebtedness not created in anticipation thereof, (G) are contained
in the Senior Note Indenture and any Refinancing Indebtedness incurred in respect thereof, (H) are
customary restrictions of the type described in clause (a)(v) above contained in the terms of any
Indebtedness permitted hereunder if such restriction applies
only to the property financed by or the subject of such Indebtedness, (I) arise under
applicable Laws, or (J) are applicable to Government Grant Property.



7. FINANCIAL COVENANT.




     Each Borrower covenants and agrees that, until termination of all of the Revolver Commitments
and payment in full of the Obligations, if at any time Excess Availability is less



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than the
Threshold Amount (a “Financial Covenant Trigger Event”), the Company shall maintain a Fixed
Charge Coverage Ratio of at least 1.00 to 1.00 as of the immediately preceding fiscal month end for
which financial statements are available and as of each subsequent fiscal month end thereafter;
provided that (a) a breach of such covenant when so tested shall not be cured by a
subsequent increase of Excess Availability above the Threshold Amount and (b) such requirement to
maintain a Fixed Charge Coverage Ratio of at least 1.00 to 1.00 shall no longer apply for
subsequent periods if Excess Availability on each day during any period of 60 consecutive days
commencing after the date of such Financial Covenant Trigger Event is greater than or equal to the
Threshold Amount, after which time the requirement to comply with the Fixed Charge Coverage Ratio
for purposes of this Section 7 shall not apply unless a subsequent Financial Covenant
Trigger Event occurs.



8. EVENTS OF DEFAULT.



          Any one or more of the following events shall constitute an event of default (each, an
“Event of Default”) under this Agreement:



     8.1 Payment Default. If Borrowers fail to pay when due and payable, or when declared
due and payable, (a) all or any portion of the Obligations consisting of interest, fees, or charges
due the Lender Group, reimbursement of Lender Group Expenses, or other amounts (other than any
portion thereof constituting principal) constituting Obligations (including any portion thereof
that accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed or
allowable in whole or in part as a claim in any such Insolvency Proceeding), and such failure
continues for a period of 3 Business Days, or (b) all or any portion of the principal of the
Obligations.



     8.2 Covenant Default. If any Loan Party or any of its Restricted Subsidiaries:


          (a) fails to perform or observe any covenant or other agreement contained in any of (i)
Sections 3.6, 5.1, 5.2, 5.3 (solely if any Borrower is not in good standing
(to the extent such concept exists) in its jurisdiction of organization), 5.6, 5.7
(solely if any Borrower refuses to allow Agent or its representatives or agents to visit such
Borrower’s properties, inspect its assets or books or records, examine and make copies of its books
and records, or discuss such Borrower’s affairs, finances, and accounts with officers and employees
of such Borrower), 5.12 and 5.18 of this Agreement, (ii) Sections 6.1
through 6.15 of this Agreement, (iii) Section 7 of this Agreement, or (iv) Section
6 of the Security Agreement;


          (b) fails to perform or observe any covenant or other agreement contained in any of
Sections 5.3 (other than if any Borrower is not in good standing in its jurisdiction of
organization to the extent such concept exists in the applicable jurisdiction and other than with
respect to any Excluded Subsidiary), 5.4, 5.5, 5.8, 5.11,
5.13 and 5.16 of this Agreement and such failure continues for a period of 10 days
after the earlier of (i) the date on which such failure shall first become known to any Responsible
Officer of any Borrower or (ii) the date on which written notice thereof is given to the Company by
Agent; or


          (c) fails to perform or observe any covenant or other agreement contained in this Agreement,
or in any of the other Loan Documents, in each case, other than any such covenant or agreement that
is the subject of another provision of this Section 8 (in which event



64









 








such other provision
of this Section 8 shall govern), and such failure continues for a period of 30 days after
the earlier of (i) the date on which such failure shall first become known to any Responsible
Officer of any Borrower or (ii) the date on which written notice thereof is given to the Company by
Agent.




     8.3 Judgments. If one or more judgments, orders, or awards for the payment of money
involving an aggregate amount of $20,000,000, or more (after taking into account any portion of
such judgment, order, or award for the payment of money covered (other than to the extent of
customary deductibles) by insurance pursuant to which the insurer has not denied coverage) is
entered or filed against a Loan Party or any of its Restricted Subsidiaries, or with respect to any
of their respective assets, and either (a) there is a period of 30 consecutive days at any time
after the entry of any such judgment, order, or award during which (1) the same is not discharged,
satisfied, vacated, or bonded pending appeal, or (2) a stay of enforcement thereof is not in
effect, or (b) enforcement proceedings are commenced upon such judgment, order, or award.



     8.4 Voluntary Bankruptcy Proceeding. If any Loan Party or any Restricted Subsidiary
(other than Excluded Subsidiaries) thereof shall (a) commence a voluntary case under the federal
bankruptcy laws (as now or hereafter in effect), (b) file a petition seeking to take advantage of
any other laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding up
or composition for adjustment of debts, (c) consent to or fail to contest in a timely and
appropriate manner any petition filed against it in an involuntary case under such bankruptcy laws
or other laws, (d) apply for or consent to, or fail to contest in a timely and appropriate manner,
the appointment of, or the taking of possession by, a receiver, receiver manager, custodian,
trustee, or liquidator of itself or of a substantial part of its property, domestic or foreign, (e)
admit in writing its inability to pay its debts as they become due, (f) make a general assignment
for the benefit of creditors, or (g) take any corporate action for the purpose of authorizing any
of the foregoing.



     8.5 Involuntary Bankruptcy Proceeding. If a case or other proceeding shall be
commenced against any Loan Party or any Restricted Subsidiary (other than Excluded Subsidiaries)
thereof in any court of competent jurisdiction seeking (a) relief under the federal bankruptcy laws
(as now or hereafter in effect) or under any other laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding up or adjustment of debts, or (b) the appointment
of a trustee, receiver, custodian, liquidator or the like for any Loan Party or any Restricted
Subsidiary (other than Excluded Subsidiaries) thereof or for all or any substantial part of their
respective assets, domestic or foreign, and such case or proceeding shall continue without
dismissal or stay for a period of 60 consecutive days, or an order granting the relief
requested in such case or proceeding (including, but not limited to, an order for relief under
such federal bankruptcy laws) shall be entered.



     8.6 Restriction on Business. If a Loan Party or any of its Restricted Subsidiaries
(other than Excluded Subsidiaries) is enjoined, restrained, or in any way prevented by court order
from continuing to conduct all or any part of the business affairs of Borrowers and their
Restricted Subsidiaries, taken as a whole, which could reasonably be expected to have a Material
Adverse Change.



65









 





     8.7 Cross Default. If there is a default (after expiration of any applicable grace
period) in one or more agreements to which a Loan Party or any of its Restricted Subsidiaries is a
party with one or more third Persons relative to a Loan Party’s or any of its Restricted
Subsidiaries’ Indebtedness involving an aggregate amount of $20,000,000 or more, and such default
(a) occurs at the final maturity of the obligations thereunder, or (b) results in a right by such
third Person, irrespective of whether exercised, to accelerate the maturity of such Loan Party’s or
its Restricted Subsidiary’s obligations thereunder.



     8.8 Misrepresentation. If any warranty, representation, certificate, statement, or
Record made herein or in any other Loan Document or delivered in writing to Agent or any Lender in
connection with this Agreement or any other Loan Document proves to be untrue in any material
respect (except that such materiality qualifier shall not be applicable to any representations and
warranties that already are qualified or modified by materiality in the text thereof) as of the
date of issuance or making or deemed making thereof.



     8.9 ERISA. If (a) (1) any Plan shall fail to satisfy the minimum funding standard
required for any plan year or part thereof under Section 412 of the IRC or Section 302 of ERISA or
a waiver of such standard or extension of any amortization period is sought or granted under
Section 412 of the IRC or Section 303 or 304 of ERISA, (2) a Reportable Event shall have occurred,
(3) a contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan subject to Title
IV of ERISA shall be subject to the advance reporting requirement of PBGC Regulation Section
4043.61 and an event described in subsection .62, .63, .64, .65, .66, .67 or .68 of PBGC Regulation
Section 4043 shall be reasonably expected to occur with respect to such Plan within the following
30 days which will result in a Material Adverse Change, (4) any Plan which is subject to Title IV
of ERISA shall have had or will have a trustee appointed to administer such Plan pursuant to
Section 4042(b) of ERISA, (5) any Plan or Multiemployer Plan which is subject to Title IV of ERISA
is, shall have been or will be involuntarily terminated or to be the subject of termination
proceedings under ERISA or any Plan subject to Title IV of ERISA shall have a material Unfunded
Current Liability, (6) a material contribution required to be made with respect to a Plan subject
to Title IV of ERISA or Multiemployer Plan or a Foreign Pension Plan has not been made within 60
days of when due, (7) the Company or any of its Subsidiaries or any ERISA Affiliate has incurred or
will incur any liability to or on account of a Plan subject to Title IV of ERISA or Multiemployer
Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or
Section 401(a)(29), 4971 or 4975 of the IRC or on account of a group health plan (as defined in
Section 607(1) of ERISA or Section 4980B(g)(2) of the IRC) under Section 4980B of the IRC, (8) the
Company or any of its Subsidiaries has incurred or will incur liabilities pursuant to one or more
group health plans (as defined in Section 5000(b)(1) of the IRC) that provide benefits to retired
employees or other former employees
(other than as required by Section 601 of ERISA), (9) a “default” within the meaning of
Section 4219(c)(5) of ERISA, shall occur with respect to any Multiemployer Plan or (10) the Company
or any of its Subsidiaries has incurred or will incur liabilities not otherwise described in this
Section 8.9 pursuant to one or more Plans or Foreign Pension Plans; (b) there shall result
from any such event or events described above in this Section 8.9 the imposition of a lien,
the granting of a security interest, or a liability or a material risk of incurring a liability
resulting from any event described in clause (a) above; and (c) such lien, security interest or
liability, individually and/or in the aggregate, in the reasonable opinion of the Required Lenders
has had, or could reasonably be expected to have, a Material Adverse Change; provided that
notwithstanding the



66









 







foregoing, the funding waivers for the years and amounts set forth on
Schedule 4.11 and the amount of Unfunded Current Liability set forth on Schedule
4.11 shall not constitute an Event of Default under this Section 8.9; provided
further, an Event of Default shall occur if any Plan subject to Title IV of ERISA shall
have an Unfunded Current Liability, which when added to the aggregate amount of Unfunded Current
Liabilities with respect to all other Plans, exceeds the aggregate amount of the Unfunded Current
Liabilities that existed on the Closing Date by an amount that could reasonably be expected to have
a Material Adverse Change.



     8.10 Failure of Guaranty. If the obligation of any Guarantor under the Guaranty is
terminated or materially limited by operation of law or by such Guarantor (other than in accordance
with the terms of this Agreement).



     8.11 Failure of other Loan Documents. If the Security Agreement or any other Loan
Document that purports to create a Lien, shall, for any reason, fail or cease to create a valid and
perfected and, except to the extent of Permitted Liens, first-priority Lien on the Collateral
covered thereby, except as a result of a disposition of the applicable Collateral in a transaction
permitted under this Agreement.



     8.12 Invalidity of Loan Documents. The validity or enforceability of any Loan
Document shall at any time for any reason (other than solely as the result of an action or failure
to act on the part of Agent or any Lender) be declared to be null and void, or a proceeding shall
be commenced by a Loan Party or its Restricted Subsidiaries, or by any Governmental Authority
having jurisdiction over a Loan Party or its Restricted Subsidiaries, seeking to establish the
invalidity or unenforceability thereof, or a Loan Party or its Restricted Subsidiaries shall deny
that such Loan Party or its Restricted Subsidiaries has any liability or obligation purported to be
created under any Loan Document.



     8.13 Designation as Senior Indebtedness. If (a) the Obligations shall at any time
fail to constitute “Senior Indebtedness” as defined in the Existing Senior Subordinated Notes or
(b) the subordination provisions of any agreement or instrument governing any Indebtedness (other
than the Existing Senior Subordinated Note) in a principal amount in excess of $1,000,000 that is
subordinated to the Obligations shall for any reason (other than as a result of any action or
inaction of the Agent or any Lender) be revoked or invalidated, or otherwise cease to be in full
force and effect, or any Loan Party shall contest in any manner the validity or enforceability
thereof.



     8.14 Government Seizure. If any Governmental Authority (or Person acting in any such
capacity after a coup thereof) shall have condemned, nationalized, seized, or otherwise
expropriated all or any substantial part of the property, shares of capital stock or other
assets of any Foreign Loan Party or any of its Restricted Subsidiaries (other than Excluded
Subsidiaries), or shall have assumed custody or control of such property or other assets or of the
business or operations of any Foreign Loan Party or any of its Restricted Subsidiaries (other than
Excluded Subsidiaries), or shall have taken any action for the dissolution or disestablishment of
any Foreign Loan Party or any of its Restricted Subsidiaries (other than Excluded Subsidiaries) or
any action that would prevent any Foreign Loan Party, any of its Restricted Subsidiaries (other
than Excluded Subsidiaries) or any of their respective officers from carrying on the business of
such Foreign Loan Party, any of its Restricted Subsidiaries (other than Excluded Subsidiaries) or a
substantial part thereof.



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9. RIGHTS AND REMEDIES.




     9.1 Rights and Remedies. Upon the occurrence and during the continuation of an Event
of Default, Agent may, and, at the instruction of the Required Lenders, shall (in each case under
clauses (a) or (b) by written notice to Borrowers), in addition to any other rights or remedies
provided for hereunder or under any other Loan Document or by applicable Law, do any one or more of
the following:


          (a) declare the Obligations (other than the Bank Product Obligations), whether evidenced by
this Agreement or by any of the other Loan Documents immediately due and payable, whereupon the
same shall become and be immediately due and payable and Borrowers shall be obligated to repay all
of such Obligations in full, without presentment, demand, protest, or further notice or other
requirements of any kind, all of which are hereby expressly waived by each Borrower;


          (b) declare the Revolver Commitments terminated, whereupon the Revolver Commitments shall
immediately be terminated together with (i) any obligation of any Lender hereunder to make
Advances, (ii) the obligation of the Swing Lender to make Swing Loans, and (iii) the obligation of
the Issuing Lender to issue Letters of Credit; and


          (c) exercise all other rights and remedies available to Agent or Lenders under the Loan
Documents or applicable Law.



The foregoing to the contrary notwithstanding, upon the occurrence of any Event of Default
described in Section 8.4 or Section 8.5, in addition to the remedies set forth
above, without any notice to any Borrower or any other Person or any act by the Lender Group, the
Revolver Commitments shall automatically terminate and the Obligations (other than the Bank Product
Obligations), inclusive of all accrued and unpaid interest thereon and all fees and all other
amounts owing under this Agreement or under any of the other Loan Documents, shall automatically
and immediately become due and payable and Borrowers shall be obligated to repay all of such
Obligations in full, without presentment, demand, protest, or notice of any kind, all of which are
expressly waived by each Borrower.




     9.2 Remedies Cumulative. The rights and remedies of the Lender Group under this
Agreement, the other Loan Documents, and all other agreements shall be cumulative. The Lender
Group shall have all other rights and remedies not inconsistent herewith as provided
under the Code and the PPSA, by law, or in equity. No exercise by the Lender Group of one
right or remedy shall be deemed an election, and no waiver by the Lender Group of any Event of
Default shall be deemed a continuing waiver. No delay by the Lender Group shall constitute a
waiver, election, or acquiescence by it.



10. WAIVERS; INDEMNIFICATION.




     10.1 Demand; Protest; etc. Each Borrower waives demand, protest, notice of protest,
notice of default or dishonor, notice of payment and nonpayment, nonpayment at maturity, release,
compromise, settlement, extension, or renewal of documents, instruments, chattel paper, and
guarantees at any time held by the Lender Group on which such Borrower may in any way be liable.



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     10.2 The Lender Group’s Liability for Collateral. Each Borrower hereby agrees that:
(a) so long as Agent complies with its obligations, if any, under the Code, the Lender Group shall
not in any way or manner be liable or responsible for: (i) the safekeeping of the Collateral, (ii)
any loss or damage thereto occurring or arising in any manner or fashion from any cause, (iii) any
diminution in the value thereof, or (iv) any act or default of any carrier, warehouseman, bailee,
forwarding agency, or other Person, and (b) all risk of loss, damage, or destruction of the
Collateral shall be borne by Borrowers.



     10.3 Indemnification. Borrowers shall pay, indemnify, defend, and hold Agent-Related
Persons, the Lender-Related Persons, and each Participant (each, an “Indemnified Person”)
harmless (to the fullest extent permitted by law) from and against any and all claims, demands,
suits, actions, investigations, proceedings, liabilities, fines, costs, penalties, and damages, and
all reasonable fees and disbursements of attorneys, experts, or consultants and all other costs and
expenses actually incurred in connection therewith or in connection with the enforcement of this
indemnification (as and when they are incurred and irrespective of whether suit is brought), at any
time asserted against, imposed upon, or incurred by any of them (a) in connection with or as a
result of or related to the execution and delivery (provided that Borrowers shall not be liable for
costs and expenses (including attorneys fees) of any Lender (other than WFCF or its Applicable
Designee) incurred in advising, structuring, drafting, reviewing, administering or syndicating the
Loan Documents), enforcement, performance, or administration (including any restructuring or
workout with respect hereto) of this Agreement, any of the other Loan Documents, or the
Transactions or any transactions contemplated hereby or thereby or the monitoring of Borrowers’ and
their Subsidiaries’ compliance with the terms of the Loan Documents (provided,
however, that the indemnification in this clause (a) shall not extend to (i) disputes
solely between or among Lenders or (ii) disputes solely between or among Lenders and their
respective Affiliates; it being understood and agreed that the indemnification in this clause (a)
shall extend to Agent (but not Lenders) relative to disputes between or among Agent on the one
hand, and one or more Lenders, or one or more of their Affiliates, on the other hand, or (iii) any
Taxes or any costs attributable to Taxes, which shall governed by Section 16), (b) with
respect to any investigation, litigation, or proceeding related to this Agreement, any other Loan
Document, or the use of the proceeds of the credit provided hereunder (irrespective of whether any
Indemnified Person is a party thereto), or any act, omission, event, or circumstance in any manner
related thereto, whether brought by a third party or by the Company or any other Loan Party, and
(c) in connection with or arising out of any presence or release of Hazardous
Materials at, on, under, to or from any assets or properties owned, leased or operated by any
Borrower or any of its Subsidiaries or any Environmental Actions, Environmental Liabilities or
Remedial Actions related in any way to any such assets or properties of any Borrower or any of its
Subsidiaries (each and all of the foregoing, the “Indemnified Liabilities”). The foregoing
to the contrary notwithstanding, no Borrower shall have any obligation to any Indemnified Person
under this Section 10.3 with respect to any Indemnified Liability that (i) a court of
competent jurisdiction finally determines to have resulted from the gross negligence or willful
misconduct of such Indemnified Person or (ii) result from a claim brought by the Company or any
other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations
hereunder or under any other Loan Document, if the Company or such other Loan Party has obtained a
final and nonappealable judgment in its favor on such claim as determined by a court of competent
jurisdiction. This provision shall survive the termination of this Agreement and the repayment of
the Obligations. If any Indemnified Person makes any payment to any other



69









 







Indemnified Person with
respect to an Indemnified Liability as to which any Borrower was required to indemnify the
Indemnified Person receiving such payment, the Indemnified Person making such payment is entitled
to be indemnified and reimbursed by Borrowers with respect thereto. WITHOUT LIMITATION, THE
FOREGOING INDEMNITY SHALL APPLY TO EACH INDEMNIFIED PERSON WITH RESPECT TO INDEMNIFIED LIABILITIES
WHICH IN WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF ANY NEGLIGENT ACT OR OMISSION OF SUCH
INDEMNIFIED PERSON OR OF ANY OTHER PERSON. For the avoidance of doubt, the obligations of the
Borrowers under this Section 10.3 and all other provisions in any of the other Loan
Documents with respect to indemnification by the Company or any of its Subsidiaries are subject in
all respects to the limitations set forth in Section 2.14(a).



11. NOTICES.



          Unless otherwise provided in this Agreement, all notices or demands relating to this Agreement
or any other Loan Document shall be in writing and (except for financial statements and other
informational documents which may be sent by first-class mail, postage prepaid) shall be personally
delivered or sent by registered or certified mail (postage prepaid, return receipt requested),
overnight courier, electronic mail (at such email addresses as a party may designate in accordance
herewith), or facsimile. In the case of notices or demands to any Borrower or Agent, as the case
may be, they shall be sent to the respective address set forth below:



	 	 	 	 	 

	 

	 	If to any Borrower:
	 	EXIDE TECHNOLOGIES
	 

	 	 	 	13000 Deerfield Parkway, Building 200
	 

	 	 	 	Milton, GA 30004
	 

	 	 	 	Attn: Nicholas Iuanow, Vice President and
	 

	 	 	 	Corporate Treasurer
	 

	 	 	 	Fax No. 678-566-9638
	 
	 	 	 	 
	 

	 	with copies to:
	 	Exide Technologies
	 

	 	 	 	13000 Deerfield Parkway, Building 200
	 

	 	 	 	Milton, GA 30004
	 

	 	 	 	Attn: Brad Kalter, Esq.
	 

	 	 	 	Fax No.: 678-566-9229
	 
	 	 	 	 
	 

	 	 	 	Jones Day
	 

	 	 	 	1420 Peachtree Street, NE, Suite 800
	 

	 	 	 	Atlanta, GA 30309
	 

	 	 	 	Attn: Aldo LaFiandra, Esq.
	 

	 	 	 	Fax No.: 404-581-8330






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	 	If to Agent:
	 	WELLS FARGO CAPITAL FINANCE, LLC
	 

	 	 	 	1100 Abernathy Road
	 

	 	 	 	Suite 1600
	 

	 	 	 	Atlanta, GA 30328
	 

	 	 	 	Attn: Loan Portfolio Manager
	 

	 	 	 	Fax No.: 770-804-0785
	 
	 	 	 	 
	 

	 	with copies to:
	 	Winston & Strawn LLP
	 

	 	 	 	214 N. Tryon Street
	 

	 	 	 	Suite 2200
	 

	 	 	 	Charlotte, NC 28202
	 

	 	 	 	Attn: Molly McGill, Esq.
	 

	 	 	 	Fax No.: 704-350-7800





          Any party hereto may change the address at which they are to receive notices hereunder, by
notice in writing in the foregoing manner given to the other party. All notices or demands sent in
accordance with this Section 11, shall be deemed received on the earlier of the date of
actual receipt or 3 Business Days after the deposit thereof in the mail; provided, that (a)
notices sent by overnight courier service shall be deemed to have been given when received, (b)
notices by facsimile shall be deemed to have been given when sent (except that, if not given during
normal business hours for the recipient, shall be deemed to have been given at the opening of
business on the next Business Day for the recipient) and (c) notices by electronic mail shall be
deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as
by the “return receipt requested” function, as available, return email or other written
acknowledgment).



12. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER.



          (a) THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO
THE CONTRARY IN ANOTHER LOAN DOCUMENT IN RESPECT OF SUCH OTHER LOAN DOCUMENT), THE CONSTRUCTION,
INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF, AND THE RIGHTS OF THE PARTIES HERETO AND
THERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO
SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.


          (b) THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW
YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL
OR OTHER PROPERTY MAY BE BROUGHT, AT AGENT’S OPTION, IN THE COURTS WHERE SUCH COLLATERAL OR OTHER
PROPERTY MAY BE FOUND. EACH BORROWER AND



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EACH MEMBER OF THE LENDER GROUP WAIVE, TO THE EXTENT
PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON
CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS
SECTION 12(b).



          (c) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH BORROWER AND EACH MEMBER OF THE
LENDER GROUP HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED
THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. EACH BORROWER AND EACH MEMBER OF THE LENDER GROUP REPRESENT THAT EACH HAS
REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED
AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.


          (d) Each of the Loan Parties hereby irrevocably appoints Corporation Service Company its
authorized agent to accept and acknowledge service of any and all process which may be served in
any suit, action or proceeding of the nature referred to in this Section 12 and consents to
process being served in any such suit, action or proceeding upon Corporation Service Company in any
manner or by the mailing of a copy thereof by registered or certified mail, postage prepaid, return
receipt requested, to the Company’s address referred to in Section 11. Each of the Loan
Parties agrees that such service (i) shall be deemed in every respect effective service of process
upon it in any such suit, action or proceeding and (ii) shall, to the fullest extent permitted by
law, be taken and held to be valid personal service upon and personal delivery to it. Nothing in
this Section 12 shall affect the right of any Lender to serve process in any manner
permitted by law or limit the right of any Lender to bring proceedings against any Loan Party in
any court of any jurisdiction or jurisdictions.



13. ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS.




     13.1 Assignments and Participations.


          (a) With the prior written consent of the Company, which consent of the Company shall not be
unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default
has occurred and is continuing, or (2) in connection with an assignment
to a Person that is a Lender, an Affiliate (other than individuals) of a Lender or a Related
Fund and with the prior written consent of Agent, which consent of Agent shall not be unreasonably
withheld, delayed or conditioned, and shall not be required in connection with an assignment to a
Person that is a Lender, an Affiliate (other than individuals) of a Lender or a Related Fund, any
Lender may assign and delegate to one or more assignees so long as such prospective assignee is an
Eligible Transferee (each, an “Assignee”) all or any portion of the Obligations, the
Revolver Commitments and the other rights and obligations of such Lender hereunder and under the
other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such
minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other



72









 








Lender
or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each
other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned
to all such new Lenders is at least $5,000,000); provided, however, that Borrowers
and Agent may continue to deal solely and directly with such Lender in connection with the interest
so assigned to an Assignee until (i) written notice of such assignment, together with payment
instructions, addresses, and related information with respect to the Assignee, have been given to
Borrowers and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have
delivered to Borrowers and Agent an Assignment and Acceptance and Agent has notified the assigning
Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived
by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a
processing fee in the amount of $3,500.



          (b) From and after the date that Agent notifies the assigning Lender (with a copy to
Borrowers) that it has received an executed Assignment and Acceptance and, if applicable, payment
of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment
and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the
Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations
hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment
and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released
from any future obligations under this Agreement (and in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender’s rights and obligations under this
Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto);
provided, however, that nothing contained herein shall release any assigning Lender
from obligations that survive the termination of this Agreement, including such assigning Lender’s
obligations under Section 15 and Section 17.9(a). At the time of each assignment
pursuant to Section 13.1(a) to a Person that is not already a Lender hereunder and that is
not a United States person (as such term is defined in Section 7701(a)(30) of the IRC) the assignee
shall comply with Article 16. To the extent that prior to the occurrence of the
acceleration of the Obligations an assignment of all or any portion of a Lender’s Revolver
Commitment and related outstanding Obligations pursuant to Sections 2.1(g), 2.3(g),
2.13(b), 14.2, or 13.1(a) would, at the time of such assignment, result in
increased costs under Section 2.13, Section 14.2, or Article 16 from those
being charged by the respective assigning Lender prior to such assignment, then the Borrowers shall
not be obligated to pay such increased costs (although the Borrowers, in accordance with and
pursuant to the other provisions of this Agreement, shall be obligated to pay any other increased
costs of the type described
above resulting from changes in law, rule, regulation, order or other decision with respect to
any of the foregoing by any Governmental Authority after the date of the respective assignment).


          (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder
and the Assignee thereunder confirm to and agree with each other and the other parties hereto as
follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any
other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to the



73









 








financial condition of any Borrower
or the performance or observance by any Borrower of any of its obligations under this Agreement or
any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has
received a copy of this Agreement, together with such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into such Assignment and
Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning
Lender or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to
exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent,
by the terms hereof and thereof, together with such powers as are reasonably incidental thereto,
and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of
this Agreement are required to be performed by it as a Lender.



          (d) Immediately upon Agent’s receipt of the required processing fee, if applicable, and
delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement
shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the
addition of the Assignee and the resulting adjustment of the Revolver Commitments arising
therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver
Commitments of the assigning Lender pro tanto.


          (e) Any Lender may at any time sell to one or more commercial banks, financial institutions,
or other Persons (a “Participant”) participating interests in all or any portion of its
Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the
“Originating Lender”) hereunder and under the other Loan Documents; provided,
however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this
Agreement and the other Loan Documents and the Participant receiving the participating interest in
the Obligations, the Revolver Commitments, and the other rights and interests of the Originating
Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and
the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the
Originating Lender shall remain solely responsible for the performance of such obligations, (iii)
Borrowers, Agent, and Lenders shall continue to deal solely and directly with the Originating
Lender in connection with the Originating Lender’s rights and obligations under this Agreement and
the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under
which the Participant has the right to approve any amendment to, or any consent or waiver with
respect to, this Agreement or any other Loan Document, except to the
extent such amendment to, or consent or waiver with respect to this Agreement or of any other
Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such
Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder
in which such Participant is participating, (C) release all or substantially all of the Collateral
or guaranties (except to the extent expressly provided herein or in any of the Loan Documents)
supporting the Obligations hereunder in which such Participant is participating, (D) postpone the
payment of, or reduce the amount of, the interest or fees payable to such Participant through such
Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due
dates of scheduled principal repayments or prepayments or premiums payable to such Participant
through such Lender, and (v) all amounts payable by Borrowers hereunder shall be determined as if
such Lender had not sold such participation, except that, if amounts



74









 








outstanding under this
Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall be deemed to have the right of set
off in respect of its participating interest in amounts owing under this Agreement to the same
extent as if the amount of its participating interest were owing directly to it as a Lender under
this Agreement. The rights of any Participant only shall be derivative through the Originating
Lender with whom such Participant participates and no Participant shall have any rights under this
Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent,
Borrowers, the collections of Borrowers or their Subsidiaries, the Collateral, or otherwise in
respect of the Obligations. No Participant shall have the right to participate directly in the
making of decisions by Lenders among themselves.



          (f) In connection with any such assignment or participation or proposed assignment or
participation or any grant of a security interest in, or pledge of, its rights under and interest
in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all
documents and information which it now or hereafter may have relating to any Borrower and its
Subsidiaries and their respective businesses.


          (g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a
security interest in, or pledge, all or any portion of its rights under and interest in this
Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal
Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce
such pledge or security interest in any manner permitted under applicable Law.


          (h) Agent (as a non-fiduciary agent on behalf of Borrowers) shall maintain, or cause to be
maintained, a register (the “Register”) on which it enters the name and address of each
Lender as the registered owner of the Revolver Commitment (and the principal amount of Advances
owing thereto and stated interest thereon) held by such Lender (each, a “Registered Loan”).
(i) A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or
sold in whole or in part only by registration of such assignment or sale on the Register (and each
registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such
Registered Loan (and the registered note, if any, evidencing the same) may be effected only by
registration of such assignment or sale on the Register, together with the surrender of the
registered note, if any, evidencing the same duly endorsed by (or accompanied by a written
instrument of assignment or sale duly executed by) the holder of such registered note, whereupon,
at the request of the designated assignee(s) or transferee(s), one or more new
registered notes in the same aggregate principal amount shall be issued to the designated
assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered
Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in
whose name such Registered Loan (and the registered note, if any, evidencing the same) is
registered as the owner thereof for the purpose of receiving all payments thereon and for all other
purposes, notwithstanding notice to the contrary.


          (i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a
non-fiduciary agent solely for the purpose set forth in this Section 13.1(i) on behalf of
Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all
participants in the Registered Loans held by it (and the principal amount (and stated interest
thereon) of the portion of such Registered Loans that is subject to such participations) (the



75









 








“Participant Register”). A Registered Loan (and the Registered Note, if any, evidencing
the same) may be participated in whole or in part only by registration of such participation on the
Participant Register (and each registered note shall expressly so provide). Any participation of
such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by
the registration of such participation on the Participant Register.



          (j) Agent shall make a copy of the Register (and each Lender shall make a copy of its
Participant Register to the extent it has one) available for review by Borrowers from time to time
as Borrowers may reasonably request.


          (k) The entries in the Register shall be conclusive absent manifest error, and the Borrower,
Agent 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.



     13.2 Successors. This Agreement shall bind and inure to the benefit of the respective
successors and assigns of each of the parties; provided, however, that no Borrower
may assign this Agreement or any rights or duties hereunder without Lenders’ prior written consent
and any prohibited assignment shall be absolutely void ab initio. No consent to assignment by
Lenders shall release any Borrower from its Obligations. A Lender may assign this Agreement and
the other Loan Documents and its rights and duties hereunder and thereunder pursuant to Section
13.1 and, except as expressly required pursuant to Section 13.1, no consent or approval
by any Borrower is required in connection with any such assignment.



14. AMENDMENTS; WAIVERS.




     14.1 Amendments and Waivers. 


          (a) No amendment, waiver or other modification of any provision of this Agreement or any other
Loan Document (other than the Fee Letter), and no consent with respect to any departure by any
Borrower therefrom, shall be effective unless the same shall be in writing and signed by the
Required Lenders (or by Agent at the written request of the Required Lenders) and the Loan Parties
that are party thereto and then any such waiver or consent shall be effective, but only in the
specific instance and for the specific purpose for which given; provided, however,
that no such waiver, amendment, or consent shall, unless in writing and signed by all of
Lenders directly affected thereby and all of the Loan Parties that are party thereto, do any
of the following:



               (i) increase the amount of or extend the expiration date of any Revolver Commitment of any
Lender or amend, modify, or eliminate the last sentence of Section 2.4(c) regarding pro
rata Revolver Commitment reductions;



               (ii) postpone or delay any date fixed by this Agreement or any other Loan Document for any
payment of principal, interest, fees, or other amounts due hereunder or under any other Loan
Document;



               (iii) reduce the principal of, or the rate of interest on, any loan or other extension of
credit hereunder, or reduce any fees or other amounts payable hereunder or under



76









 







any other Loan
Document (except in connection with the waiver of applicability of Section 2.6(c), which
waiver shall be effective with the written consent of the Required Lenders);



               (iv) amend, modify, or eliminate this Section or any provision of this Agreement providing for
consent or other action by all Lenders;



               (v) other than as permitted by Section 15.11, release Agent’s Lien in and to any of
the Collateral;



               (vi) amend, modify, or eliminate the definition of “Required Lenders” or “Pro Rata Share”;



               (vii) contractually subordinate any of Agent’s Liens other than as provided in Section
15.11 or in the Intercreditor Agreement;



               (viii) other than in connection with a merger, liquidation, dissolution or sale of such Person
expressly permitted by the terms hereof or the other Loan Documents, release any Borrower or any
Guarantor from any obligation for the payment of money or consent to the assignment or transfer by
any Borrower or any Guarantor of any of its rights or duties under this Agreement or the other Loan
Documents;



               (ix) amend, modify, or eliminate any of the provisions of Section 2.4(b)(i),
(ii) or (iii);



               (x) amend, modify, or eliminate any of the provisions of Section 13.1(a) to permit a
Loan Party, or an Affiliate of a Loan Party to be permitted to become an Assignee; or



               (xi) amend, modify, or eliminate the definition of Borrowing Base or any of the defined terms
(including the definitions of Eligible Accounts and Eligible Inventory) that are used in such
definition to the extent that any such change results in more credit being made available to
Borrowers based upon the Borrowing Base, but not otherwise, or the definitions of Maximum Revolver
Amount, or change Section 2.1(c).


          (b) No amendment, waiver, modification, elimination, or consent shall amend, modify, or waive
(i) the definition of, or any of the terms or provisions of, the Fee Letter, without the written
consent of Agent and Borrowers (and shall not require the written consent of any of Lenders), and
(ii) any provision of Section 15 pertaining to Agent, or any other rights or duties of
Agent under this Agreement or the other Loan Documents, without the written consent of Agent,
Borrowers, and the Required Lenders,


          (c) No amendment, waiver, modification, elimination, or consent shall amend, modify, or waive
any provision of this Agreement or the other Loan Documents pertaining to Issuing Lender, or any
other rights or duties of Issuing Lender under this Agreement or the other Loan Documents, without
the written consent of Issuing Lender, Agent, Borrowers, and the Required Lenders,


          (d) No amendment, waiver, modification, elimination, or consent shall amend, modify, or waive
any provision of this Agreement or the other Loan Documents pertaining to




77












 




Swing Lender, or any other rights or duties of Swing Lender under this Agreement or the
other Loan Documents, without the written consent of Swing Lender, Agent, Borrowers, and the
Required Lenders,




          (e) Anything in this Section 14.1 to the contrary notwithstanding, (i) any amendment,
modification, elimination, waiver, consent, termination, or release of, or with respect to, any
provision of this Agreement or any other Loan Document that relates only to the relationship of the
Lender Group among themselves, and that does not affect the rights or obligations of any Borrower
or any of its Subsidiaries, shall not require consent by or the agreement of any Loan Party, and
(ii) any amendment, waiver, modification, elimination, or consent of or with respect to any
provision of this Agreement or any other Loan Document may be entered into without the consent of,
or over the objection of, any Defaulting Lender other than any of the matters governed by
Section 14.1(a)(i) through (iii).




     14.2 Replacement of Certain Lenders.



          (a) If (i) any action to be taken by the Lender Group or Agent hereunder requires the consent,
authorization, or agreement of all Lenders or all Lenders affected thereby and if such action has
received the consent, authorization, or agreement of the Required Lenders but not of all Lenders or
all Lenders affected thereby, or (ii) any Lender makes a claim for compensation under Section
16, then Borrowers or Agent, upon at least 5 Business Days prior irrevocable notice, may
permanently replace any Lender that failed to give its consent, authorization, or agreement (a
“Holdout Lender”) or any Lender that made a claim for compensation (a “Tax Lender”)
with one or more Replacement Lenders, and the Holdout Lender or Tax Lender, as applicable, shall
have no right to refuse to be replaced hereunder. Such notice to replace the Holdout Lender or Tax
Lender, as applicable, shall specify an effective date for such replacement, which date shall not
be later than 15 Business Days after the date such notice is given.




          (b) Prior to the effective date of such replacement, the Holdout Lender or Tax Lender, as
applicable, and each Replacement Lender shall execute and deliver an Assignment and Acceptance,
subject only to the Holdout Lender or Tax Lender, as applicable, being repaid in full its share of
the outstanding Obligations (without any premium or penalty of any kind whatsoever, but including
(i) all interest, fees and other amounts that may be due in payable in respect thereof, and (ii) an
assumption of its Pro Rata Share of the Letters of Credit). If the Holdout Lender or Tax Lender,
as applicable, shall refuse or fail to execute and deliver any such Assignment and Acceptance prior
to the effective date of such replacement, Agent may, but shall not be required to, execute and
deliver such Assignment and Acceptance in the name or and on behalf of the Holdout Lender or Tax
Lender, as applicable, and irrespective of whether Agent executes and delivers such Assignment and
Acceptance, the Holdout Lender or Tax Lender, as applicable, shall be deemed to have executed and
delivered such Assignment and Acceptance. The replacement of any Holdout Lender or Tax Lender, as
applicable, shall be made in accordance with the terms of Section 13.1. Until such time as
one or more Replacement Lenders shall have acquired all of the Obligations, the Revolver
Commitments, and the other rights and obligations of the Holdout Lender or Tax Lender, as
applicable, hereunder and under the other Loan Documents, the Holdout Lender or Tax Lender, as
applicable, shall remain obligated to make the Holdout Lender’s or Tax Lender’s, as applicable, Pro
Rata Share of Advances and to






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purchase a participation in each Letter of Credit, in an amount equal to its Pro Rata Share of
such Letters of Credit.




     14.3 No Waivers; Cumulative Remedies. No failure by Agent or any Lender to exercise
any right, remedy, or option under this Agreement or any other Loan Document, or delay by Agent or
any Lender in exercising the same, will operate as a waiver thereof. No waiver by Agent or any
Lender will be effective unless it is in writing, and then only to the extent specifically stated.
No waiver by Agent or any Lender on any occasion shall affect or diminish Agent’s and each Lender’s
rights thereafter to require strict performance by each Borrower of any provision of this
Agreement. Agent’s and each Lender’s rights under this Agreement and the other Loan Documents will
be cumulative and not exclusive of any other right or remedy that Agent or any Lender may have.



15. AGENT; THE LENDER GROUP.




     15.1 Appointment and Authorization of Agent. Each Lender hereby designates and
appoints WFCF as its agent under this Agreement and the other Loan Documents (for the purposes of
this Section 15, the term “Agent” shall mean WFCF in its capacities as Agent and as
security trustee under the Security Trust Deed dated January 25, 2011 and each relevant Security
Document) and each Lender hereby irrevocably authorizes (and by entering into a Bank Product
Agreement, each Bank Product Provider shall be deemed to designate, appoint, and authorize) Agent
to execute and deliver each of the other Loan Documents on its behalf and to take such other action
on its behalf under the provisions of this Agreement and each other Loan Document and to exercise
such powers and perform such duties as are expressly delegated to Agent by the terms of this
Agreement or any other Loan Document, together with such powers as are reasonably incidental
thereto. Agent agrees to act as agent for and on behalf of Lenders (and the Bank Product
Providers) on the conditions contained in this Section 15. Any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document notwithstanding, Agent shall
not have any duties or responsibilities, except those expressly set forth herein or in the other
Loan Documents, nor shall Agent have or be deemed to have any fiduciary relationship with any
Lender (or Bank Product Provider), and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against Agent. Without limiting the generality of the foregoing, the use of the
term “agent” in this Agreement or the other Loan Documents with reference to Agent is not intended
to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of
any applicable Law. Instead, such term is used merely as a matter of market custom, and is
intended to create or reflect only a representative relationship between independent contracting
parties, without the necessity of any notice to or further consent from any Lender. Each Lender
hereby further authorizes (and by entering into a Bank Product Agreement, each Bank Product
Provider shall be deemed to authorize) Agent to act as the secured party under each of the Loan
Documents that create a Lien on any item of Collateral. Except as expressly otherwise provided in
this Agreement, in the absence of any instructions from the Required Lenders or all Lenders, as
applicable, to the contrary, Agent shall have and may use its sole discretion with respect to
exercising or refraining from exercising any discretionary rights or taking or refraining from
taking any actions that Agent expressly is entitled to take or assert under or pursuant to this
Agreement and the other Loan Documents. Without limiting the generality of the foregoing, or of
any other provision of the Loan



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Documents that provides rights or powers to Agent, Lenders agree that Agent shall have the
right to exercise the following powers as long as this Agreement remains in effect: (a) maintain,
in accordance with its customary business practices, ledgers and records reflecting the status of
the Obligations, the Collateral, the Collections of Borrowers and their Subsidiaries, and related
matters, (b) execute or file any and all financing or similar statements or notices, amendments,
renewals, supplements, documents, instruments, proofs of claim, notices and other written
agreements with respect to the Loan Documents, (c) make Advances, for itself or on behalf of
Lenders, as provided in the Loan Documents, (d) exclusively receive, apply, and distribute the
Collections of Borrowers and their Subsidiaries as provided in the Loan Documents, (e) open and
maintain such bank accounts and cash management arrangements as Agent deems necessary and
appropriate in accordance with the Loan Documents for the foregoing purposes with respect to the
Collateral and the Collections of Borrowers and their Subsidiaries, (f) perform, exercise, and
enforce any and all other rights and remedies of the Lender Group with respect to the Borrowers or
their Subsidiaries, the Obligations, the Collateral, the Collections of Borrowers and their
Subsidiaries, or otherwise related to any of same as provided in the Loan Documents, and (g) incur
and pay such Lender Group Expenses as Agent may deem necessary or appropriate for the performance
and fulfillment of its functions and powers pursuant to the Loan Documents.




     Without prejudice to the foregoing paragraph, each Lender hereby designates, appoints and
authorizes (and by entering into a Bank Product Agreement, each Bank Product Provider shall be
deemed to designate, appoint, and authorize) the Agent as the person holding the power of attorney
(fondé de pouvoir) for and on behalf of the Lenders (and the Bank Product Providers) as
contemplated under Article 2692 of the Civil Code of Quebec, to enter into, to take and to hold on
their behalf, and for their benefit, a deed of hypothec (“Deed of Hypothec”) to be executed
by any Foreign Loan Party under the laws of the Province of Quebec and creating a security interest
under such laws on Collateral located in such Province and to exercise such powers and duties which
are conferred upon the Agent under such deed. Each Lender hereby additionally designates, appoints
and authorizes (and by entering into a Bank Product Agreement, each Bank Product Provider shall be
deemed to additionally designate, appoint, and authorize) the Agent as agent, mandatary, custodian
and depositary for and on behalf of each of them (i) to hold and to be the sole registered holder
of any bond (“Bond”) issued under the Deed of Hypothec, the whole notwithstanding Section
32 of the Act respecting the special powers of legal persons (Quebec) or any other applicable law,
and (ii) to enter into, to take and to hold on their behalf, and for their benefit, a Bond Pledge
Agreement (“Pledge”) to be executed by such Foreign Loan Party under the laws of the
Province of Quebec and creating a pledge on the Bond as security for the payment and performance of
the Foreign Obligations. In this respect, (a) the Agent, as agent, mandatary, custodian and
depositary of the Lenders (and the Bank Product Providers), shall keep a record indicating the
names and addresses of, and the pro rata portion of the obligations and indebtedness secured by the
Pledge, owing to the Lenders (and the Bank Product Providers) for and on behalf of whom the Bond is
so held from time to time, and (b) each Lender (and each Bank Product Provider) will be entitled to
the benefits of any Collateral charged under the Deed of Hypothec and the Pledge and will
participate in the proceeds of realization of any such Collateral, the whole in accordance with the
terms hereof. The Agent, in such aforesaid capacities shall (x) have the sole and exclusive right
and authority to exercise, except as may be otherwise specifically restricted by the terms hereof,
all rights and remedies given to the Agent with respect to the Collateral under the Deed of
Hypothec and Pledge, applicable law or otherwise, and (y) benefit from and be subject to all
provisions hereof with



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respect to the Agent mutatis mutandis, including, without limitation, all such provisions with
respect to the liability or responsibility to and indemnification by the Lenders (and the Bank
Product Providers). Any Person who becomes a Lender (and/or a Bank Product Provider) shall be
deemed to have consented to and confirmed the Agent as the person holding the power of attorney
(fondé de pouvoir) and as the agent, mandatary, custodian and depositary as aforesaid and to have
ratified, as of the date it becomes a Lender (and/or Bank Product Provider) all actions taken by
the Agent in such capacities. The Agent shall be entitled to delegate from time to time any of its
powers or duties under the Deed of Hypothec and the Pledge to any Person and on such terms and
conditions as the Agent may determine from time to time. The execution prior to the date hereof by
the Agent of any Deed of hypothec, Pledge or other security documents made pursuant to the
applicable law of the Province of Quebec is hereby ratified and confirmed. Without prejudice to
Section 12 hereof, the provision of this paragraph shall be also governed by the laws of
the Province of Quebec.




     15.2 Delegation of Duties. Agent may execute any of its duties under this Agreement
or any other Loan Document by or through agents, employees or attorneys in fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties. Agent shall not be
responsible for the negligence or misconduct of any agent or attorney in fact that it selects as
long as such selection was made without gross negligence or willful misconduct or made in breach in
bad faith of Agent’s obligations hereunder or under any other Loan Document (in each case, as a
finally determined by a court of competent jurisdiction).



     15.3 Liability of Agent. None of the Agent-Related Persons shall (a) be liable for
any action taken or omitted to be taken by any of them under or in connection with this Agreement
or any other Loan Document or the Transactions or any transactions contemplated hereby (except for
its own gross negligence or willful misconduct or for breach in bad faith of their obligations
hereunder or under any other Loan Document (in each case, as a finally determined by a court of
competent jurisdiction)), or (b) be responsible in any manner to any of Lenders (or Bank Product
Providers) for any recital, statement, representation or warranty made by any Borrower or any of
its Subsidiaries or Affiliates, or any officer or director thereof, contained in this Agreement or
in any other Loan Document, or in any certificate, report, statement or other document referred to
or provided for in, or received by Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of any Borrower or its Subsidiaries or any
other party to any Loan Document to perform its obligations hereunder or thereunder or for any
shortfall which arises on the enforcement or realization of the Collateral. No Agent-Related
Person shall be under any obligation to any Lenders (or Bank Product Providers) to ascertain or to
inquire as to the observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the books and records or properties of
any Borrower or its Subsidiaries. No Loan Party or Lender (other than the Agent) may take any
proceedings against any officer, employee, agent or attorney of the Agent in respect of any claim
it might have against the Agent or in respect of any act or omission of any kind by that officer,
employee, agent or attorney in relation to any Loan Document or any Collateral and any officer,
employee, agent or attorney of the Agent may rely on this provision.



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     15.4 Reliance by Agent. Agent shall be entitled to rely, and shall be fully protected
in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter,
telegram, facsimile or other electronic method of transmission, telex or telephone message,
statement or other document or conversation believed by it to be genuine and correct and to have
been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal
counsel (including counsel to Borrowers or counsel to any Lender), independent accountants and
other experts selected by Agent. Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless Agent shall first receive such advice
or concurrence of the Required Lenders or all Lenders (as applicable) and until such instructions
are received, Agent shall act, or refrain from acting, as it deems advisable. If Agent so
requests, it shall first be indemnified to its reasonable satisfaction by Lenders (and, if it so
elects, the Bank Product Providers) against any and all liability and expense that may be incurred
by it by reason of taking or continuing to take any such action. Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any other Loan Document
in accordance with a request or consent of the Required Lenders and such request and any action
taken or failure to act pursuant thereto shall be binding upon all of Lenders (and Bank Product
Providers). Notwithstanding any other provision of a Loan Document to the contrary, the Agent need
not, and may omit to, do anything if it would or might in its reasonable opinion constitute a
breach of any law or regulation or a breach of a fiduciary obligation or duty of confidentiality.



     15.5 Notice of Default or Event of Default. Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default, except with respect to
defaults in the payment of principal, interest, fees, and expenses required to be paid to Agent for
the account of Lenders and, except with respect to Events of Default of which Agent has actual
knowledge, unless Agent shall have received written notice from a Lender or any Borrower referring
to this Agreement, describing such Default or Event of Default, and stating that such notice is a
“notice of default.” Agent promptly will notify Lenders of its receipt of any such notice or of
any Event of Default of which Agent has actual knowledge. If any Lender obtains actual knowledge
of any Event of Default, such Lender promptly shall notify the other Lenders and Agent of such
Event of Default. Each Lender shall be solely responsible for giving any notices to its
Participants, if any. Subject to Section 15.4, Agent shall take such action with respect
to such Default or Event of Default as may be requested by the Required Lenders in accordance with
Section 9; provided, however, that unless and until Agent has received any
such request, Agent may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default or Event of Default as it shall deem advisable.



     15.6 Credit Decision. Each Lender (and Bank Product Provider) acknowledges that none
of Agent-Related Persons has made any representation or warranty to it, and that no act by Agent
hereinafter taken, including any review of the affairs of any Borrower and its Subsidiaries or
Affiliates, shall be deemed to constitute any representation or warranty by any Agent-Related
Person to any Lender (or Bank Product Provider). Each Lender represents (and by entering into a
Bank Product Agreement, each Bank Product Provider shall be deemed to represent) to Agent that it
has, independently and without reliance upon any Agent-Related Person and based on such due
diligence, documents and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and other condition and
creditworthiness of any Borrower or any other Person party to a Loan Document, and all applicable
bank regulatory laws relating to the Transactions or any



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transactions contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to Borrowers. Each Lender also represents (and by entering into a Bank Product
Agreement, each Bank Product Provider shall be deemed to represent) that it will, independently and
without reliance upon any Agent-Related Person and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit analysis, appraisals and
decisions in taking or not taking action under this Agreement and the other Loan Documents, and to
make such investigations as it deems necessary to inform itself as to the business, prospects,
operations, property, financial and other condition and creditworthiness of any Borrower or any
other Person party to a Loan Document. Except for notices, reports, and other documents expressly
herein required to be furnished to Lenders by Agent, Agent shall not have any duty or
responsibility to provide any Lender (or Bank Product Provider) with any credit or other
information concerning the business, prospects, operations, property, financial and other condition
or creditworthiness of any Borrower or any other Person party to a Loan Document that may come into
the possession of any of Agent-Related Persons. Each Lender acknowledges (and by entering into a
Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that Agent does
not have any duty or responsibility, either initially or on a continuing basis (except to the
extent, if any, that is expressly specified herein) to provide such Lender (or Bank Product
Provider) with any credit or other information with respect to any Borrower, its Affiliates or any
of their respective business, legal, financial or other affairs, and irrespective of whether such
information came into Agent’s or its Affiliates’ or representatives’ possession before or after the
date on which such Lender became a party to this Agreement (or such Bank Product Provider entered
into a Bank Product Agreement).




     15.7 Costs and Expenses; Indemnification. Agent may incur and pay Lender Group
Expenses to the extent Agent reasonably deems necessary or appropriate for the performance and
fulfillment of its functions, powers, and obligations pursuant to the Loan Documents, including
court costs, attorneys fees and expenses, fees and expenses of financial accountants, advisors,
consultants, and appraisers, costs of collection by outside collection agencies, auctioneer fees
and expenses, and costs of security guards or insurance premiums paid to maintain the Collateral,
whether or not Borrowers are obligated to reimburse Agent or Lenders for such expenses pursuant to
this Agreement or otherwise. Agent is authorized and directed to deduct and retain sufficient
amounts from the Collections of Borrowers and their Subsidiaries received by Agent to reimburse
Agent for such out-of-pocket costs and expenses prior to the distribution of any amounts to Lenders
(or Bank Product Providers). In the event Agent is not reimbursed for such costs and expenses by
Borrowers or their Subsidiaries, each Lender hereby agrees that it is and shall be obligated to pay
to Agent such Lender’s ratable thereof. Whether or not the transactions contemplated hereby are
consummated, each of Lenders, on a ratable basis, shall indemnify and defend Agent-Related Persons
(to the extent not reimbursed by or on behalf of Borrowers and without limiting the obligation of
Borrowers to do so) from and against any and all Indemnified Liabilities; provided,
however, that no Lender shall be liable for the payment to any Agent-Related Person of any
portion of such Indemnified Liabilities resulting solely from such Person’s gross negligence or
willful misconduct or for breach in bad faith of such Person’s obligations hereunder or under any
other Loan Document (in each case, as a finally determined by a court of competent jurisdiction)
nor shall any Lender be liable for the obligations of any Defaulting Lender in failing to make an
Advance or other extension of credit hereunder. Without limitation of the foregoing, each Lender
shall reimburse Agent upon demand for such Lender’s ratable share of any costs or out of pocket
expenses (including attorneys, accountants, advisors, and



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consultants fees and expenses) incurred by Agent in connection with the preparation,
execution, delivery, administration, modification, amendment, or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement or any other Loan Document to the extent that Agent is not
reimbursed for such expenses by or on behalf of Borrowers. The undertaking in this Section shall
survive the payment of all Obligations hereunder and the resignation or replacement of Agent.




     15.8 Agent in Individual Capacity. WFCF and its Affiliates may make loans to, issue
letters of credit for the account of, accept deposits from, provide Bank Products to, acquire
equity interests in, and generally engage in any kind of banking, trust, financial advisory,
underwriting, or other business with Borrowers and their Subsidiaries and Affiliates and any other
Person party to any Loan Document as though WFCF were not Agent hereunder, and, in each case,
without notice to or consent of the other members of the Lender Group. The other members of the
Lender Group acknowledge (and by entering into a Bank Product Agreement, each Bank Product Provider
shall be deemed to acknowledge) that, pursuant to such activities, WFCF or its Affiliates may
receive information regarding Borrowers or their Affiliates or any other Person party to any Loan
Documents that is subject to confidentiality obligations in favor of Borrowers or such other Person
and that prohibit the disclosure of such information to Lenders (or Bank Product Providers), and
Lenders acknowledge (and by entering into a Bank Product Agreement, each Bank Product Provider
shall be deemed to acknowledge) that, in such circumstances (and in the absence of a waiver of such
confidentiality obligations, which waiver Agent will use its reasonable best efforts to obtain),
Agent shall not be under any obligation to provide such information to them. The terms “Lender”
and “Lenders” include WFCF in its individual capacity.



     15.9 Successor Agent. Agent may resign as Agent upon 30 days prior written notice to
Lenders (unless such notice is waived by the Required Lenders) and Borrowers (unless such notice is
waived by Borrowers) and without any notice to the Bank Product Providers. If Agent resigns under
this Agreement, the Required Lenders shall be entitled, with (so long as no Event of Default has
occurred and is continuing) the consent of Borrowers (such consent not to be unreasonably withheld,
delayed, or conditioned), appoint a successor Agent for Lenders (and the Bank Product Providers).
If, at the time that Agent’s resignation is effective, it is acting as the Issuing Lender or the
Swing Lender, such resignation shall also operate to effectuate its resignation as the Issuing
Lender or the Swing Lender, as applicable, and it shall automatically be relieved of any further
obligation to issue Letters of Credit, to cause the Underlying Issuer to issue Letters of Credit,
or to make Swing Loans. If no successor Agent is appointed prior to the effective date of the
resignation of Agent, Agent may appoint, after consulting with Lenders and Borrowers, a successor
Agent. If Agent has materially breached or failed to perform any material provision of this
Agreement or of applicable Law, the Required Lenders may agree in writing to remove and replace
Agent with a successor Agent from among Lenders with (so long as no Event of Default has occurred
and is continuing) the consent of Borrowers (such consent not to be unreasonably withheld, delayed,
or conditioned). In any such event, upon the acceptance of its appointment as successor Agent
hereunder, such successor Agent shall succeed to all the rights, powers, and duties of the retiring
Agent and the term “Agent” shall mean such successor Agent and the retiring Agent’s appointment,
powers, and duties as Agent shall be terminated. After any retiring Agent’s resignation hereunder
as Agent, the provisions of this



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Section 15 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Agent under this Agreement. If no successor Agent has accepted appointment as
Agent by the date which is 30 days following a retiring Agent’s notice of resignation, the retiring
Agent’s resignation shall nevertheless thereupon become effective and the Required Lenders shall
perform all of the duties of Agent hereunder until such time, if any, as the Required Lenders
appoint a successor Agent as provided for above.




     15.10 Lender in Individual Capacity. Any Lender and its respective Affiliates may
make loans to, issue letters of credit for the account of, accept deposits from, provide Bank
Products to, acquire equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting, or other business with any Borrower and its Subsidiaries and
Affiliates and any other Person party to any Loan Documents as though such Lender were not a Lender
hereunder without notice to or consent of the other members of the Lender Group (or the Bank
Product Providers). The other members of the Lender Group acknowledge (and by entering into a Bank
Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, pursuant to
such activities, such Lender and its respective Affiliates may receive information regarding
Borrowers or their Affiliates or any other Person party to any Loan Documents that is subject to
confidentiality obligations in favor of Borrowers or such other Person and that prohibit the
disclosure of such information to Lenders, and Lenders acknowledge (and by entering into a Bank
Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, in such
circumstances (and in the absence of a waiver of such confidentiality obligations, which waiver
such Lender will use its reasonable best efforts to obtain), such Lender shall not be under any
obligation to provide such information to them.



     15.11 Collateral Matters.



          (a) Lenders hereby irrevocably authorize (and by entering into a Bank Product Agreement, each
Bank Product Provider shall be deemed to authorize) Agent to release any Lien on any Collateral (i)
upon the termination of the Revolver Commitments and payment and satisfaction in full of all of the
Obligations, (ii) constituting property being sold or disposed of if a release is required or
desirable in connection therewith and if Borrowers certify to Agent that the sale or disposition is
permitted under Section 6.4 (and Agent may rely conclusively on any such certificate,
without further inquiry), (iii) constituting property in which no Borrower and no Subsidiary of
Borrowers owned any interest at the time Agent’s Lien was granted nor at any time thereafter, or
(iv) constituting property leased to any Borrower or its Subsidiaries under a lease that has
expired or is terminated in a transaction permitted under this Agreement. The Loan Parties and
Lenders hereby irrevocably authorize (and by entering into a Bank Product Agreement, each Bank
Product Provider shall be deemed to authorize) Agent, based upon the instruction of the Required
Lenders, to credit bid and purchase (either directly or through one or more acquisition vehicles)
or to sell or otherwise dispose of (or to consent to any such sale or other disposition of) all or
any portion of the Collateral at any sale thereof conducted by Agent under the provisions of the
Code or the PPSA, including pursuant to Sections 9-610 or 9-620 of the Code, at any sale thereof
conducted under the provisions of the Bankruptcy Code, including Section 363 of the Bankruptcy Code
or pursuant to a plan of reorganization, or at any sale or foreclosure conducted by Agent (whether
by judicial action or otherwise) in accordance with applicable Law. Except as provided above,
Agent will not execute and deliver a release of any Lien on any Collateral without the prior
written authorization of (x) if the release is of all or





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substantially all of the Collateral, all of Lenders (without requiring the authorization of
the Bank Product Providers), or (y) otherwise, the Required Lenders (without requiring the
authorization of the Bank Product Providers). Upon request by Agent or any Borrower at any time,
Lenders will (and if so requested, the Bank Product Providers will) confirm in writing Agent’s
authority to release any such Liens on particular types or items of Collateral pursuant to this
Section 15.11; provided, however, that (1) Agent shall not be required to
execute any document necessary to evidence such release on terms that, in Agent’s opinion, would
expose Agent to liability or create any obligation or entail any consequence other than the release
of such Lien without recourse, representation, or warranty, and (2) such release shall not in any
manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being
released) upon (or obligations of any Borrower in respect of) all interests retained by any
Borrower, including, the proceeds of any sale, all of which shall continue to constitute part of
the Collateral. Lenders further hereby irrevocably authorize (and by entering into a Bank Product
Agreement, each Bank Product Provider shall be deemed to authorize) Agent, at its option and in its
sole discretion, to subordinate any Lien granted to or held by Agent under any Loan Document to the
holder of any Permitted Lien on such property if such Permitted Lien secures Permitted Purchase
Money Indebtedness or the Senior Notes (but only with respect to Senior Note Priority Collateral).




          (b) Agent shall have no obligation whatsoever to any of Lenders (or the Bank Product
Providers) to assure that the Collateral exists or is owned by a Borrower or a Borrower’s
Subsidiary or is cared for, protected, or insured or has been encumbered, or that Agent’s Liens
have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are
entitled to any particular priority, or that any particular items of Collateral meet the
eligibility criteria applicable in respect thereof or whether to impose, maintain, reduce, or
eliminate any particular reserve hereunder or whether the amount of any such reserve is appropriate
or not, or to exercise at all or in any particular manner or under any duty of care, disclosure or
fidelity, or to continue exercising, any of the rights, authorities and powers granted or available
to Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of
the Collateral, or any act, omission, or event related thereto, subject to the terms and conditions
contained herein, Agent may act in any manner it may deem appropriate, in its sole discretion given
Agent’s own interest in the Collateral in its capacity as one of Lenders and that Agent shall have
no other duty or liability whatsoever to any Lender (or Bank Product Provider) as to any of the
foregoing, except as otherwise provided herein.




     15.12 Restrictions on Actions by Lenders; Sharing of Payments.



          (a) Each of Lenders agrees that it shall not, without the express written consent of Agent,
and that it shall, to the extent it is lawfully entitled to do so, upon the written request of
Agent, set off against the Obligations, any amounts owing by such Lender to any Borrower or its
Subsidiaries or any deposit accounts of any Borrower or its Subsidiaries now or hereafter
maintained with such Lender. Each of Lenders further agrees that it shall not, unless specifically
requested to do so in writing by Agent, take or cause to be taken any action, including, the
commencement of any legal or equitable proceedings to enforce any Loan Document against any
Borrower or any Guarantor or to foreclose any Lien on, or otherwise enforce any security interest
in, any of the Collateral.




          (b) If, at any time or times any Lender shall receive (i) by payment, foreclosure, setoff, or
otherwise, any proceeds of Collateral or any payments with respect to the





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Obligations, except for any such proceeds or payments received by such Lender from Agent
pursuant to the terms of this Agreement, or (ii) payments from Agent in excess of such Lender’s Pro
Rata Share of all such distributions by Agent, such Lender promptly shall (A) turn the same over to
Agent, in kind, and with such endorsements as may be required to negotiate the same to Agent, or in
immediately available funds, as applicable, for the account of all of Lenders and for application
to the Obligations in accordance with the applicable provisions of this Agreement, or (B) purchase,
without recourse or warranty, an undivided interest and participation in the Obligations owed to
the other Lenders so that such excess payment received shall be applied ratably as among Lenders in
accordance with their Pro Rata Shares; provided, however, that to the extent that
such excess payment received by the purchasing party is thereafter recovered from it, those
purchases of participations shall be rescinded in whole or in part, as applicable, and the
applicable portion of the purchase price paid therefor shall be returned to such purchasing party,
but without interest except to the extent that such purchasing party is required to pay interest in
connection with the recovery of the excess payment.




     15.13 Agency for Perfection. Agent hereby appoints each other Lender (and each Bank
Product Provider) as its agent (and each Lender hereby accepts (and by entering into a Bank Product
Agreement, each Bank Product Provider shall be deemed to accept) such appointment) for the purpose
of perfecting Agent’s Liens in assets which, in accordance with Article 8 or Article 9, as
applicable, of the Code or in accordance with the PPSA can be perfected by possession or control.
Should any Lender obtain possession or control of any such Collateral, such Lender shall notify
Agent thereof, and, promptly upon Agent’s request therefor shall deliver possession or control of
such Collateral to Agent or in accordance with Agent’s instructions.



     15.14 Payments by Agent to Lenders. All payments to be made by Agent to Lenders (or
Bank Product Providers) shall be made by bank wire transfer of immediately available funds pursuant
to such wire transfer instructions as each party may designate for itself by written notice to
Agent. Concurrently with each such payment, Agent shall identify whether such payment (or any
portion thereof) represents principal, premium, fees, or interest of the Obligations.



     15.15 Concerning the Collateral and Related Loan Documents. Each member of the Lender
Group authorizes and directs Agent to enter into this Agreement and the other Loan Documents. Each
member of the Lender Group agrees (and by entering into a Bank Product Agreement, each Bank Product
Provider shall be deemed to agree) that any action taken by Agent in accordance with the terms of
this Agreement or the other Loan Documents relating to the Collateral and the exercise by Agent of
its powers set forth therein or herein, together with such other powers that are reasonably
incidental thereto, shall be binding upon all of Lenders (and such Bank Product Provider). Agent
is authorized by the Lenders, without necessity of any notice to or further consent from any
Lender, from time to time, to take any action with respect to any Collateral or Loan Documents
which may be necessary to perfect and maintain perfected the security interest in and liens upon
Collateral pursuant to the Loan Documents.



     15.16 Audits and Examination Reports; Confidentiality; Disclaimers by Lenders; Other
Reports and Information. By becoming a party to this Agreement, each Lender:



          (a) is deemed to have requested that Agent furnish such Lender, promptly after it becomes
available, a copy of each field audit or examination report respecting any





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Borrower or its Subsidiaries (each, a “Report”) prepared by or at the request of
Agent, and Agent shall so furnish each Lender with such Reports,




          (b) expressly agrees and acknowledges that Agent does not (i) make any representation or
warranty as to the accuracy of any Report, and (ii) shall not be liable for any information
contained in any Report,




          (c) expressly agrees and acknowledges that the Reports are not comprehensive audits or
examinations, that Agent or other party performing any audit or examination will inspect only
specific information regarding a Borrower and its Subsidiaries and will rely significantly upon
each Borrower’s and its Subsidiaries’ books and records, as well as on representations of each
Borrower’s personnel,




          (d) agrees to keep all Reports and other material, non-public information regarding each
Borrower and its Subsidiaries and their operations, assets, and existing and contemplated business
plans in a confidential manner in accordance with Section 17.9,




          (e) without limiting the generality of any other indemnification provision contained in this
Agreement, agrees: (i) to hold Agent and any other Lender preparing a Report harmless from any
action the indemnifying Lender may take or fail to take or any conclusion the indemnifying Lender
may reach or draw from any Report in connection with any loans or other credit accommodations that
the indemnifying Lender has made or may make to Borrowers, or the indemnifying Lender’s
participation in, or the indemnifying Lender’s purchase of, a loan or loans of Borrowers, and (ii)
to pay and protect, and indemnify, defend and hold Agent, and any such other Lender preparing a
Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and
other amounts (including, attorneys fees and costs) incurred by Agent and any such other Lender
preparing a Report as the direct or indirect result of any third parties who might obtain all or
part of any Report through the indemnifying Lender, and




          (f) agrees to supply the Agent with any information required by the Agent in order to
calculate the Mandatory Cost.



In addition to the foregoing: (x) any Lender may from time to time request of Agent in writing
that Agent provide to such Lender a copy of any report or document provided by any Borrower or any
Subsidiary of any Borrower to Agent that has not been contemporaneously provided by any Borrower or
its Subsidiaries to such Lender, and, upon receipt of such request, Agent promptly shall provide a
copy of same to such Lender, (y) to the extent that Agent is entitled, under any provision of the
Loan Documents, to request additional reports or information from any Borrower or its Subsidiaries,
any Lender may, from time to time, reasonably request Agent to exercise such right as specified in
such Lender’s notice to Agent, whereupon Agent promptly shall request of such Borrower the
additional reports or information reasonably specified by such Lender, and, upon receipt thereof
from such Borrower or its Subsidiaries, Agent promptly shall provide a copy of same to such Lender,
and (z) any time that Agent renders to any Borrower a statement regarding the Loan Account, Agent
shall send a copy of such statement to each Lender.






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     15.17 Several Obligations; No Liability. Notwithstanding that certain of the Loan
Documents now or hereafter may have been or will be executed only by or in favor of Agent in its
capacity as such, and not by or in favor of Lenders, any and all obligations on the part of Agent
(if any) to make any credit available hereunder shall constitute the several (and not joint)
obligations of the respective Lenders on a ratable basis, according to their respective Revolver
Commitments, to make an amount of such credit not to exceed, in principal amount, at any one time
outstanding, the amount of their respective Revolver Commitments. Nothing contained herein shall
confer upon any Lender any interest in, or subject any Lender to any liability for, or in respect
of, the business, assets, profits, losses, or liabilities of any other Lender. Each Lender shall
be solely responsible for notifying its Participants of any matters relating to the Loan Documents
to the extent any such notice may be required, and no Lender shall have any obligation, duty, or
liability to any Participant of any other Lender. Except as provided in Section 15.7, no
member of the Lender Group shall have any liability for the acts of any other member of the Lender
Group. No Lender shall be responsible to any Borrower or any other Person for any failure by any
other Lender (or Bank Product Provider) to fulfill its obligations to make credit available
hereunder, nor to advance for such Lender (or Bank Product Provider) or on its behalf, nor to take
any other action on behalf of such Lender (or Bank Product Provider) hereunder or in connection
with the financing contemplated herein.



     15.18 Intercreditor Agreement. Each Lender (a) consents to the subordination of Liens
provided for in the Intercreditor Agreement, (b) agrees that it will be bound by, and will take no
actions contrary to, the provisions of the Intercreditor Agreement, (c) authorizes and instructs
Agent to enter into the Intercreditor Agreement as Agent on behalf of such holder of Obligations
and (d) acknowledges (or is deemed to acknowledge) that a copy of the Intercreditor Agreement was
delivered, or made available, to such Lender and that such Lender reviewed the Intercreditor
Agreement.



16. WITHHOLDING TAXES.




          (a) All payments made by any Borrower hereunder or under any note or other Loan Document will
be made without setoff, counterclaim, or other defense. In addition, all such payments will be
made free and clear of, and without deduction or withholding for, any present or future Taxes, and
in the event any deduction or withholding of Taxes is required, Borrowers shall comply with the
next sentence of this Section 16(a). If any Taxes are so levied or imposed, Borrowers
agree to pay the full amount of such Taxes and such additional amounts as may be necessary so that
every payment of all amounts due under this Agreement, any note, or Loan Document, including any
amount paid pursuant to this Section 16(a) after withholding or deduction for or on account
of any Taxes, will not be less than the amount provided for herein; provided, however, that
Borrowers shall not be required to increase any such amounts if the increase in such amount payable
results from Agent’s or such Lender’s own willful misconduct or gross negligence or for breach in
bad faith of such Person’s obligations hereunder or under any other Loan Document (as finally
determined by a court of competent jurisdiction). Borrowers will furnish to Agent as promptly as
possible after the date the payment of any Tax is due pursuant to applicable Law, certified copies
of tax receipts evidencing such payment by Borrowers.




          (b) Borrowers agree to pay any present or future stamp, value added or documentary taxes or
any other excise or property taxes, charges, or similar levies that arise from





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any payment made hereunder or from the execution, delivery, performance, recordation, or
filing of, or otherwise with respect to this Agreement or any other Loan Document.




          (c) If a Lender or Participant (or, in either case, any assignee thereof) is entitled to claim
an exemption or reduction from United States withholding tax, such Lender or Participant agrees
with and in favor of Agent, to deliver to Agent and the Company (or, in the case of a Participant,
to the Lender granting the participation only) one of the following before receiving its first
payment under this Agreement:




               (i) if a Foreign Lender or Participant is entitled to claim an exemption from United States
withholding tax pursuant to the portfolio interest exception, (A) a statement of the Lender or
Participant, signed under penalty of perjury, that it is not a (I) a “bank” as described in Section
881(c)(3)(A) of the IRC, (II) a 10% shareholder of any Borrower (within the meaning of Section
871(h)(3)(B) of the IRC), or (III) a controlled foreign corporation related to any Borrower within
the meaning of Section 864(d)(4) of the IRC (a “Portfolio Exemption Statement”), and (B) a
properly completed and executed Internal Revenue Service Form W-8BEN or Form W-8IMY (with proper
attachments);



               (ii) if a Foreign Lender or Participant is entitled to claim an exemption from, or a reduction
of, withholding tax under a United States tax treaty, a properly completed and executed copy of
Internal Revenue Service Form W-8BEN;



               (iii) if a Foreign Lender or Participant is entitled to claim that interest paid under this
Agreement is exempt from United States withholding tax because it is effectively connected with a
United States trade or business of such Lender, a properly completed and executed copy of Internal
Revenue Service Form W-8ECI;



               (iv) to the extent that a Foreign Lender or Participant is not the beneficial owner
(including, for this purpose, a foreign partnership), executed originals of Internal Revenue
Service Form W-81MY, accompanied by a Form W-8ECI, W-8BEN, Portfolio Exemption Statement, Form W-9,
and/or other certification documents from each beneficial owner, as applicable in each case showing
a complete exemption or reduction by the beneficial owner from U.S. withholding tax; or



               (v) a properly completed and executed copy of any other form or forms, including Internal
Revenue Service Form W-9, as may be required under the IRC or other Laws of the United States as a
condition to exemption from, or reduction of, United States withholding or backup withholding tax.


Each Lender or Participant shall provide new forms (or successor forms) upon the expiration or
obsolescence of any previously delivered forms and to promptly notify Agent (or, in the case of a
Participant, to the Lender granting the participation only) of any change in circumstances which
would modify or render invalid any claimed exemption or reduction. In addition, any Lender if
requested by the Borrower or Agent shall deliver such other documentation prescribed by applicable
law or reasonably requested by the Borrower or Agent as will enable the Borrower or Agent to
determine whether such Lender is subject to backup or other withholding or other information
reporting requirements.







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If a payment made to a Lender under any Loan Document would be subject to U.S. Federal withholding
tax imposed by FATCA if such Lender fails to comply with the applicable reporting requirements of
FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such
Lender shall deliver to Agent and the Company (A) a certification signed by the chief financial
officer, principal accounting officer, treasurer or controller, and (B) other documentation
reasonably requested by Agent and the Company sufficient for Agent and the Company to comply with
their obligations under FATCA and to determine that such Lender has complied with such applicable
reporting requirements.




          (d) If a Lender or Participant (or, in either case, any assignee thereof) is entitled to claim
an exemption from, or reduction of, withholding tax in a jurisdiction other than the United States,
such Lender or such Participant agrees with and in favor of Agent, to deliver to Agent (or, in the
case of a Participant, to the Lender granting the participation only) any such form or forms
properly completed and executed, as may be required under the Laws of such jurisdiction as a
condition to exemption from, or reduction of, foreign withholding or backup withholding tax before
receiving its first payment under this Agreement, but only if such Lender or such Participant is
legally able to deliver such forms, provided, however, that nothing in this
Section 16(d) shall require a Lender or Participant to disclose any information (i) that
would not otherwise be required by any applicable Law as a condition to exemption from, or
reduction of, the withholding or backup withholding tax under such Law and (ii) that it deems to be
confidential (including without limitation, its tax returns). Each Lender and each Participant
shall provide new forms (or successor forms) upon the expiration or obsolescence of any previously
delivered forms and to promptly notify Agent (or, in the case of a Participant, to the Lender
granting the participation only) of any change in circumstances which would modify or render
invalid any claimed exemption or reduction. In addition, any Lender if requested by the Borrower
or Agent shall deliver such other documentation prescribed by applicable law or reasonably
requested by the Borrower or Agent as will enable the Borrower or Agent to determine whether such
Lender is subject to backup or other withholding or other information reporting requirements.




          (e) [Reserved].




          (f) If a Lender or Participant claims exemption from, or reduction of, withholding tax and
such Lender or Participant sells, assigns, grants a participation in, or otherwise transfers all or
part of the Obligations of Borrowers to such Lender or Participant, such Lender or Participant
agrees to notify Agent (or, in the case of a sale of a participation interest, to the Lender
granting the participation only) of the percentage amount in which it is no longer the beneficial
owner of Obligations of Borrowers to such Lender or Participant. To the extent of such percentage
amount, Agent will treat such Lender’s or such Participant’s documentation provided pursuant to
Section 16(c) or 16(d) as no longer valid. With respect to such percentage amount,
such Participant or Assignee may provide new documentation, pursuant to Section 16(c) or
16(d), if applicable. Each Borrower agrees that each Participant shall be entitled to the
benefits of this Section 16 with respect to its participation in any portion of the
Revolver Commitments and the Obligations so long as such Participant complies with the obligations
set forth in this Section 16 with respect thereto.




          (g) If a Lender or a Participant is entitled to a reduction in the applicable withholding tax,
Agent (or, in the case of a Participant, to the Lender granting the participation)





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may withhold from any interest payment to such Lender or such Participant an amount equivalent
to the applicable withholding tax after taking into account such reduction. If the forms or other
documentation required by Section 16(c) or 16(d) are not delivered to Agent (or, in
the case of a Participant, to the Lender granting the participation), then Agent (or, in the case
of a Participant, to the Lender granting the participation) may withhold from any interest payment
to such Lender or such Participant not providing such forms or other documentation an amount
equivalent to the applicable withholding tax.




          (h) If the Internal Revenue Service or any other Governmental Authority of the United States
or other jurisdiction asserts a claim that Agent (or, in the case of a Participant, to the Lender
granting the participation) did not properly withhold tax from amounts paid to or for the account
of any Lender or any Participant due to a failure on the part of the Lender or any Participant
(because the appropriate form was not delivered, was not properly executed, or because such Lender
failed to notify Agent (or such Participant failed to notify the Lender granting the participation)
of a change in circumstances which rendered the exemption from, or reduction of, withholding tax
ineffective, or for any other reason) such Lender shall indemnify and hold Agent harmless (or, in
the case of a Participant, such Participant shall indemnify and hold the Lender granting the
participation harmless) for all amounts paid, directly or indirectly, by Agent (or, in the case of
a Participant, to the Lender granting the participation), as tax or otherwise, including penalties
and interest, and including any taxes imposed by any jurisdiction on the amounts payable to Agent
(or, in the case of a Participant, to the Lender granting the participation only) under this
Section 16, together with all costs and expenses (including attorneys fees and expenses).
The obligation of Lenders and the Participants under this subsection shall survive the payment of
all Obligations and the resignation or replacement of Agent.




          (i) If Agent or a Lender determines, in its sole discretion, that it has received a refund of
any Taxes as to which it has been indemnified by Borrowers or with respect to which Borrowers have
paid additional amounts pursuant to this Section 16, so long as no Default or Event of
Default has occurred and is continuing, it shall pay over such refund to Borrowers (but only to the
extent of payments made, or additional amounts paid, by Borrowers under this Section 16
with respect to Taxes giving rise to such a refund), net of all out-of-pocket expenses of Agent or
such Lender and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such a refund); provided, that Borrowers, upon the request of Agent or
such Lender, agree to repay the amount paid over to Borrowers (plus any penalties, interest or
other charges, imposed by the relevant Governmental Authority, other than such penalties, interest
or other charges imposed as a result of the willful misconduct or gross negligence of Agent
hereunder or for breach in bad faith of Agent’s obligations hereunder or under any other Loan
Document (in each case, as a finally determined by a court of competent jurisdiction)) to Agent or
such Lender in the event Agent or such Lender is required to repay such refund to such Governmental
Authority. Notwithstanding anything in this Agreement to the contrary, this Section 16
shall not be construed to require Agent or any Lender to make available its tax returns (or any
other information which it deems confidential) to any Borrower or any other Person.






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17. GENERAL PROVISIONS.




     17.1 Effectiveness. This Agreement shall be binding and deemed effective when
executed by each Borrower, Agent, and each Lender whose signature is provided for on the signature
pages hereof.



     17.2 Section Headings. Headings and numbers have been set forth herein for
convenience only. Unless the contrary is compelled by the context, everything contained in each
Section applies equally to this entire Agreement.



     17.3 Interpretation. Neither this Agreement nor any uncertainty or ambiguity herein
shall be construed against the Lender Group or any Borrower, whether under any rule of construction
or otherwise. On the contrary, this Agreement has been reviewed by all parties and shall be
construed and interpreted according to the ordinary meaning of the words used so as to accomplish
fairly the purposes and intentions of all parties hereto.



     17.4 Severability of Provisions. Each provision of this Agreement shall be severable
from every other provision of this Agreement for the purpose of determining the legal
enforceability of any specific provision.



     17.5 Bank Product Providers. Each Bank Product Provider shall be deemed a third party
beneficiary hereof and of the provisions of the other Loan Documents for purposes of any reference
in a Loan Document to the parties for whom Agent is acting. Agent hereby agrees to act as agent
for such Bank Product Providers and, by virtue of entering into a Bank Product Agreement, the
applicable Bank Product Provider shall be automatically deemed to have appointed Agent as its agent
and to have accepted the benefits of the Loan Documents; it being understood and agreed that the
rights and benefits of each Bank Product Provider under the Loan Documents consist exclusively of
such Bank Product Provider’s being a beneficiary of the Liens and security interests (and, if
applicable, guarantees) granted to Agent and the right to share in payments and collections out of
the Collateral as more fully set forth herein. In addition, each Bank Product Provider, by virtue
of entering into a Bank Product Agreement, shall be automatically deemed to have agreed that Agent
shall have the right, but shall have no obligation, to establish, maintain, relax, or release
reserves in respect of the Bank Product Obligations and that if reserves are established there is
no obligation on the part of Agent to determine or insure whether the amount of any such reserve is
appropriate or not. In connection with any such distribution of payments or proceeds of
Collateral, Agent shall be entitled to assume no amounts are due or owing to any Bank Product
Provider unless such Bank Product Provider has provided a written certification (setting forth a
reasonably detailed calculation) to Agent as to the amounts that are due and owing to it and such
written certification is received by Agent a reasonable period of time prior to the making of such
distribution. Agent shall have no obligation to calculate the amount due and payable with respect
to any Bank Products, but may rely upon the written certification of the amount due and payable
from the relevant Bank Product Provider. In the absence of an updated certification, Agent shall
be entitled to assume that the amount due and payable to the relevant Bank Product Provider is the
amount last certified to Agent by such Bank Product Provider as being due and payable (less any
distributions made to such Bank Product Provider on account thereof). Any Borrower may obtain Bank
Products from any Bank Product Provider, although no Borrower is required to do so. Each Borrower
acknowledges and agrees that no Bank Product Provider has committed to provide any Bank



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Products and that the providing of Bank Products by any Bank Product Provider is in the sole
and absolute discretion of such Bank Product Provider. Notwithstanding anything to the contrary in
this Agreement or any other Loan Document, no provider or holder of any Bank Product shall have any
voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the
provider or holder of such agreements or products or the Obligations owing thereunder, nor shall
the consent of any such provider or holder be required (other than in their capacities as Lenders,
to the extent applicable) for any matter hereunder or under any of the other Loan Documents,
including as to any matter relating to the Collateral or the release of Collateral or Guarantors.




     17.6 Debtor-Creditor Relationship. The relationship between Lenders and Agent, on the
one hand, and the Loan Parties, on the other hand, is solely that of creditor and debtor. No
member of the Lender Group has (or shall be deemed to have) any fiduciary relationship or duty to
any Loan Party arising out of or in connection with the Loan Documents or the Transactions or any
transactions contemplated thereby, and there is no agency or joint venture relationship between the
members of the Lender Group, on the one hand, and the Loan Parties, on the other hand, by virtue of
any Loan Document or any transaction contemplated therein.



     17.7 Counterparts; Electronic Execution. This Agreement may be executed in any number
of counterparts and by different parties on separate counterparts, each of which, when executed and
delivered, shall be deemed to be an original, and all of which, when taken together, shall
constitute but one and the same Agreement. Delivery of an executed counterpart of this Agreement
by facsimile or other electronic method of transmission shall be equally as effective as delivery
of an original executed counterpart of this Agreement. Any party delivering an executed
counterpart of this Agreement by facsimile or other electronic method of transmission also shall
deliver an original executed counterpart of this Agreement but the failure to deliver an original
executed counterpart shall not affect the validity, enforceability, and binding effect of this
Agreement. The foregoing shall apply to each other Loan Document mutatis mutandis.



     17.8 Revival and Reinstatement of Obligations. If the incurrence or payment of the
Obligations by any Borrower or Guarantor or the transfer to the Lender Group of any property should
for any reason subsequently be asserted, or declared, to be void or voidable under any state or
federal Law relating to creditors’ rights, including provisions of the Bankruptcy Code or the
Bankruptcy Insolvency Act (Canada) relating to fraudulent conveyances, preferences, or other
voidable or recoverable payments of money or transfers of property (each, a “Voidable
Transfer”), and if the Lender Group is required to repay or restore, in whole or in part, any
such Voidable Transfer, or elects to do so upon the reasonable advice of its counsel, then, as to
any such Voidable Transfer, or the amount thereof that the Lender Group is required or elects to
repay or restore, and as to all reasonable costs, expenses, and attorneys fees of the Lender Group
related thereto, the liability of Borrowers or Guarantors automatically shall be revived,
reinstated, and restored and shall exist as though such Voidable Transfer had never been made.



     17.9 Confidentiality.



          (a) Agent and Lenders each individually (and not jointly or jointly and severally) agree that
material, non-public information regarding Borrowers and their Subsidiaries, their operations,
assets, and existing and contemplated business plans (“Confidential Information”) shall be
treated by Agent and Lenders in a confidential manner, and





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shall not be disclosed by Agent and Lenders to Persons who are not parties to this Agreement,
except: (i) to attorneys for and other advisors, accountants, auditors, and consultants to any
member of the Lender Group and to employees, directors and officers of any member of the Lender
Group (the Persons in this clause (i), “Lender Group Representatives”) on a “need to know”
basis in connection with this Agreement and the Transactions or any transactions contemplated
hereby and on a confidential basis, (ii) to Subsidiaries and Affiliates of any member of the Lender
Group (including the Bank Product Providers), provided that any such Subsidiary or Affiliate shall
have agreed to receive such information hereunder subject to the terms of this Section
17.9, (iii) as may be requested by regulatory authorities purporting to have jurisdiction over
it (including any self-regulatory authority, such as the National Association of Insurance
Commissioners), (iv) as may be required by statute, decision, or judicial or administrative order,
rule, or regulation; provided that (x) prior to any disclosure under this clause (iv), the
disclosing party agrees to provide Borrowers with prior notice thereof, to the extent that it is
practicable to do so and to the extent that the disclosing party is permitted to provide such prior
notice to Borrowers pursuant to the terms of the applicable statute, decision, or judicial or
administrative order, rule, or regulation and (y) any disclosure under this clause (iv) shall be
limited to the portion of the Confidential Information as may be required by such statute,
decision, or judicial or administrative order, rule, or regulation, (v) as may be agreed to in
advance in writing by Borrowers, (vi) as requested or required by any Governmental Authority
pursuant to any subpoena or other legal process, provided, that, (x) prior to any
disclosure under this clause (vi) the disclosing party agrees to provide Borrowers with prior
written notice thereof, to the extent that it is practicable to do so and to the extent that the
disclosing party is permitted to provide such prior written notice to Borrowers pursuant to the
terms of the subpoena or other legal process and (y) any disclosure under this clause (vi) shall be
limited to the portion of the Confidential Information as may be required by such Governmental
Authority pursuant to such subpoena or other legal process, (vii) as to any such information that
is or becomes generally available to the public (other than as a result of prohibited disclosure by
Agent or Lenders or the Lender Group Representatives and other than with respect to information
which is known to any such Person as having been wrongfully disclosed), (viii) in connection with
any assignment, participation or pledge of any Lender’s interest under this Agreement, provided
that prior to receipt of Confidential Information any such assignee, participant, or pledgee shall
have agreed in writing to receive such Confidential Information hereunder subject to the terms of
this Section, (ix) in connection with any litigation or other adversary proceeding involving
parties hereto which such litigation or adversary proceeding involves claims related to the rights
or duties of such parties under this Agreement or the other Loan Documents; provided, that, prior
to any disclosure to any Person (other than any Loan Party, Agent, any Lender, any of their
respective Affiliates, or their respective counsel) under this clause (ix) with respect to
litigation involving any Person (other than any Borrower, Agent, any Lender, any of their
respective Affiliates, or their respective counsel), the disclosing party agrees to provide
Borrowers with prior written notice thereof, (x) in connection with, and to the extent reasonably
necessary for, the exercise of any secured credit
or remedy under this Agreement or under any other
Loan Document, and (xi) in relation to a security interest for the purposes of the Personal
Property Securities Act 2009 (Cwlth), as required to (x) ensure that the security interest is
enforceable, perfected and otherwise effective or (y) enable the Agent to apply for any
registration, or give notification, in connection with the security interest so that the security
interest has the priority required by the Agent or (z) enable the Agent to exercise its rights in
connection with the security interest.






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          (b) Anything in this Agreement to the contrary notwithstanding, Agent may (i) provide
information concerning the terms and conditions of this Agreement and the other Loan Documents to
loan syndication and pricing reporting services, and (ii) use the name, logos, and other insignia
of Borrowers and Loan Parties and the Revolver Commitments provided hereunder in any “tombstone” or
comparable advertising, on its website or in other marketing materials of Agent.




     17.10 Lender Group Expenses. Borrowers agree to pay any and all Lender Group Expenses
on the earlier of (a) the first day of each month or (b) the date on which demand therefor is made
by Agent and agrees that its obligations contained in this Section 17.10 shall survive
payment or satisfaction in full of all other Obligations. For the avoidance of doubt, the
obligations of the Borrowers under this Section 17.10 and all other provisions in any of
the other Loan Documents with respect to costs and expenses owing by the Company or any of its
Subsidiaries are subject in all respects to the limitations set forth in Section 2.14(a).



     17.11 Survival. All representations and warranties made by the Loan Parties in the
Loan Documents and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon
by the other parties hereto and shall survive the execution and delivery of the Loan Documents 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 Agent, the Issuing Lender, or any
Lender may have had notice or knowledge of any Default or Event of Default or incorrect
representation or warranty at the time any credit is extended hereunder, and shall continue in full
force and effect as long as the principal of or any accrued interest on any loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Revolver Commitments have not expired or terminated.



     17.12 Patriot Act. Each Lender that is subject to the requirements of the Patriot Act
hereby notifies Borrowers that pursuant to the requirements of the Act, it is required to obtain,
verify and record information that identifies each Borrower, which information includes the name
and address of each Borrower and other information that will allow such Lender to identify each
Borrower in accordance with the Patriot Act.



     17.13 Canadian Anti-Money Laundering & Anti-Terrorism Compliance. The Lenders may be
subject to Canadian Anti-Money Laundering & Anti-Terrorism Legislation and “know your customer”
rules and regulations, and they hereby notify the Borrowers and Guarantors that in order to comply
with such legislation, rules and regulations, they may be, among other things, required to obtain,
verify and record information pertaining to the Borrowers and Guarantors, which information may
relate to, among other things, the names, addresses, corporate directors, corporate registration
numbers, corporate tax numbers, corporate shareholders and banking transactions of the Borrowers.
The Borrowers hereby agree to take such actions and to provide, upon request, such information and
access to information regarding the Borrowers and Guarantors that is required to enable the Lender
to comply with such Canadian Anti-Money Laundering & Anti-Terrorism Legislation and “know your
customer” rules and regulations.



96









 





     17.14 Integration. This Agreement, together with the other Loan Documents, reflects
the entire understanding of the parties with respect to the Transactions or any transactions
contemplated hereby and shall not be contradicted or qualified by any other agreement, oral or
written, before the date hereof. The foregoing to the contrary notwithstanding, all Bank Product
Agreements, if any, are independent agreements governed by the written provisions of such Bank
Product Agreements, which will remain in full force and effect, unaffected by any repayment,
prepayments, acceleration, reduction, increase, or change in the terms of any credit extended
hereunder, except as otherwise expressly provided in such Bank Product Agreement.



     17.15 The Company as Agent for Borrowers. Each Borrower hereby irrevocably appoints
the Company as the borrowing agent and attorney-in-fact for each Borrower for the purposes of each
Loan Document, which appointment shall remain in full force and effect unless and until Agent shall
have received prior written notice signed by each Borrower that such appointment has been revoked
and that another Borrower has been appointed as the borrowing agent and attorney-in-fact. Each
Borrower hereby irrevocably appoints and authorizes the Company (a) to provide Agent with all
notices with respect to Advances and Letters of Credit obtained for the benefit of any Borrower and
all other notices and instructions under this Agreement, and (b) to take such action as the Company
deems appropriate on its behalf to obtain Advances and Letters of Credit and to exercise such other
powers as are reasonably incidental thereto to carry out the purposes of this Agreement. It is
understood that the handling of the Loan Account and Collateral in a combined fashion, as more
fully set forth herein, is done solely as an accommodation to Borrowers in order to utilize the
collective borrowing powers of Borrowers in the most efficient and economical manner and at their
request, and that Lender Group shall not incur liability to any Borrower as a result hereof. Each
Borrower expects to derive benefit, directly or indirectly, from the handling of the Loan Account
and the Collateral in a combined fashion since the successful operation of each Borrower is
dependent on the continued successful performance of the integrated group. To induce the Lender
Group to do so, and in consideration thereof, each Borrower hereby jointly and severally agrees to
indemnify each member of the Lender Group and hold each member of the Lender Group harmless against
any and all liability, expense, loss or claim of damage or injury, made against the Lender Group by
any Borrower or by any third party whosoever, arising from or incurred by reason of (a) the
handling of the Loan Account and Collateral of Borrowers as herein provided, or (b) the Lender
Group’s relying on any instructions of the Company, except that Borrowers will have no liability to
the relevant Agent-Related Person or Lender-Related Person under this Section 17.15 with
respect to any liability that (i) a court of competent jurisdiction finally determines to have
resulted from the gross negligence or willful misconduct of such Indemnified Person or (ii) result
from a claim brought by the Company or any other Loan Party against such Agent-Related Person or
Lender-Related Person for breach in bad faith of such Agent-Related Person’s or Lender-Related
Person’s obligations hereunder or under any other Loan Document, if the Company or such other Loan
Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a
court of competent jurisdiction.



     17.16 Judgment Currency. If, for the purposes of obtaining judgment in any court, it
is necessary to convert a sum due hereunder or any other Loan Document in one currency into another
currency, the rate of exchange used shall be that at which in accordance with normal banking
procedures Agent could purchase the first currency with such other currency on the Business Day
preceding that on which final judgment is given. The obligation of each Borrower



97









 




in respect of any such sum due from it to Agent or any Lender hereunder or under the other
Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment Currency”)
other than that in which such sum is denominated in accordance with the applicable provisions of
this Agreement (the “Agreement Currency”), be discharged only to the extent that on the
Business Day following receipt by Agent or such Lender, as the case may be, of any sum adjudged to
be so due in the Judgment Currency, Agent or such Lender, as the case may be, may in accordance
with normal banking procedures 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 Agent or any
Lender from any Borrower in the Agreement Currency, such Borrower agrees, as a separate obligation
and notwithstanding any such judgment, to indemnify Agent or such Lender, as the case may be,
against such loss. If the amount of the Agreement Currency so purchased is greater than the sum
originally due to Agent or any Lender in such currency, Agent or such Lender, as the case may be,
agrees to return the amount of any excess to such Borrower (or to any other Person who may be
entitled thereto under applicable Law)




     17.17 Conflicts with other Loan Documents. In the event there is a conflict or
inconsistency between this Agreement and any other Loan Document, the terms of this Agreement shall
control; provided that any provision of the Security Documents which imposes additional
burdens on the Borrowers or any of its Subsidiaries or further restricts the rights of the
Borrowers or any of its Subsidiaries or gives the Administrative Agent or Lenders additional
rights, in each case, with respect to the Collateral, shall not be deemed to be in conflict or
inconsistent with this Agreement and shall be given full force and effect.



     17.18 Special Provisions Regarding Pledges of Stock and Promissory Notes in Non-Qualified
Jurisdictions. The parties hereto acknowledge and agree that the provisions of this Agreement
and the various Security Documents executed and delivered by the Loan Parties and Pledgors require
that, among other things, certain Stock and promissory notes be pledged pursuant to the Security
Documents. The parties hereto further acknowledge and agree that, to the extent provided in the
applicable Security Documents, each Loan Party and each Pledgor shall be required to take all
actions under the laws of each Qualified Jurisdiction or each Pledgor’s jurisdiction of
organization to perfect the security interests in the Stock and promissory notes issued by any
Person organized under the laws of such Qualified Jurisdiction or such Pledgor’s jurisdiction of
organization to the extent required by the applicable Security Documents or deemed necessary or
required by Agent based on advice of local counsel. Except as provided in the immediately
preceding sentence, to the extent any Security Document requires or provides for the pledge of
Stock or promissory notes issued by any Person organized under the laws of a jurisdiction other
than a Qualified Jurisdiction or a Pledgor’s jurisdiction of organization, it is acknowledged that
no actions have been or (unless an Event of Default shall have occurred and be continuing and the
Agent shall deem such actions to be reasonably prudent under the circumstances, in its Permitted
Discretion) shall be required to be taken to perfect, under local law of the jurisdiction of the
Person who issued such Stock or promissory notes, under the Security Documents.



[Signature pages to follow.]







98









 








          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered
as of the date first above written.




	 	 	 	 	 
	 	EXIDE TECHNOLOGIES

a Delaware corporation

 	 
	 	By:  	/s/  Brad S. Kalter	 
	 	 	Name  Brad S. Kalter	 
	 	 	Title:   	Vice President,
Deputy General Counsel
and Corporate Secretary 	 
	 
	 	EXIDE GLOBAL HOLDING NETHERLANDS C.V.

a limited partnership organized and existing under the laws of the
Netherlands

 	 
	 	By:  	/s/  Brad S. Kalter	 
	 	 	Name  Brad S. Kalter	 
	 	 	Title:   	Vice President,
Deputy General Counsel
and Corporate Secretary 	 
	 



Exide Technologies

Credit Agreement









 









 








	 	 	 	 	 
	 	WELLS FARGO CAPITAL FINANCE, LLC,

as Agent and as a Lender

 	 
	 	By:  	/s/  Samantha Alexander	 
	 	 	Name  Samantha Alexander	 
	 	 	Title:    Director	 	 
	 
	 	WELLS FARGO BANK, N.A. (LONDON BRANCH),

as a Lender

 	 
	 	By:  	/s/  Gillian White	 
	 	 	Name  Gillian White	 
	 	 	Title:    Vice President	 
	 



Exide Technologies

Credit Agreement





 











 








	 	 	 	 	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH,

as a Lender

 	 
	 	By:  	/s/  Enrique Landaeta	 
	 	 	Name  Enrique Landaeta	 
	 	 	Title:    Vice President	 
	 
	 	By:  	/s/  Erin Morrissey	 
	 	 	Name  Erin Morrissey	 
	 	 	Title:    Vice President	 
	 



Exide Technologies

Credit Agreement





 











 







	 	 	 	 	 
	 	SUNTRUST BANK,

as a Lender

 	 
	 	By:  	/s/  Chris Waterstreet	 
	 	 	Name  Chris Waterstreet	 
	 	 	Title:    Vice President	 
	 



Exide Technologies

Credit Agreement





 








 







	 	 	 	 	 
	 	RB INTERNATIONAL FINANCE (USA) LLC,

as a Lender

 	 
	 	By:  	/s/  Christoph Hoedl	 
	 	 	Name  Christoph Hoedl	 
	 	 	Title:    First Vice President	 
	 
	 	By:  	/s/  Randall Abrams	 
	 	 	Name  Randall Abrams	 
	 	 	Title:    Vice President	 
	 



Exide Technologies

Credit Agreement





 








 







	 	 	 	 	 
	 	BARCLAYS BANK PLC,

as a Lender

 	 
	 	By:  	/s/  Craig Malloy	 
	 	 	Name  Craig Malloy	 
	 	 	Title:    Director	 	 
	 



Exide Technologies

Credit Agreement





 








 







	 	 	 	 	 
	 	MORGAN STANLEY BANK, N.A.,

as a Lender

 	 
	 	By:  	/s/  Lisa Hanson	 
	 	 	Name  Lisa Hanson	 
	 	 	Title:    Authorized Signatory	 
	 



Exide Technologies

Credit Agreement





 








 





SCHEDULE 1.1




Definitions


As used in the Agreement, the following terms shall have the following definitions:




          “ABL Priority Collateral” has the meaning specified therefor in the Intercreditor
Agreement.




          “Account” means an account (as that term is defined in the Code).




          “Account Debtor” means any Person who is obligated on an Account, chattel paper, or a
general intangible.




          “Accounting Changes” means changes in accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants (or successor thereto or
any agency with similar functions).




          “Acquired Indebtedness” means Indebtedness of a Person whose assets or Stock is
acquired by a Borrower or its Subsidiaries in a Permitted Acquisition; provided,
however, that such Indebtedness (a) is either Purchase Money Indebtedness or a Capital
Lease with respect to Equipment or mortgage financing with respect to Real Property, (b) was in
existence prior to the date of such Permitted Acquisition, and (c) was not incurred in connection
with, or in contemplation of, such Permitted Acquisition.




          “Acquisition” means (a) the purchase or other acquisition by a Person or its
Subsidiaries of all or substantially all of the assets of (or any division or business line of) any
other Person, or (b) the purchase or other acquisition (whether by means of a merger,
consolidation, or otherwise) by a Person or its Subsidiaries of all or substantially all of the
Stock of any other Person.




          “Additional Documents” has the meaning specified therefor in Section 5.13 of
the Agreement.




          “Advances” has the meaning specified therefor in Section 2.1(a) of the
Agreement.




          “Affected Lender” has the meaning specified therefor in Section 2.13(b) of the
Agreement.




          “Affiliate” means, as applied to any Person, any other Person who controls, is
controlled by, or is under common control with, such Person. For purposes of this definition,
“control” means the possession, directly or indirectly through one or more intermediaries, of the
power to direct the management and policies of a Person, whether through the ownership of Stock, by
contract, or otherwise; provided, however, that, for purposes of the definition of
Eligible Accounts and Section 6.12 of the Agreement: (a) any Person which owns directly or
indirectly 10% or more of the Stock having ordinary voting power for the election of directors or







1









 







other members of the governing body of a Person or 10% or more of the partnership or other
ownership interests of a Person (other than as a limited partner of such Person) shall be deemed an
Affiliate of such Person, (b) each director (or comparable manager) of a Person shall be deemed to
be an Affiliate of such Person, and (c) each partnership in which a Person is a general partner
shall be deemed an Affiliate of such Person.




          “Agent” has the meaning specified therefor in the preamble to the Agreement.




          “Agent-Related Persons” means Agent, together with its Affiliates (including the
Issuing Lender and the Swing Lender), officers, directors, employees, attorneys, and agents.




          “Agent’s Applicable Account” means, with respect to the US Obligations or the Foreign
Obligations, as applicable, the Deposit Accounts of Agent identified on Schedule A-1.




          “Agent’s Liens” means the Liens granted by any Borrower or its Subsidiaries to Agent
under the Loan Documents.




          “Agreement” means the Credit Agreement to which this Schedule 1.1 is attached.




          “Applicable Designee” means any office, branch or Affiliate of a Lender designated
thereby from time to time with the consent of Agent (which such consent shall not be unreasonably
withheld, conditioned or delayed) to fund Advances or Letters of Credit to the Foreign Borrower.
As of the Closing Date, the Applicable Designees of each Lender are set forth on Schedule
C-1 (which schedule may be updated from time to time upon written notice by any Lender to
Agent). Any assignment by a Lender of all or a portion of its Revolver Commitment to fund or
participate in Advances or Letters of Credit to the Foreign Borrower to an Applicable Designee
shall be effected by delivering to Agent an addendum executed by such Lender and its Applicable
Designee, in form and substance satisfactory to Agent. For all purposes of this Agreement, any
designation of an Applicable Designee by a Lender shall not affect such Lender’s rights and
obligations with respect to its Revolver Commitment and the Loan Parties, the other Lenders and
Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s
rights and obligations under this Agreement and the other Loan Documents, except as otherwise
expressly permitted in this Agreement or in the applicable addendum.




          “Applicable Borrower” means (a) with respect to any US Advance, US Letter of Credit or
other amount owing hereunder or any matter pertaining to such US Advance, US Letter of Credit or
other amount, the US Borrowers and (b) with respect to any Foreign Advance, Foreign Letter of
Credit or other amount owing hereunder or any matter pertaining to such Foreign Advance, Foreign
Letter of Credit or other amount, the Foreign Borrower. Notwithstanding anything to contrary
contained in any Loan Document, the Foreign Loan Parties shall not be liable with respect to the US
Obligations.




          “Application Event” means the occurrence of (a) a failure by Borrowers to repay all of
the Obligations in full on the Maturity Date, or (b) an Event of Default and the election by Agent
or the Required Lenders to require that payments and proceeds of Collateral be applied pursuant to
Section 2.4(b)(ii) or Section 2.4(b)(iii), as applicable, of the Agreement.







2









 









          “Applicable Margin” means, as of any date of determination (with respect to any
portion of the outstanding Advances), the applicable margin set forth in the following table that
corresponds to the most recent calculation of Average Quarterly Excess Availability delivered to
Agent pursuant to Section 5.1 of the Agreement (the “Excess Availability
Calculation”); provided, however, that for the period from the Closing Date
through the date Agent receives the Excess Availability Calculation in respect of the testing
period ending March 31, 2011, the Applicable Margin shall be at “Level II”:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Average Quarterly	 	LIBOR Rate	 	 	 	 	 	Unused
	Level	 	Excess Availability	 	Loans	 	Base Rate Loans	 	Fees
	I
	 	 	> $90,000,000	 	 	 	2.25	%	 	 	1.25	%	 	 	0.500	%
	II
	 	≤

 $90,000,000 but
> $60,000,000	 	 	2.50	%	 	 	1.50	%	 	 	0.500	%
	III
	 	 	≤
 60,000,000	 	 	 	2.75	%	 	 	1.75	%	 	 	0.375	%






          Except as set forth in the foregoing proviso, the Applicable Margin shall be based upon the
most recent Excess Availability Calculation, which will be calculated as of the end of each fiscal
quarter. Except as set forth in the foregoing proviso, the Applicable Margin shall be
re-determined quarterly on the first day of the quarter following the date of delivery to Agent of
the certified calculation of the Average Quarterly Excess Availability pursuant to Section
5.1 of the Agreement; provided, however, that if Borrowers fail to provide such
certification when such certification is due, the Applicable Margin shall be set at “Level III” as
of the first day of the quarter following the date on which the certification was required to be
delivered until the date on which such certification is delivered (on which date (but not
retroactively), without constituting a waiver of any Default or Event of Default occasioned by the
failure to timely deliver such certification, the Applicable Margin shall be set at the margin
based upon the calculations disclosed by such certification). In the event that the information
regarding the Average Quarterly Excess Availability contained in any certificate delivered pursuant
to Section 5.1 of the Agreement is shown to be inaccurate, and such inaccuracy, if
corrected, would have led to the application of a higher Applicable Margin for any period (a
“Margin Period”) than the Applicable Margin actually applied for such Margin Period, then
(i) Borrowers shall immediately deliver to Agent a correct certificate for such Margin Period, (ii)
the Applicable Margin shall be determined as if the correct Applicable Margin (as set forth in the
table above) were applicable for such Margin Period, and (iii) Borrowers shall immediately deliver
to Agent full payment in respect of the accrued additional interest as a result of such increased
Applicable Margin for such Margin Period, which payment shall be promptly applied by Agent to the
affected Obligations.




          “Assignee” has the meaning specified therefor in Section 13.1(a) of the
Agreement.




          “Assignment and Acceptance” means an Assignment and Acceptance Agreement substantially
in the form of Exhibit A-1.







3









 








          “Authorized Person” means any one of the individuals identified on Schedule
A-2, as such schedule is updated from time to time by written notice from Borrowers to Agent.




          “Average Quarterly Excess Availability” means for any fiscal quarter of the Company,
an amount equal to the sum of the actual amount of Excess Availability on each day during such
fiscal quarter, as determined by Agent, divided by the number of days in such fiscal quarter.




          “Bank Product” means any one or more of the following financial products or
accommodations extended to any Borrower or its Subsidiaries by a Bank Product Provider: (a) credit
cards, (b) credit card processing services, (c) debit cards, (d) stored value cards, (e) purchase
cards (including so-called “procurement cards” or “P-cards”), (f) Cash Management Services, or (g)
transactions under Hedge Agreements permitted by this Agreement.




          “Bank Product Agreements” means those agreements entered into from time to time by a
Loan Party with a Bank Product Provider in connection with the obtaining of any of the Bank
Products.




          “Bank Product Collateralization” means providing cash collateral (pursuant to
documentation satisfactory to Agent in its Permitted Discretion) to be held by Agent for the
benefit of the Bank Product Providers (other than the Hedge Providers) in an amount determined by
Agent as sufficient to satisfy the reasonably estimated credit exposure with respect to then
existing Noticed Bank Product Obligations (other than Hedge Obligations).




          “Bank Product Obligations” means, collectively, the US Bank Product Obligations and
the Foreign Bank Product Obligations.




          “Bank Product Provider” means any Lender or any of its Affiliates that extends to any
Loan Party a Bank Product; provided, however, that if, at any time, a Lender ceases
to be a Lender under the Agreement, then, from and after the date on which it ceases to be a Lender
thereunder, neither it nor any of its Affiliates shall constitute Bank Product Providers and the
obligations with respect to Bank Products provided by such former Lender or any of its Affiliates
shall no longer constitute Bank Product Obligations.




          “Bank Product Provider Letter Agreement” means a letter agreement in substantially the
form attached hereto as Exhibit B-2, in form and substance satisfactory to Agent, duly
executed by the applicable Bank Product Provider, Borrowers, and Agent.




          “Bank Product Reserve Amount” means, as of any date of determination, the Dollar
amount of reserves that Agent has determined is necessary or appropriate to establish in its
Permitted Discretion in respect of Noticed Bank Product Obligations then provided or outstanding.




          “Bankruptcy Code” means title 11 of the United States Code, as in effect from time to
time.




          “Base Rate” means the greatest of (a) the Federal Funds Rate plus 0.50%, (b)
the rate of interest announced, from time to time, within Wells Fargo at its principal office in
San







4









 







Francisco as its “prime rate”, with the understanding that the “prime rate” is one of Wells Fargo’s
base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective
rates of interest are calculated for those loans making reference thereto and is evidenced by the
recording thereof after its announcement in such internal publications as Wells Fargo may designate
and (c) the LIBOR Reference Rate plus 1.00%.




          “Base Rate Loan” means each portion of the Advances that bears interest at a rate
determined by reference to the Base Rate. All Base Rate Loans shall be denominated in Dollars.




          “Basket Amount” means $10,000,000; provided that in the event that the Company
or one or more of its Subsidiaries consummates (a) a Restricted Debt Payment, (b) a Restricted
Payment or (c) an Investment (including, without limitation, Permitted Acquisitions), in each case,
in reliance on this basket, and the Payment Conditions are thereafter satisfied, such action shall
be deemed to have been made at a time when the Payment Conditions are satisfied and no portion of
this Basket Amount shall have been used or deemed to have been used.




          “Benefit Plan” means a “defined benefit plan” (as defined in Section 3(35) of ERISA)
for which any Borrower or any of its Subsidiaries or ERISA Affiliates has been an “employer” (as
defined in Section 3(5) of ERISA) within the past six years.




          “Board of Directors” means the board of directors (or comparable managers) of the
Company or any committee thereof duly authorized to act on behalf of the board of directors (or
comparable managers).




          “Borrowers” has the meaning specified therefor in the preamble to the Agreement.




          “Borrowing” means a borrowing consisting of Advances made on the same day by Lenders
(or Agent on behalf thereof), or by Swing Lender in the case of a Swing Loan, or by Agent in the
case of a Protective Advance.




          “Borrowing Base” means, as of any date of determination, the sum of the US Borrowing
Base and the Foreign Borrowing Base.




          “Borrowing Base Collateral” means all Accounts and Inventory of any Loan Party.




          “Borrowing Base Excess” has the meaning set forth in Section
2.4(e)(i).




          “Borrowing Base Certificate” means a certificate in the form of Exhibit B-1.




          “Business Day” means any day that is not a Saturday, Sunday, or other day on which
banks are authorized or required to close in the State of New York or the State of Georgia, except
that, if a determination of a Business Day shall relate to (a) a LIBOR Rate Loan, the term
“Business Day” also shall exclude any day on which banks are closed for dealings in Dollar deposits
in the London interbank market, (b) any Advances denominated in Euros, the term “Business Day”
shall also exclude any day that is not a TARGET Day and (c) with respect to any Deposit Account or
Securities Account located outside of the United States, a Cash Dominion







5









 







Period, the term “Business Day” shall exclude any day on which banks in England and Wales,
Australia, New Zealand, or Canada, as applicable, are closed for the purposes of making wire
transfers or any other electronic transfer of funds from the applicable Deposit Accounts subject to
such Cash Dominion Period.




          “Canadian Anti-Money Laundering & Anti-Terrorism Legislation” means the Criminal Code,
R.S.C. 1985, c. C-46, The Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C.
2000, c. 17 and the United Nations Act, R.S.C. 1985, c.U-2 or any similar Canadian legislation,
together with all rules, regulations and interpretations thereunder or related thereto including,
without limitation, the Regulations Implementing the United Nations Resolutions on the Suppression
of Terrorism and the United Nations al-Qaida and Taliban Regulations promulgated under the United
Nations Act




          “Canadian Collection Account” means each account established at a Canadian Collection
Bank subject to a Control Agreement into which funds shall be transferred as provided in
Section 2.15(a)(ii).




          “Canadian Collection Banks” has the meaning specified therefor in Section
2.15(a)(ii).




          “Canadian Concentration Account” has the meaning specified therefor in Section
2.15(c)(ii).




          “Canadian Control Accounts” means, collectively, the Canadian Collection Account, the
Canadian Disbursement Accounts (other than Excluded Accounts) and the Securities Accounts of any
Canadian Guarantor.




          “Canadian Disbursement Account” means each checking and/or disbursement account of the
Canadian Guarantors for their general corporate purposes, including for the purpose of paying the
Canadian Guarantors’ trade payables and other operating expenses.




          “Canadian Dominion Account” has the meaning specified therefor in Section
2.15(d)(ii).




          “Canadian Guarantors” means Exide Technologies Canada Corporation, a corporation
incorporated under the laws of the province of Nova Scotia, and each other Foreign Guarantor
organized in Canada or a province or territory of Canada.




          “Capital Expenditures” means, with respect to any Person for any period, the aggregate
of all expenditures by such Person and its Subsidiaries during such period that are capital
expenditures as determined in accordance with GAAP, whether such expenditures are paid in cash or
financed.




          “Capitalized Lease Obligation” means that portion of the obligations under a Capital
Lease that is required to be capitalized in accordance with GAAP.




          “Capital Lease” means a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP.







6









 








          “Cash Collateralize” or “Cash Collateralization” means providing cash
collateral (pursuant to documentation satisfactory to Agent in its Permitted Discretion, including
provisions that specify that the Letter of Credit fee and all usage charges set forth in the
Agreement will continue to accrue while the Letters of Credit are outstanding) to be held by Agent
for the benefit of the Issuing Lender and those Lenders with a Revolver Commitment in an amount
equal to (i) 105% of the then existing Letter of Credit Usage with respect to any Letters of Credit
denominated in Dollars and (ii) 110% of the then existing Letter of Credit Usage with respect to
any Letters of Credit denominated in Euros.




          “Cash Dominion Period” means (a) any period during which any Event of Default shall
have occurred and be continuing and (b) each period commencing on a date that Excess Availability
has been less than the Threshold Amount for a period of 3 consecutive Business Days, and continuing
until the date Excess Availability shall have been equal to or greater than the Threshold Amount
for 60 consecutive days (or earlier if Agent has determined that the circumstances surrounding such
Cash Dominion Period cease to exist); provided that a Cash Dominion Period commencing under
clause (b) of the definition thereof with respect to Foreign Loan Parties may be discontinued no
more than 1 time during the term of this Agreement.




          “Cash Equivalents” means (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States, or any agency thereof and backed by the full
faith and credit of the United States, in each case maturing within 1 year from the date of
acquisition thereof, (b) marketable direct obligations issued by, or unconditionally guaranteed by,
any member of the EMU, or any agency thereof and backed by the full faith and credit of such member
of the EMU, in each case maturing within 1 year from the date of acquisition thereof and, at the
time of acquisition, having one of the two highest ratings obtainable from either Standard & Poor’s
Rating Group (“S&P”) or Moody’s Investors Service, Inc. (“Moody’s”), (c) marketable
direct obligations issued or fully guaranteed by any state of the United States or any political
subdivision of any such state or any public instrumentality thereof maturing within 1 year from the
date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either S&P or Moody’s, (d) commercial paper maturing no more than 270 days from the
date of creation thereof and, at the time of acquisition, having a rating of at least A-1 from S&P
or at least P-1 from Moody’s, (e) certificates of deposit, time deposits, overnight bank deposits
or bankers’ acceptances maturing within 1 year from the date of acquisition thereof issued by any
bank organized under the Laws of (i) the United States or any state thereof or the District of
Columbia or any United States branch of a foreign bank or (ii) any member of the EMU, having at the
date of acquisition thereof combined capital and surplus of not less than $500,000,000, (f) Deposit
Accounts maintained with (i) any bank that satisfies the criteria described in clause (e) above, or
(ii) any other bank organized under the Laws of the United States or any state thereof so long as
the full amount maintained with any such other bank is insured by the Federal Deposit Insurance
Corporation, (g) repurchase obligations of any commercial bank satisfying the requirements of
clause (e) of this definition or recognized securities dealer having combined capital and surplus
of not less than $500,000,000, having a term of not more than seven days, with respect to
securities satisfying the criteria in clauses (a) or (e) above, (h) debt securities with maturities
of six months or less from the date of acquisition backed by standby letters of credit issued by
any commercial bank satisfying the criteria described in clause (e) above, and (h) Investments in
money market funds substantially all of whose assets are invested in the types of assets described
in clauses (a) through (h) above.







7









 








          “Cash Management Arrangement” means an arrangement satisfactory to Agent in its
Permitted Discretion to facilitate the Agent’s ability to establish control of certain foreign
Securities Accounts and Deposit Accounts under certain circumstances, which may consist of a
notice, in form and substance satisfactory to Agent in its Permitted Discretion, executed and
delivered by a Loan Party to the applicable securities intermediary (with respect to a Securities
Account) or bank (with respect to a Deposit Account) and acknowledgment from such securities
intermediary or bank.




          “Cash Management Services” means any cash management or related services including
treasury, depository, return items, overdraft, controlled disbursement, merchant store value cards,
e-payables services, electronic funds transfer, interstate depository network, automatic clearing
house transfer (including the Automated Clearing House processing of electronic funds transfers
through the direct Federal Reserve Fedline system) and other cash management arrangements.




          “Change of Control” means that (a) any “person” or “group” (within the meaning of
Sections 13(d) and 14(d) of the Exchange Act), becomes the beneficial owner (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of 40%, or more, of the Stock of the Company
having the right to vote for the election of members of the Board of Directors, (b) a majority of
the members of the Board of Directors do not constitute Continuing Directors, (c) the Company fails
to own and control, directly or indirectly, 100% of the Stock of the Foreign Borrower or any US
Subsidiary Borrower (except for any US Subsidiary Borrower (i) all of the Stock in which was sold
or liquidated pursuant to a Permitted Disposition or (ii) any US Subsidiary Borrower that has been
merged, consolidated or liquidated within or into the Company or another US Subsidiary Borrower),
or (d) a “change of control” or similar event shall occur as provided in any Permitted Preferred
Stock (or certificate of designation governing the same) or, on and after the execution and
delivery thereof, the Senior Note Indenture (or any Refinancing Indebtedness in respect thereof),
the Existing Senior Subordinated Notes (or any Refinancing Indebtedness in respect thereof) or any
Permitted Additional Pari Passu Obligations(or any Refinancing Indebtedness in respect
thereof), which has not been waived or consented to by the holders thereof.




          “Closing Date” means the date on which each of the conditions precedent set forth on
Schedule 3.1 either have been satisfied or have been waived.




          “Closing Date Projections” has the meaning specified therefor in Schedule 3.1.




          “Closing Date Senior Notes” means the 8.625% Senior Secured Notes due 2018 issued
under the Senior Notes Indenture.




          “Code” means the New York Uniform Commercial Code, as in effect from time to time.




          “Collateral” means the US Collateral and the Foreign Collateral; provided
that, anything in any Loan Document to the contrary notwithstanding, Collateral, US Collateral, and
Foreign Collateral shall not include Government Grant Property.







8









 








          “Collateral Access Agreement” means a landlord waiver, bailee letter, or
acknowledgement agreement of any lessor, warehouseman, processor, consignee, or other Person in
possession of, having a Lien upon, or having rights or interests in a Borrower’s or its
Subsidiaries’ books and records, Equipment, or Inventory, in each case, in form and substance
satisfactory to Agent in its Permitted Discretion.




          “Collections” means all cash, checks, notes, instruments, and other items of
payment (including insurance proceeds, cash proceeds of asset sales, rental proceeds, and tax
refunds).




          “Commitment Excess” has the meaning specified therefor in Section 2.4(e)(i).




          “Company” has the meaning specified therefor in the preamble to the Agreement.




          “Compliance Certificate” means a certificate substantially in the form of Exhibit
C-1 delivered by a Responsible Officer of the Company to Agent.




          “Confidential Information” has the meaning specified therefor in Section
17.9(a) of the Agreement.




          “Continuing Director” means (a) any member of the Board of Directors who was a
director (or comparable manager) of the Company on the Closing Date, and (b) any individual who
becomes a member of the Board of Directors after the Closing Date if such individual was approved,
appointed or nominated for election to the Board of Directors by a majority of the Continuing
Directors, but excluding any such individual originally proposed for election in opposition to the
Board of Directors in office at the Closing Date in an actual or threatened election contest
relating to the election of the directors (or comparable managers) of the Company and whose initial
assumption of office resulted from such contest or the settlement thereof.




          “Control Agreement” means a control agreement, in form and substance satisfactory to
Agent in its Permitted Discretion, executed and delivered by a Loan Party, Agent, and the
applicable securities intermediary (with respect to a Securities Account) or bank (with respect to
a Deposit Account).




          “Copyright Security Agreement” has the meaning specified therefor in the Security
Agreement.




          “Daily Balance” means, as of any date of determination and with respect to any
Obligation, the amount of such Obligation owed at the end of such day.




          “Default” means an event, condition, or default that, with the giving of notice, the
passage of time, or both, would be an Event of Default.




          “Defaulting Lender” means any Lender that (a) has failed to fund any amounts required
to be funded by it under the Agreement on the date that it is required to do so under the Agreement
(including the failure to make available to Agent amounts required pursuant to a Settlement or to
make a required payment in connection with a Letter of Credit Disbursement),







9









 







unless such obligation to fund is the subject of a good faith dispute, (b) notified any Borrower,
Agent, or any Lender in writing that it does not intend to comply with all or any portion of its
funding obligations under the Agreement, (c) has made a public statement to the effect that it does
not intend to comply with its funding obligations under the Agreement or under other agreements
generally (as reasonably determined by Agent) under which it has committed to extend credit, (d)
failed, within 1 Business Day after written request by Agent, to confirm that it will comply with
the terms of the Agreement relating to its obligations to fund any amounts required to be funded by
it under the Agreement, (e) otherwise failed to pay over to Agent or any other Lender any other
amount required to be paid by it under the Agreement within 1 Business Day after written request by
Agent, unless the subject of a good faith dispute, or (f) (i) becomes or is insolvent or has a
parent company that has become or is insolvent or (ii) becomes the subject of a bankruptcy or
Insolvency Proceeding, or has had a receiver, conservator, trustee, or custodian or appointed for
it, or has taken any action in furtherance of, or indicating its consent to, approval of or
acquiescence in any such proceeding or appointment or has a parent company that has become the
subject of a bankruptcy or Insolvency Proceeding, or has had a receiver, conservator, trustee, or
custodian appointed for it, or has taken any action in furtherance of, or indicating its consent
to, approval of or acquiescence in any such proceeding or appointment; provided that a
Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any
equity interest in that Lender or any direct or indirect parent company thereof by a Governmental
Authority.




          “Defaulting Lender Rate” means (a) with respect to any obligation denominated in
Dollars, (i) for the first 3 days from and after the date the relevant payment is due, the Base
Rate, and (ii) thereafter, the interest rate then applicable to Advances that are Base Rate Loans
(inclusive of the Applicable Margin for Base Rate Loans applicable thereto) and (b) with respect to
any obligation denominated in Euros, the greater of (i) a rate equal to Agent’s aggregate marginal
cost (including the cost of maintaining any required reserves or deposit insurance and of any fees,
penalties, overdraft charges or other costs or expenses incurred by Agent as a result of the
failure to deliver funds hereunder) of carrying such amount and (ii) a rate reasonably determined
by Agent in accordance with banking industry rules on interbank compensation.




          “Deposit Account” means any deposit account (as that term is defined in the Code).




          “Designated Account” means, with respect to the US Borrowers or the Foreign Borrower,
the applicable Deposit Account of such Borrowers identified on Schedule D-1.




          “Designated Account Bank” has the meaning specified therefor in Schedule D-1.




          “Dilution” means, as of any date of determination, a percentage, based upon the
experience of the immediately prior consecutive 12 months, that is the result of dividing the
Dollar amount of (a) bad debt write-downs, discounts, advertising allowances, credits, or other
dilutive items with respect to Borrowers’ Accounts during such period, by (b) Borrowers’ billings
with respect to Accounts during such period.







10









 








          “Dilution Reserve” means, as of any date of determination, an amount sufficient to
reduce the advance rate against Eligible Accounts by 1 percentage point for each percentage point
by which Dilution is in excess of 5%.




          “Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in
Dollars, such amount, and (b) with respect to any amount denominated in Euros, the equivalent
amount thereof in Dollars as determined by Agent, at such time on the basis of the Spot Rate
(determined in respect of the most recent Revaluation Date) for the purchase of Dollars with Euros.




          “Dollars” or “$” means United States dollars.




          “Dutch Financial Supervision Act” means the Financial Supervision Act (Wet op Het
Financieel Toezicht) as amended from time to time.




          “EBITDA” means, with respect to the Company and its Subsidiaries, for any period, the
sum (without duplication) of (a) Net Income; plus (b) to the extent Net Income has been
reduced thereby, (i) all income taxes of the Company and its Subsidiaries paid or accrued in
accordance with GAAP for such period other than income taxes attributable to extraordinary, unusual
or nonrecurring gains or losses or taxes attributable to sales or dispositions outside the ordinary
course of business, (ii) Interest Expense, (iii) Non-cash Charges, (iv) any extraordinary gain (or
loss), together with any related provision for taxes on any such extraordinary gain (or the tax
effect of any such extraordinary loss), realized by the Company or any Subsidiary during such
period, and (v) any unusual or non-recurring gain (or loss), together with any related provision
for taxes on any such unusual or non-recurring gain (or the tax effect of any such unusual or
non-recurring loss), realized by the Company or any Subsidiary during such period, including,
without limitation, restructuring activities (including, without limitation, severance cost and
facility closures) or non-recurring cost and expenses incurred in connection with an offering of
any Permitted Preferred Stock, Investments permitted under Section 6.11, recapitalization
or permitted incurrence of Indebtedness that (A) are identified in the Closing Date Projections
(which adjustments to EBITDA may be made during any Reference Period) or (B) are factually
supportable, and are expected to have a continuing impact, determined on a basis consistent with
Regulation S-X and such adjustments are set forth in a certificate signed by the Company’s chief
financial officer and one other Responsible Officer that states (x) the amount of such adjustment
or adjustments and (y) that such adjustment or adjustments are based on the reasonable good faith
belief of the officers executing such certificate at the time of such execution; less (c)
any non-cash items increasing Net Income for such period, all as determined on a consolidated basis
for the Company and its Subsidiaries in accordance with GAAP.




          “Eligible Accounts” means those Accounts created by any Eligible Loan Party in the
ordinary course of its business, that arise out of such Eligible Loan Party’s sale of goods or
rendition of services, that comply with each of the representations and warranties respecting
Eligible Accounts made in the Loan Documents, and that are not excluded as ineligible by virtue of
one or more of the excluding criteria set forth below; provided, however, that such
criteria may be revised from time to time by Agent in accordance with the last paragraph of this
definition. In determining the amount to be included, Eligible Accounts shall be calculated net of
customer deposits and unapplied cash. Eligible Accounts shall not include the following:







11









 








          (a) Accounts that the Account Debtor has failed to pay within 120 days of original invoice
date or more than 60 days after the original due date;




          (b) Accounts owed by an Account Debtor (or its Affiliates) where 50% or more of all Accounts
owed by that Account Debtor (or its Affiliates) are deemed ineligible hereunder;




          (c) Accounts with respect to which the Account Debtor is an Affiliate of an Eligible Loan
Party or an employee or agent of an Eligible Loan Party or any Affiliate of a Borrower;




          (d) Accounts arising in a transaction wherein goods are placed on consignment or are sold
pursuant to a guaranteed sale, a sale or return, a sale on approval, a bill and hold, or any other
terms by reason of which the payment by the Account Debtor may be conditional;




          (e) Accounts that are not payable in Dollars; provided that Accounts created by a
Foreign Guarantor may also be payable in Euros or the lawful currency of any Qualified Foreign
Jurisdiction;




          (f) Accounts (other than Accounts with respect to which the Account Debtor is a Governmental
Authority) unless:




               (i) the Account is supported by an irrevocable letter of credit reasonably satisfactory to
Agent in its Permitted Discretion (as to form, substance, and issuer or domestic confirming bank);



               (ii) the Account is covered by credit insurance in form, substance, and amount, and by an
insurer, reasonably satisfactory to Agent in its Permitted Discretion;



               (iii) (A) the address of the Account Debtor listed on the Account is located in a Qualified
Jurisdiction, and (B) the Account Debtor either (1) maintains its Chief Executive Office in a
Qualified Jurisdiction, (2) is organized under the laws of a Qualified Jurisdiction or any state,
territory, province or subdivision thereof, or (3) is resident or situated in a Qualified
Jurisdiction; or



               (iv) the Account Debtor is reasonably acceptable to Agent in its Permitted Discretion, and the
aggregate amount of such Accounts does not exceed $4,000,000;



          (g) Accounts with respect to which the Account Debtor is a Governmental Authority (other than
Accounts with respect to which the Account Debtor is a United States Governmental Authority and the
applicable US Borrower has complied, to the satisfaction of Agent in its Permitted Discretion, with
the Assignment of Claims Act, 31 USC § 3727), unless (i) the Account is supported by an irrevocable
letter of credit reasonably satisfactory to Agent in its Permitted Discretion (as to form,
substance, and issuer or domestic confirming bank), (ii) the Account is covered by credit insurance
in form, substance, and amount, and by an insurer, satisfactory to Agent in its Permitted
Discretion or (iii) Excess Availability (determined without regard to any Accounts otherwise
included therein pursuant to this clause (iii)) is greater than







12









 







$50,000,000 at the applicable time of determination; provided that only up to $6,000,000 of
Accounts may be considered eligible on account of this clause (iii);




          (h) Accounts with respect to which the Account Debtor (i) is a creditor of any Eligible Loan
Party, (ii) has or has asserted a right of setoff, or (iii) has disputed its obligation to pay all
or any portion of the Account, in each case to the extent of such claim, right of setoff, or
dispute or the Account is contingent in any respect or for any reason (the amount of each such
offset includes, but is not limited to, tolling liability, which is represented by the value of
materials that are owned by any Account Debtor but that are in the possession of an Eligible Loan
Party for the purpose of being tolled into finished goods for an Account Debtor);




          (i) Accounts with respect to an Account Debtor whose total obligations owing to an Eligible
Loan Party exceed 15% (such percentage, as applied to a particular Account Debtor, being subject to
increase by Agent in its Permitted Discretion) of all Eligible Accounts, to the extent of the
obligations owing by such Account Debtor in excess of such percentage; provided,
however, that, in each case, the amount of Eligible Accounts that are excluded because they
exceed the foregoing percentage shall be determined by Agent based on all of the otherwise Eligible
Accounts prior to giving effect to any eliminations based upon the foregoing concentration limit;




          (j) Accounts with respect to which the Account Debtor shall (i) apply for, suffer, or consent
to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator
of itself or of all or a substantial part of its property or call a meeting of its creditors, (ii)
admit in writing its inability, or be (A) insolvent or (B) generally unable, to pay its debts as
they become due or cease operations of its present business, (iii) make a general assignment for
the benefit of creditors, (iv) commence a voluntary case under any state or federal bankruptcy Laws
(as now or hereafter in effect), (v) be adjudicated a bankrupt or insolvent, (vi) file a petition
seeking to take advantage of any other Law providing for the relief of debtors, (vii) acquiesce to,
or fail to have dismissed, any petition which is filed against it in any involuntary case under
such bankruptcy Laws, or (viii) take any action for the purpose of effecting any of the foregoing;




          (k) Accounts, the collection of which, Agent, in its Permitted Discretion, believes to be
doubtful by reason of the Account Debtor’s financial condition;




          (l) Accounts that are not subject to a valid and perfected first-priority Agent’s Lien;




          (m) Accounts for which the assignment thereof are restricted or prohibited by the terms of
such Account or by Law except to the extent such restriction or prohibition does not prevent the
collection thereof by the applicable Loan Party or affect or impair the validity or perfection of
the Agent’s Liens therein;




          (n) Accounts with respect to which (i) the goods giving rise to such Account have not been
shipped to the Account Debtor or the goods have been shipped to the Account Debtor with shipping
terms of FOB destination and the goods have not been received by the







13









 







Account Debtor, (ii) the services giving rise to such Account have not been performed by the
applicable Eligible Loan Party or (iii) the Account otherwise does not represent a final sale;




          (o) Accounts with respect to which the Account Debtor is a Sanctioned Person or Sanctioned
Entity;




          (p) Accounts that represent the right to receive progress payments or other advance billings
that are due prior to the completion of performance by Eligible Loan Parties of the subject
contract for goods or services;




          (q) any Account which is subject to any Lien other than (i) Agent’s Lien, (ii) those permitted
in clauses (b), (c) and (g) of the definition of Permitted Liens, or (iii) any other liens
permitted under this Agreement that are subject to an intercreditor agreement in form and substance
satisfactory to Agent in its Permitted Discretion between the holder of such security interest or
lien and Agent;




          (r) Accounts with respect to which the applicable Eligible Loan Party has made any agreement
with any Account Debtor for any deduction therefrom (but only to the extent of such deductions from
time to time), except for discounts or allowances made in the ordinary course of business for
prompt payment and except for volume discounts, all of which discounts or allowances are reflected
in the calculation of the face value of each respective invoice related thereto and except for
returns, rebates or credits reflected in the calculation of the face value of each such amount;




          (s) Accounts with respect to which any return, rejection or repossession of the applicable
merchandise has occurred or the rendition of services has been disputed;




          (t) any Account that is not payable to an Eligible Loan Party;




          (u) any Account that has not been invoiced;




          (v) Accounts acquired in connection with a Permitted Acquisition, until the completion of an
audit of such Accounts, satisfactory to Agent in its Permitted Discretion (which audit may be
conducted prior to the closing of such Permitted Acquisition);




          (w) with respect to Accounts of the Foreign Guarantors, Accounts with respect to which the
agreement evidencing such Accounts are not governed by the Laws of Australia, Canada, England or
New Zealand or any state in the United States, or the Laws of such other jurisdictions acceptable
to Agent in its Permitted Discretion; or




          (x) Accounts for which credit insurance has been requested and denied.



The criteria for Eligible Accounts set forth above may only be changed and any new criteria for
Eligible Accounts may only be established by Agent in its Permitted Discretion based on: (i) an
event, condition or other circumstance arising after the Closing Date, (ii) an event, condition or
other circumstance existing on the Closing Date to the extent Agent has no written notice thereof
from the Company prior to the Closing Date or otherwise has no knowledge of such event, condition
or other circumstance prior to the Closing Date, or (iii) an event, condition or other







14









 







circumstance existing on the Closing Date of which Agent had knowledge thereof prior to the Closing
Date, but which has grown in severity or worsened or deteriorated since the Closing Date, in any
case under clause (i), (ii) or (iii) which adversely affects or could reasonably be expected to
adversely affect the Accounts as determined by Agent in its Permitted Discretion.




          “Eligible Canadian Inventory” means the Eligible Inventory owned by any Canadian
Guarantor.




          “Eligible Foreign Accounts” means the Eligible Accounts owned by any Foreign
Guarantor.




          “Eligible Inventory” means Inventory consisting of work-in-process, raw materials and
first quality finished goods held for sale in the ordinary course of Eligible Loan Parties’
business, that complies with each of the representations and warranties respecting Eligible
Inventory made in the Loan Documents, and that is not excluded as ineligible by virtue of one or
more of the excluding criteria set forth below; provided, however, that such
criteria may be revised from time to time by Agent in accordance with the last paragraph of this
definition. In determining the amount to be so included, Inventory shall be valued at the lower of
cost or market on a basis consistent with Eligible Loan Parties’ historical accounting practices.
An item of Inventory shall not be included in Eligible Inventory if:




          (a) an Eligible Loan Party does not have good, valid, and marketable title thereto;




          (b) an Eligible Loan Party does not have actual and exclusive possession thereof (either
directly or through a bailee or agent of an Eligible Loan Party);




          (c) it is not located at one of the locations in the continental United States or Canada set
forth on Schedule E-1 (or in-transit from one such location to another such location);




          (d) it is in-transit to or from a location of an Eligible Loan Party (other than in-transit
from one location set forth on Schedule E-1 to another location set forth on Schedule
E-1);




          (e) it is located on real property leased by an Eligible Loan Party or in a contract
warehouse, in each case, unless (i) a Rent Reserve has been established with respect thereto or
(ii) it is subject to a Collateral Access Agreement executed by the lessor or warehouseman, as the
case may be, and unless it is segregated or otherwise separately identifiable from goods of others,
if any, stored on the premises;provided that to the extent a Collateral Access Agreement
has not been obtained with respect to Inventory located on any such property or in a contract
warehouse on or prior to the Closing Date, no Rent Reserve shall be applied and such Inventory
shall not be deemed ineligible pursuant to this clause (e) until the 90th day after the
Closing Date (or such later date as may be agreed to by the Agent);




          (f) it is not subject to a valid and perfected first-priority Agent’s Lien;




          (g) it consists of goods returned or rejected by an Eligible Loan Party’s customer;







15









 








          (h) it consists of goods that are obsolete or slow moving, restrictive or custom items, or
goods that constitute spare parts, packaging and shipping materials, supplies used or consumed in
an Eligible Loan Parties’ business, bill and hold goods, defective goods, “seconds,” Inventory
acquired on consignment, or goods placed on consignment or commingled therewith (including such
goods that are located at a Permitted Consignment Location);




          (i) it is subject to third party Intellectual Property rights or other proprietary rights,
unless (i) such third party has entered into a Licensor Agreement or (ii) Agent is otherwise
satisfied that such Inventory can be freely sold by Agent on and after the occurrence of an Event
of a Default despite such third party rights;




          (j) it was acquired in connection with a Permitted Acquisition, until the completion of an
appraisal and field examination of such Inventory, in each case, satisfactory to Agent in its
Permitted Discretion (which appraisal and field examination may be conducted prior to the closing
of such Permitted Acquisition);




          (j) Inventory which may become subject to the claims of a supplier pursuant to Section 81.1 of
the Bankruptcy and Insolvency Act (Canada) except to the extent the vendor thereof has entered into
an agreement, in form and substance satisfactory to Agent in its Permitted Discretion, waiving the
right of repossession;




          (k) it is not owned by an Eligible Loan Party free and clear of all Liens and rights of any
other Person (including the rights of a purchaser that has made progress payments and the rights of
a surety that has issued a bond to assure such an Eligible Loan Party’s performance with respect to
that Inventory) other than (i) Agent’s Lien, (ii) those permitted in clauses (b), (c) and (g) of
the definition of Permitted Liens, or (iii) any other liens permitted under this Agreement that are
subject to an intercreditor agreement in form and substance satisfactory to Agent in its Permitted
Discretion between the holder of such security interest or lien and Agent;




          (l) it is covered by a negotiable document of title or bill of lading, unless such document
has been delivered to Agent with all necessary endorsements, free and clear of all Liens except
those created pursuant to the Loan Documents;




          (m) it consists of any costs associated with “freight-in” charges;




          (n) it consists of any gross profit mark-up in connection with the sale and distribution
thereof to any division of any Eligible Loan Party or to any Affiliate of such an Eligible Loan
Party, but only to such extent of the gross profit mark-up;




          (o) it consists of Hazardous Materials (other than finished goods that by their nature contain
Hazardous Materials and raw materials required for production of finished goods) or goods that in
either case can be transported or sold only with licenses that have not been obtained or are not
otherwise readily available (unless otherwise deemed to be Eligible Inventory by Agent in its
Permitted Discretion);




          (p) it is not covered by casualty insurance as required by terms of this Agreement; or







16









 








          (q) it was produced in violation of the Fair Labor Standards Act and subject to the “hot
goods” provision contained in Title 29 U.S.C. §215(a)(1), to the extent applicable.



The criteria for Eligible Inventory set forth above may only be changed and any new criteria for
Eligible Inventory may only be established by Agent in its Permitted Discretion based on: (i) an
event, condition or other circumstance arising after the Closing Date, (ii) an event, condition or
other circumstance existing on the Closing Date to the extent Agent has no written notice thereof
from the Company prior to the Closing Date or otherwise has no knowledge of such event, condition
or other circumstance prior to the Closing Date, or (iii) an event, condition or other circumstance
existing on the Closing Date of which Agent had knowledge thereof prior to the Closing Date, but
which has grown in severity or worsened or deteriorated since the Closing Date, in any case under
clause (i), (ii) or (iii) which adversely affects or could reasonably be expected to adversely
affect the Inventory as determined by Agent in its Permitted Discretion.




          “Eligible Loan Party” means (a) with respect to Eligible Accounts, the US Borrowers
and the Foreign Guarantors and (b) with respect to Eligible Inventory, the US Borrowers and the
Canadian Guarantors.




          “Eligible Transferee” means (a) a commercial bank organized under the Laws of the
United States, or any state thereof, and having total assets in excess of $500,000,000, (b) a
commercial bank organized under the Laws of any other country which is a member of the Organization
for Economic Cooperation and Development or a political subdivision of any such country and which
has total assets in excess of $500,000,000, provided that such bank is acting through a branch or
agency located in the United States, (c) a finance company, insurance company, or other financial
institution or fund that is engaged in making, purchasing, or otherwise investing in commercial
loans in the ordinary course of business and having (together with its Affiliates) total assets in
excess of $500,000,000, (d) any Affiliate (other than individuals) of a pre-existing Lender or
Related Fund of a pre-existing Lender, (e) so long as no Event of Default has occurred and is
continuing, any other Person approved by Agent and Borrowers (such approval by Borrowers not to be
unreasonably withheld, conditioned or delayed), and (f) during the continuation of an Event of
Default, any other Person approved by Agent; provided that an “Eligible Transferee” shall
not include (i) any Loan Party or any Affiliate of any Loan Party, or (ii) any Person that cannot
(either directly or through an Applicable Designee) lend to the Foreign Borrower in Dollars or
Euros, in each case, except as Agent may otherwise specifically agree in writing ; provided
further that, in each case, the respective assignee must qualify as a professional market
party under the Dutch Financial Supervision Act.




          “Eligible US Accounts” means the Eligible Accounts owned by any US Borrower.




          “Eligible US Inventory” means the Eligible Inventory owned by any US Borrower.




          “EMU” means the economic and monetary union in accordance with the Treaty of Rome
1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam
Treaty of 1998.







17









 








          “EMU Legislation” means the legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European currency.




          “Environmental Action” means any written complaint, summons, citation, notice,
directive, order, claim, litigation, investigation, judicial or administrative proceeding,
judgment, demand letter, or other written communication from any Governmental Authority, or any
Person involving violations or alleged violations of Environmental Laws or releases or threatened
releases of Hazardous Materials (a) from any assets, Real Property, or businesses of any Borrower,
any Subsidiary of a Borrower, or any of their predecessors in interest, (b) from adjoining
properties or businesses, or (c) from or onto any facilities which received Hazardous Materials
generated by any Borrower, any Subsidiary of a Borrower, or any of their predecessors in interest.




          “Environmental Law” means any applicable foreign, federal, state, provincial, foreign
or local statute, law, rule, regulation, ordinance, code, permit, authorization, license, binding
and enforceable guideline, binding and enforceable written policy, or rule of common law now or
hereafter in effect and in each case as amended, or any judicial or administrative interpretation
thereof, including any judicial or administrative order, consent decree or judgment, in each case,
to the extent binding on any Borrower or its Subsidiaries, relating to the environment, human
health or safety, employee health, or Hazardous Materials, in each case as amended from time to
time.




          “Environmental Liabilities” means all liabilities, monetary obligations, losses,
damages, costs and expenses (including all reasonable fees, disbursements and expenses of counsel,
experts, or consultants, and costs of investigation and feasibility studies), fines, penalties,
sanctions, and interest incurred as a result of any Environmental Action or Remedial Action.




          “Environmental Lien” means any Lien in favor of any Governmental Authority for
Environmental Liabilities.




          “Equipment” means equipment (as that term is defined in the Code).




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




          “ERISA Affiliate” means each person (as defined in Section 3(9) of ERISA) which
together with the Company or a Subsidiary of the Company would be deemed to be a “single employer”
(i) within the meaning of Section 414(b), (c), (m) or (o) of the Code or (ii) as a result of
Company or a Subsidiary of the Company being or having been a general partner of such Person.




          “Euro” means the lawful currency of the Participating Member States introduced in
accordance with the EMU Legislation.




          “Euro Equivalent” means, at any time, with respect to any amount denominated in
Dollars, the equivalent amount thereof in Euros as determined by Agent at such time on the basis







18









 







of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of
Euros with Dollars.




          “Event of Default” has the meaning specified therefor in Section 8 of the
Agreement.




          “Excess Availability” means, as of any date of determination, an amount equal to (a)
the lesser of (i) the Maximum Revolver Amount and (ii) the Borrowing Base minus (b) the
Revolver Usage minus (c) the aggregate amount, if any, of all trade payables of the
Borrowers and their Subsidiaries that are more than 60 days past their due date, except for trade
payables which are being disputed in good faith by a Loan Party.




          “Excess Availability Calculation” has the meaning specified therefor in the definition
of Applicable Margin.




          “Exchange Act” means the Securities Exchange Act of 1934, as in effect from time to
time.




          “Exchange Senior Notes” means the senior notes issued by the Company pursuant to a
registered exchange offer or private exchange offer for the Closing Date Senior Notes pursuant to
the Senior Note Indenture, which senior notes are substantially identical securities to the
applicable Closing Date Senior Notes; provided that (a) the aggregate principal amount of
the Senior Notes, together with the issuance of any such senior notes, shall not exceed the
aggregate principal amount of the Closing Date Senior Notes, (b) the interest rate of any such
senior notes shall not exceed the interest rate of the applicable Closing Date Senior Notes, (c)
the maturity date of such senior notes shall not be earlier than the maturity date of the
applicable Closing Date Senior Notes, (d) the collateral for such senior notes shall be identical
to the Collateral for the Closing Date Senior Notes and (e) the senior notes shall constitute
“Notes” under the Intercreditor Agreement for all purposes thereof.




          “Excluded Accounts” means Deposit Accounts and, as applicable, Securities Accounts (a)
the balance of which consists exclusively of withheld income taxes and federal, state, local or
foreign employment taxes in such amounts as are required in the reasonable judgment of any Borrower
to be paid to the Internal Revenue Service or any other U.S. federal, state or local or foreign
government agencies within the following two months with respect to employees of any of the Loan
Parties, (b) the balance of which consists exclusively of amounts required to be paid over to an
employee benefit plan pursuant to DOL Reg. Sec. 2510.3-102 or any Foreign Pension Plan on behalf of
or for the benefit of employees of one or more Loan Parties, (c) that is used solely for
disbursement of operating expenses of the Loan Parties and which Deposit Account does not receive
any Collections or the proceeds of Collateral, (d) the balance of which consists exclusively of the
proceeds of Senior Note Priority Collateral, (e) the balance of which consists exclusively of funds
provided by a U.S. Governmental Authority in connection with a Governmental Grant, or (f) the
balance of which, together with the balances of all other Deposit Accounts and Securities Accounts
of the Loan Parties which are not subject to a Control Agreement or Cash Management Arrangement,
does not exceed $2,500,000 at any one time.







19









 








          “Excluded Subsidiary” means a Restricted Subsidiary if the book value of such
Restricted Subsidiary’s total assets, when taken together with the aggregate book value of the
total assets of all other Restricted Subsidiaries excluded via this definition, as of such date,
does not exceed in the aggregate $10,000,000, including each Subsidiary identified as an Excluded
Subsidiary on Schedule 4.1(c); provided that no Subsidiary that guarantees, or
provides collateral support with respect to, the Senior Notes shall be deemed to be an Excluded
Subsidiary at any time any such guarantee is in effect.




          “Existing Credit Agreement” means that certain Credit Agreement, dated as of May 15,
2007, among the Company, certain US Subsidiaries and the Foreign Borrower, each as borrowers, the
lenders party thereto and Deutsche Bank AG New York Branch, as Agent.




          “Existing Credit Facility” means those certain facilities under the Existing Credit
Agreement.




          “Existing Letters of Credit” means those letters of credit described on Schedule
E-2 to the Agreement.




          “Existing Senior Secured Notes” means the Company’s existing 10.5% senior secured
notes due 2013.




          “Existing Senior Subordinated Notes” means the Company’s existing floating rate
convertible senior subordinated notes due September 18, 2013 in an aggregate principal amount not
to exceed $60,000,000.




          “FATCA” means Sections 1471 through 1474 of the IRC and any regulations or official
interpretations thereof.




          “Federal Funds Rate” means, for any period, a fluctuating interest rate per annum
equal to, for each day during such period, the weighted average 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 which is a Business Day, the average of the quotations for
such day on such transactions received by Agent from three Federal funds brokers of recognized
standing selected by it.




          “Fee Letter” means that certain fee letter, dated as of the Closing Date, among the
Company and Agent.




          “Fixed Charge Coverage Ratio” means, with respect to the Company and its Subsidiaries,
determined on a consolidated basis, for any Reference Period, the ratio of (a) EBITDA for such
period minus Capital Expenditures made (to the extent not already incurred in a prior
period) or incurred during such period, to (b) Fixed Charges for such period. In addition to and
without limitation of the foregoing, for purposes of this definition, “EBITDA” and “Fixed Charges”
shall be calculated after giving effect on a pro forma basis for the period of such calculation to
(i) the incurrence or repayment of any Indebtedness, or the issuance of any Preferred Stock, in
each case, of the Company or any of its Subsidiaries (and the application of the proceeds thereof),
other than the incurrence or repayment of Indebtedness in the ordinary







20









 







course of business for working capital purposes pursuant to working capital facilities, occurring
during the Reference Period, as if such incurrence, issuance or repayment, as the case may be (and
the application of the proceeds thereof), occurred on the first day of the Reference Period; and
(ii) any asset sales or other dispositions or Permitted Acquisitions (including, without
limitation, any Permitted Acquisition giving rise to the need to make such calculation as a result
of the Company or one of its Subsidiaries (including any Acquired Indebtedness assumed in
connection therewith and any EBITDA attributable to the assets which are the subject of the
Permitted Acquisition or asset sale or other disposition during the Reference Period) occurring
during the Reference Period, as if such asset sale or other disposition or Permitted Acquisition
(including the incurrence, assumption or liability for any such Acquired Indebtedness) occurred on
the first day of the Reference Period. If the Company or any of its Subsidiaries directly or
indirectly guarantees Indebtedness of a third Person, the preceding sentence shall give effect to
the incurrence of such guaranteed Indebtedness as if the Company or such Subsidiary had directly
incurred or otherwise assumed such guaranteed Indebtedness.




          For purposes of this definition, pro forma calculations shall be made in accordance with
Regulation S-X, except that such pro forma calculations may also include operating expense
reductions for such period resulting from any asset sale or other disposition or Permitted
Acquisition for which pro forma effect is being given that (A) have been realized or (B) for which
steps have been taken or are reasonably expected to be taken within twelve months of the date of
such transaction and are supportable and quantifiable, provided that, in either case, such
adjustments are set forth in a certificate signed by the Company’s chief financial officer and one
other Responsible Officer that states (i) the amount of such adjustment or adjustments and (ii)
that such adjustment or adjustments are based on the reasonable good faith belief of the officers
executing such certificate at the time of such execution.




          Furthermore, in calculating “Fixed Charges” for purposes of determining the denominator (but
not the numerator) of “Fixed Charge Coverage Ratio” (x) interest on outstanding Indebtedness
determined on a fluctuating basis as of the last day of the Reference Period and which will
continue to be so determined thereafter shall be deemed to have accrued at a fixed rate per annum
equal to the rate of interest on such Indebtedness in effect on the last day of the Reference
Period and (y) notwithstanding clause (x) above, interest on Indebtedness determined on a
fluctuating basis, to the extent such interest is covered by a Hedge Agreement, shall be deemed to
accrue at the rate per annum resulting after giving effect to the operation of such Hedge
Agreement.




          “Fixed Charges” means, with respect to any period and with respect to the Company and
its Subsidiaries determined on a consolidated basis in accordance with GAAP, the sum, without
duplication, of (a) Interest Expense paid in cash during such period, (b) scheduled principal
payments in respect of Indebtedness (including the principal component of payments due on Capital
Leases or under any synthetic lease, tax retention operating lease, off-balance sheet loan or
similar off-balance sheet financing product during such period but excluding (i) any such payments
with respect to the Existing Senior Subordinated Notes and (ii) any such payments in respect of
Indebtedness to the extent such Indebtedness is refinanced through the incurrence of Refinancing
Indebtedness permitted under this Agreement during such period) that were required to be paid
during such period, as determined on the first day of such period (or, with respect to Indebtedness
incurred thereafter, on the date of the incurrence thereof) and (c) all







21









 







Restricted Payments paid in cash during such period.




          “Floating Rate” means (a) with respect to Advances and Letters of Credit denominated
in Dollars, the rate applicable from time to time with respect to Advances that are Base Rate Loans
and (b) with respect to Advances and Letters of Credit denominated in Euros, the LIBOR Reference
Rate plus the Applicable Margin for LIBOR Rate Loans applicable from time to time with respect to
Advances that are LIBOR Rate Loans plus any Mandatory Costs.




          “Foreign Advances” means Advances made to the Foreign Borrower. For the avoidance of
doubt, Foreign Advances include any Foreign Swing Loan.




          “Foreign Bank Product Obligations” means (a) all obligations, liabilities,
reimbursement obligations, fees, or expenses owing by any Foreign Loan Party to any Bank Product
Provider pursuant to or evidenced by a Bank Product Agreement and irrespective of whether for the
payment of money, whether direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter arising, (b) all Foreign Hedge Obligations, and (c) all amounts that Agent or
any Lender is obligated to pay to a Bank Product Provider as a result of Agent or such Lender
purchasing participations from, or executing guarantees or indemnities or reimbursement obligations
to, a Bank Product Provider with respect to the Bank Products provided by such Bank Product
Provider to any Foreign Loan Party.




          “Foreign Borrower” has the meaning specified therefor in the preamble to the
Agreement.




          “Foreign Borrowing Base” means, as of any date of determination, the result of:




          (a)85%
of the amount of Eligible Foreign Accounts; minus


          (b)the amount, if any, of the applicable Dilution Reserve; plus



          (c) 85% times the most recently determined Net Liquidation Percentage times
the value (calculated at the lower of cost or market on a basis consistent with Company’s
historical accounting practices) of the Eligible Canadian Inventory; minus




          (d) the aggregate amount of reserves (other than the Dilution Reserve, if any), if any,
established by Agent under Section 2.1(c) of the Agreement with respect to the Foreign
Borrowing Base of the Foreign Loan Parties;



provided that Foreign Borrowing Base attributable to Foreign Guarantors (other than
Canadian Guarantors) shall at no time exceed $40 million.




          “Foreign Borrowing Base Usage” means, at any time, the amount (to the extent positive)
by which (a) the Foreign Revolver Usage (for this purpose, using the Dollar Equivalent of amounts
not denominated in Dollars) exceeds (b) the Foreign Borrowing Base at such time (based upon the
Borrowing Base Certificate most recently delivered).




          “Foreign Collateral” means the assets and properties of the Foreign Loan Parties and
the Pledgors described in the Foreign Security Documents.







22









 








          “Foreign Guarantors” means (a) each Foreign Subsidiary (other than an Excluded
Subsidiary) organized in a Qualified Foreign Jurisdiction existing on the Closing Date, and (b)
each other Person that becomes a Foreign Guarantor after the Closing Date pursuant to Section
5.12(b) of the Agreement.




          “Foreign Guaranty” means each general continuing guaranty, executed and delivered by
the US Loan Parties and the Foreign Guarantors in favor of Agent, for the benefit of the Lender
Group and the Bank Product Providers, in form and substance satisfactory to Agent in its Permitted
Discretion.




          “Foreign Hedge Obligations” means any and all obligations or liabilities, whether
absolute or contingent, due or to become due, now existing or hereafter arising, of the Foreign
Borrower or its Foreign Loan Parties owing pursuant to, or existing in respect of, Hedge Agreements
entered into with one or more of the Bank Product Providers.




          “Foreign Joinder Agreement” means a joinder agreement substantially in the form of
Exhibit J-2.




          “Foreign Lender” means any Lender or Participant that is not a United States person
within the meaning of IRC Section 7701(a)(30).




          “Foreign Letter of Credit” means a Letter of Credit issued on behalf of the Foreign
Borrower.




          “Foreign Loan Party” means the Foreign Borrower and the Foreign Guarantors.




          “Foreign (Non-Canadian) Collection Account” means each account established at a
Foreign (Non-Canadian) Collection Bank into which funds shall be transferred as provided in
Section 2.15(a)(iii).




          “Foreign (Non-Canadian) Collection Banks” has the meaning specified therefor in
Section 2.15(a)(iii).




          “Foreign (Non-Canadian) Control Accounts” means, collectively, the Foreign
(Non-Canadian) Collection Account, the Foreign (Non-Canadian) Disbursement Accounts (other than
Excluded Accounts) and the Securities Accounts of any Foreign (Non-Canadian) Loan Party.




          “Foreign (Non-Canadian) Disbursement Account” means each checking and/or disbursement
account of the Foreign (Non-Canadian) Loan Parties for their general corporate purposes, including
for the purpose of paying the Foreign (Non-Canadian) Loan Parties’ trade payables and other
operating expenses.




          “Foreign (Non-Canadian) Dominion Account” has the meaning specified therefor in
Section 2.15(d)(iii).




          “Foreign (Non-Canadian) Loan Parties” means any Foreign Loan Party other than a
Canadian Guarantor.







23









 








          “Foreign Obligations” means (a) all loans (including the Foreign Advances (inclusive
of Protective Advances and Foreign Swing Loans)), debts, principal, interest (including any
interest that accrues after the commencement of an Insolvency Proceeding, regardless of whether
allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding),
reimbursement or indemnification obligations with respect to Reimbursement Undertakings or with
respect to Foreign Letters of Credit (irrespective of whether contingent), premiums, liabilities
(including all amounts charged to the Loan Account pursuant to the Agreement), obligations
(including indemnification obligations), fees (including the fees provided for in the Fee Letter),
Lender Group Expenses (including any fees or expenses that accrue after the commencement of an
Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in
any such Insolvency Proceeding), guaranties, covenants, and duties of any kind and description
owing by any Foreign Loan Party pursuant to or evidenced by the Agreement or any of the other Loan
Documents and irrespective of whether for the payment of money, whether direct or indirect,
absolute or contingent, due or to become due, now existing or hereafter arising, and including all
interest not paid when due and all other expenses or other amounts that the Foreign Borrower is
required to pay or reimburse by the Loan Documents or by law or otherwise in connection with the
Loan Documents, (b) all debts, liabilities, or obligations (including reimbursement obligations,
irrespective of whether contingent) owing by the Foreign Borrower or any other Foreign Loan Party
to an Underlying Issuer now or hereafter arising from or in respect of Underlying Letters of
Credit, and (c) all Foreign Bank Product Obligations. Any reference in the Agreement or in the
Loan Documents to the Foreign Obligations shall include all or any portion thereof and any
extensions, modifications, renewals, or alterations thereof, both prior and subsequent to any
Insolvency Proceeding.




          “Foreign Revolver Usage” means, as of any date of determination, the sum of (a) the
amount of outstanding Foreign Advances, plus (b) the amount of the Foreign Letter of Credit
Usage.




          “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 Company or any one or more of its Restricted Subsidiaries primarily for the benefit of
employees of the Company or any of its Restricted 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 of employment, and
which plan is not subject to ERISA or the IRC.




          “Foreign Security Documents” means the documents identified on Schedule 3.1A
and such other security agreements, documents and instruments as may be required by Agent in its
Permitted Discretion (based on advice of local counsel), with the intent being that the Lenders
receive valid and enforceable perfected first-priority security interests (subject to Permitted
Liens) in all or substantially all of the personal property assets (including all tangible and
intangible assets, including receivables (to the extent possible under local law), contract rights,
securities, inventory (to the extent possible under local law), equipment, insurances, and material
Intellectual Property owned by each Foreign Loan Party in which it is practicable (in accordance
with and subject to requirements of local law and taking into account such cost and practicality
considerations as may be agreed by Agent) to obtain such security interests (as determined by







24









 







Agent in its Permitted Discretion, based on advice of local counsel) which security interests shall
secure the Foreign Obligations, each of which shall (a) be prepared by local counsel satisfactory
to Agent in its Permitted Discretion and (b) be in form and substance reasonably satisfactory to
Agent in its Permitted Discretion, each as amended, modified, restated and/or supplemented from
time to time.




          “Foreign Subsidiary” means any Subsidiary that is not a US Subsidiary.




          “Foreign Swing Loan” means Swing Loans made to the Foreign Borrower.




          “Fronting Fee” has the meaning specified therefor in Section 2.11(e).




          “Funding Date” means the date on which a Borrowing occurs.




          “Funding Losses” has the meaning specified therefor in Section 2.12(b)(ii) of
the Agreement.




          “GAAP” means generally accepted accounting principles as in effect from time to time
in the United States, consistently applied; provided, however, that all
calculations relative to liabilities shall be made without giving effect to Statement of Financial
Accounting Standards No. 159.




          “Governing Documents” means, with respect to any Person, the certificate or articles
of incorporation, by-laws, or other organizational documents of such Person.




          “Governmental Authority” means any foreign, federal, state, local, or other
governmental or administrative body, instrumentality, board, department, or agency or any court,
tribunal, administrative hearing body, arbitration panel, commission, or other similar
dispute-resolving panel or body.




          “Governmental Grant” means a transaction between the Company and any of its
Subsidiaries, on the one hand, and the U.S. Department of Energy or any other U.S. Governmental
Authority, on the other hand, entered into for the purposes of obtaining grants from such
Governmental Authority.




          “Government Grant Property” means, with respect to any Governmental Grant, (a) any
assets (real or personal and tangible or intangible) of the Company or such Restricted Subsidiary
(i) purchased or acquired with the proceeds of such any Governmental Grant or (ii) which have
otherwise become subject to restrictions or encumbrances imposed by the relevant U.S. Governmental
Authority in connection with, and as a requirement of, such Governmental Grant; provided,
however, that the book value of any such property or assets described in this clause (ii)
shall not exceed the greater of (A) an amount equal to 150% of such grant and (B) $10,000,000 with
respect to any such grant, subject in the case of this subclause (B) to a maximum of $100,000,000
in the aggregate with respect to all such Governmental Grants since the Closing Date;
provided, further, however, that, except to the extent otherwise consented
to by the Senior Noteholders, the book value of any such property or assets described in this
clause (ii) that constituted Collateral (excluding, for the avoidance of doubt, any such property
or assets purchased or acquired with the proceeds of such grant) immediately prior to such grant
shall not







25









 







exceed $25,000,000 in the aggregate with respect to all such grants since the Closing Date and (b)
any Intellectual Property generated in connection with such Governmental Grant to the extent that
the terms of such Governmental Grant or any applicable law, rule or regulation with respect thereto
prohibits Liens, encumbrances or any other similar restrictions thereon.




          “Guarantors” means the US Guarantors and the Foreign Guarantors.




          “Guaranty” means each US Guaranty and each Foreign Guaranty.




          “Hazardous Materials” means (a) substances that are defined or listed in, or otherwise
classified pursuant to, any applicable Laws or regulations as “hazardous substances,” “hazardous
materials,” “hazardous wastes,” “toxic substances,” or any other formulation intended to define,
list, or classify substances by reason of deleterious properties such as ignitability, corrosivity,
reactivity, carcinogenicity, reproductive toxicity, or “EP toxicity”, (b) oil, petroleum, or
petroleum derived substances, natural gas, natural gas liquids, synthetic gas, drilling fluids,
produced waters, and other wastes associated with the exploration, development, or production of
crude oil, natural gas, or geothermal resources, (c) any flammable substances or explosives or any
radioactive materials, and (d) asbestos in any form or electrical equipment that contains any oil
or dielectric fluid containing levels of polychlorinated biphenyls in excess of 50 parts per
million.




          “Hedge Agreement” means a “swap agreement” as that term is defined in Section
101(53B)(A) of the Bankruptcy Code, including, without limitation, any rate swap agreement, forward
rate agreement, commodity swap, commodity option, interest rate option, forward foreign exchange
agreement, spot foreign exchange agreement, rate cap agreement, rate floor agreement, rate collar
agreement, currency swap agreement, cross-currency rate swap agreement, currency option and any
other similar agreement, in each case, as the same may be amended, restated, supplemented, or
otherwise modified from time to time.




          “Hedge Obligations” means, collectively, the US Hedge Obligations and the Foreign
Hedge Obligations.




          “Hedge Provider” means any Lender or any of its Affiliates that enters into a Hedge
Agreement with any Borrower or its Subsidiary; provided however, that if, at any
time, a Lender ceases to be a Lender under the Agreement, then, from and after the date on which it
ceases to be a Lender thereunder, neither it nor any of its Affiliates shall constitute Hedge
Providers and the obligations with respect to Hedge Agreements entered into with such former Lender
or any of its Affiliates shall no longer constitute Hedge Obligations.




          “Holdout Lender” has the meaning specified therefor in Section 14.2(a) of the
Agreement.




          “Indebtedness” as to any Person means (a) all obligations of such Person for borrowed
money, (b) all obligations of such Person evidenced by bonds, debentures, notes, or other similar
instruments and all reimbursement or other obligations in respect of letters of credit, bankers
acceptances, or other comparable financial products, (c) all obligations of such Person as a lessee
under Capital Leases, (d) all obligations or liabilities of others secured by a







26









 







Lien on any asset of such Person, irrespective of whether such obligation or liability is assumed,
(e) all obligations of such Person to pay the deferred purchase price of assets (other than trade
payables incurred in the ordinary course of business and repayable in accordance with customary
trade practices), (f) all obligations of such Person owing under Hedge Agreements (which amount
shall be calculated based on the amount that would be payable by such Person if the Hedge Agreement
were terminated on the date of determination), (g) any Prohibited Preferred Stock of such Person,
and (h) any obligation of such Person guaranteeing or intended to guarantee (whether directly or
indirectly guaranteed, endorsed, co-made, discounted, or sold with recourse) any obligation of any
other Person that constitutes Indebtedness under any of clauses (a) through (g) above. For
purposes of this definition, (i) the amount of any Indebtedness represented by a guaranty or other
similar instrument shall be the lesser of the principal amount of the obligations guaranteed and
still outstanding and the maximum amount for which the guaranteeing Person may be liable pursuant
to the terms of the instrument embodying such Indebtedness, and (ii) the amount of any Indebtedness
described in clause (d) above shall be the lower of the amount of the obligation and the fair
market value of the assets of such Person securing such obligation. For the purposes of this
definition, (1) any Indebtedness evidenced by industrial revenue or development bonds or other
similar tax-exempt securities issued in connection with a Tax Abatement Transaction shall not
constitute “Indebtedness” so long as such bonds or securities are issued to and held by the Company
or the applicable Restricted Subsidiary party to such Tax Abatement Transaction and (2) the
Indebtedness evidenced by the Existing Senior Secured Notes shall not constitute “Indebtedness” of
the Company or any of its Subsidiaries so long as on or before the Closing Date the Company has
irrevocably deposited cash or Cash Equivalents with the trustee or paying agent with respect
thereto or any other Person (other than the Company or any Affiliate thereof) designated in
accordance with the indenture with respect thereto, in accordance with the terms of the Existing
Senior Secured Notes for the purpose of discharging, redeeming or otherwise paying in full the
Existing Senior Secured Notes (whether pursuant to a tender offer, optional redemption, or
otherwise).




          “Indemnified Liabilities” has the meaning specified therefor in Section 10.3
of the Agreement.




          “Indemnified Person” has the meaning specified therefor in Section 10.3 of the
Agreement.




          “Insolvency Proceeding” means any proceeding commenced by or against any Person under
any provision of the Bankruptcy Code, the bankruptcy and insolvency laws of Canada (including,
without limitations, the Bankruptcy and Insolvency Act (Canada) and the Companies’ Credits
Arrangement Act (Canada)) or under any other state, province or federal bankruptcy or insolvency
Law or any other Law (domestic of foreign), assignments for the benefit of creditors, formal or
informal moratoria, compositions, extensions generally with creditors, or proceedings seeking
reorganization, receivership, dissolution, liquidation, or other similar relief.




          “Intellectual Property” means all trademarks, trademark applications, trade names,
trade secrets, copyrights, patents, patent applications, licenses, service marks and other
intellectual property.





27











 





          “Intercreditor Agreement” means the Intercreditor Agreement dated the date
hereof by and among the Company, the Agent and the trustee under the Senior Note Indenture, as such
agreement may be amended, amended and restated, supplemented or otherwise modified in accordance
with the terms thereof.




          “Intercompany Note” means (a) the intercompany note, dated as of the date hereof,
executed and delivered by each Loan Party and each Subsidiary which, as of the Closing Date, is an
obligor on an outstanding intercompany loan made by a Loan Party and (b) each other intercompany
note executed after the date hereof in substantially the form of the intercompany note delivered
pursuant to clause (a) above (with such changes as may be required by Law or to prevent a material
adverse tax consequence for the Company or its Subsidiaries) or otherwise in form and substance
satisfactory to the Agent in its Permitted Discretion.




          “Intercompany Subordination Agreement” means (a) the intercompany subordination
agreement, dated as of the date hereof, executed and delivered by each Loan Party, each Subsidiary
which, as of the Closing Date, is an obligee on an outstanding intercompany loan made to a Loan
Party, and the Agent and (b) each other intercompany subordination agreement executed after the
date hereof in substantially the form of the intercompany subordination agreement delivered
pursuant to clause (a) above (with such changes as may be (i) required by Law, (ii) determined to
be advisable by local counsel in the applicable jurisdiction or (iii) in the case of intercompany
Indebtedness owed by a Foreign Loan Party to a US Loan Party, to comport with the terms of the
Intercreditor Agreement) or otherwise in form and substance satisfactory to the Agent in its
Permitted Discretion.




          “Interest Expense” means, for any period, the sum of, without duplication, (a) the
aggregate of the interest expense of the Company and its Subsidiaries for such period determined on
a consolidated basis in accordance with GAAP, including without limitation (i) any amortization of
debt discount, (ii) the net costs under interest rate Hedge Agreements, (iii) all capitalized
interest and (iv) the interest portion of any deferred payment obligation; provided that
any amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses
shall be excluded from the calculation of such interest expense, and (b) the interest component of
Capitalized Lease Obligations paid, accrued and/or scheduled to be paid or accrued by the Company
and its Subsidiaries during such period as determined on a consolidated basis in accordance with
GAAP. Interest Expense shall be calculated excluding unrealized gains and losses with respect to
Hedge Obligations.




          “Interest Period” means, with respect to each LIBOR Rate Loan, a period commencing on
the date of the making of such LIBOR Rate Loan (or the continuation of a LIBOR Rate Loan or the
conversion of a Base Rate Loan to a LIBOR Rate Loan) and ending 1, 2, or 3 months thereafter;
provided, however, that (a) interest shall accrue at the applicable rate based upon
the LIBOR Rate from and including the first day of each Interest Period to, but excluding, the day
on which any Interest Period expires, (b) any Interest Period that would end on a day that is not a
Business Day shall be extended to the next succeeding Business Day unless such Business Day falls
in another calendar month, in which case such Interest Period shall end on the next preceding
Business Day, (c) with respect to an Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period), the Interest Period shall end on the






28









 







last Business Day of the calendar month that is 1, 2, or 3 months after the date on which the
Interest Period began, as applicable, and (d) Borrowers may not elect an Interest Period which will
end after the Maturity Date.




          “Inventory” means inventory (as that term is defined in the Code).




          “Investment” means, with respect to any Person, any investment by such Person in any
other Person (including Affiliates) in the form of loans, guarantees, advances, capital
contributions (whether in the form of cash, assets, Stock or otherwise)(excluding (a) commission,
travel, and similar advances to officers and employees of such Person made in the ordinary course
of business, and (b) bona fide Accounts arising in the ordinary course of business), or
acquisitions of Indebtedness, Stock, or all or substantially all of the assets of such other Person
(or of any division or business line of such other Person), and any other items that are or would
be classified as investments on a balance sheet prepared in accordance with GAAP.




          “IRC” means the Internal Revenue Code of 1986, as in effect from time to time.




          “Issuing Lender” means (a) with respect to each Letter of Credit (other than Existing
Letters of Credit), WFCF (or one of its Affiliates) or any other Lender that, at the request of any
Borrower and with the consent of Agent (such consent not to be unreasonably withheld), agrees, in
such Lender’s sole discretion, to become an Issuing Lender for the purpose of issuing Letters of
Credit or Reimbursement Undertakings pursuant to Section 2.11 of the Agreement and the
Issuing Lender shall be a Lender and (b) with respect to each Existing Letter of Credit, the issuer
thereof identified on Schedule E-2 to the Agreement.




          “Laws” means, collectively, all international, foreign, federal, state, provincial and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of Law.




          “Lender” has the meaning set forth in the preamble to the Agreement, shall include the
Issuing Lender and the Swing Lender, and shall also include any other Person made a party to the
Agreement pursuant to the provisions of Section 13.1 of the Agreement and “Lenders”
means each of Lenders or any one or more of them. Furthermore, with respect to (a) each provision
of this Agreement relating to the funding or participation in any Advances or Letters of Credit
denominated in Euros or the repayment or the reimbursement thereof by a Borrower in connection
therewith, (b) any rights of set-off, (c) any rights of indemnification or expense reimbursement
and (d) reserves, capital adequacy or other provisions, each reference to a Lender shall be deemed
to include such Lender’s Applicable Designee. Notwithstanding the designation by any Lender of an
Applicable Designee, Borrowers and Agent shall be permitted to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this Agreement;
provided that each Applicable Designee shall be subject to the provisions obligating or
restricting Lenders under this Agreement.







29









 








          “Lender Group” means each of Lenders (including the Issuing Lender and the Swing
Lender) and Agent, or any one or more of them.




          “Lender Group Expenses” means all (a) costs or expenses (including taxes, and
insurance premiums) required to be paid by any Borrower or any of its Subsidiaries under any of the
Loan Documents that are paid, advanced, or incurred by the Lender Group, (b) out-of-pocket fees or
charges paid or incurred by Agent in connection with the Lender Group’s transactions with any
Borrower or any of its Subsidiaries under any of the Loan Documents, including, fees or charges for
photocopying, notarization, couriers and messengers, telecommunication, public record searches
(including tax lien, litigation, and UCC searches and including searches with the patent and
trademark office, the copyright office, or the department of motor vehicles), filing, recording,
publication, appraisal (including periodic collateral appraisals or business valuations to the
extent of the fees and charges (and up to the amount of any limitation) contained in the Agreement
or the Fee Letter), real estate surveys, real estate title policies and endorsements, and
environmental audits, (c) out-of-pocket costs and expenses incurred by Agent in the disbursement of
funds to Borrowers or other members of the Lender Group (by wire transfer or otherwise), (d)
out-of-pocket charges paid or incurred by Agent resulting from the dishonor of checks payable by or
to any Loan Party, (e) reasonable out-of-pocket costs and expenses paid or incurred by the Lender
Group to correct any default or enforce any provision of the Loan Documents, or during the
continuance of an Event of Default, in gaining possession of, maintaining, handling, preserving,
storing, shipping, selling, preparing for sale, or advertising to sell the Collateral, or any
portion thereof, irrespective of whether a sale is consummated, (f) reasonable out-of-pocket audit
fees and expenses (including travel, meals, and lodging) of Agent related to any inspections or
audits to the extent of the fees and charges (and up to the amount of any limitation) contained in
the Agreement or the Fee Letter, (g) reasonable out-of-pocket costs and expenses of third party
claims or any other suit paid or incurred by the Lender Group in enforcing or defending the Loan
Documents or in connection with the Transactions or any transactions contemplated by the Loan
Documents or the Lender Group’s relationship with any Borrower or any of its Subsidiaries, (h)
Agent’s reasonable costs and expenses (including reasonable attorneys fees) incurred in advising,
structuring, drafting, reviewing, administering (including travel, meals, and lodging),
syndicating, or amending the Loan Documents, and (i) Agent’s and each Lender’s reasonable costs and
expenses (including reasonable attorneys, accountants, consultants, and other advisors fees and
expenses) incurred in terminating, enforcing (including attorneys, accountants, consultants, and
other advisors fees and expenses incurred in connection with a “workout,” a “restructuring,” or an
Insolvency Proceeding concerning any Borrower or any of its Subsidiaries or in exercising rights or
remedies under the Loan Documents), or defending the Loan Documents, irrespective of whether suit
is brought, or in taking any Remedial Action concerning the Collateral.




          “Lender Group Representatives” has the meaning specified therefor in Section
17.9 of the Agreement.




          “Lender-Related Person” means, with respect to any Lender, such Lender, together with
such Lender’s Affiliates, officers, directors, employees, attorneys, and agents.







30









 









          “Letter of Credit” means a letter of credit issued by Issuing Lender or a letter of
credit issued by Underlying Issuer, as the context requires, including each Existing Letter of
Credit.




          “Letter of Credit Collateralization” means either (a) Cash Collateralizing the Letters
of Credit, (b) causing the Letters of Credit to be returned to the Issuing Lender, or (c) providing
Agent with a standby letter of credit, in form and substance satisfactory to Agent in its Permitted
Discretion, from a commercial bank acceptable to Agent (in its sole discretion) in an amount equal
to the amount necessary to Cash Collateralize the Letters of Credit.




          “Letter of Credit Disbursement” means a payment made by Issuing Lender or Underlying
Issuer pursuant to a Letter of Credit.




          “Letter of Credit Usage” means, as of any date of determination, the aggregate undrawn
amount of all outstanding Letters of Credit.




          “LIBOR Deadline” has the meaning specified therefor in Section 2.12(b)(i) of
the Agreement.




          “LIBOR Notice” means a written notice in the form of Exhibit L-1.




          “LIBOR Option” has the meaning specified therefor in Section 2.12(a) of the
Agreement.




          “LIBOR Rate” means the rate per annum rate determined by Agent pursuant to the
following formula:





	 	 	 	 	 	 	 

	LIBOR Rate

	 	=
	 	LIBOR Base Rate
	 	 
	 	 	 	 	 
	 	 	1.00-LIBOR Reserve Percentage	 	 









     “LIBOR Base Rate” means the rate per annum equal to the rate appearing on
Bloomberg L.P.’s (the “Service”) Page BBAM1/(Official BBA Libor Fixings) (or on any
successor or substitute page of such Service, or any successor to or substitute for such
Service) at approximately 11:00 a.m. (London time), 2 Business Days prior to the
commencement of the requested Interest Period, for deposits in Dollars or Euros, for (a) a
term and in an amount comparable to the Interest Period and the amount of the LIBOR Rate
Loan requested and (b) the currency requested (whether as an initial LIBOR Rate Loan or as
a continuation of a LIBOR Rate Loan or as a conversion of a Base Rate Loan to a LIBOR Rate
Loan) by Borrowers in accordance with the Agreement, which determination by the Agent shall
be conclusive in the absence of manifest error.




     “LIBOR Reserve Percentage” means, for any day during any Interest Period, the
reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on
such day applicable to member banks under regulations issued from time to time by the FRB
for determining the maximum reserve requirement (including any emergency, supplemental or
other marginal reserve requirement) with respect to LIBOR Rate Loans (currently referred to
as “Eurocurrency liabilities”). The LIBOR Rate for each



31









 






outstanding LIBOR Rate Loan shall be adjusted automatically as of the effective date of
any change in the LIBOR Reserve Percentage.



          “LIBOR Rate Loan” means each portion of an Advance (other than a Base Rate Loan) that
bears interest at a rate determined by reference to the LIBOR Rate.




          “LIBOR Reference Rate” means, at any time during a calendar month, the rate per annum
equal to the rate appearing on Bloomberg L.P.’s (the “Service”) Page BBAM1/(Official BBA
Libor Fixings) (or on any successor or substitute page of such Service, or any successor to or
substitute for such Service), at approximately 11:00 a.m. (London time), on the first Business Day
of that calendar month, for deposits in Dollars or Euros (for delivery on such Business Day), for
(a) a term of one month and in an amount comparable to the amount of the Floating Rate Loan
requested and (b) the currency requested by Borrowers in accordance with the Agreement, which
determination by the Agent shall be conclusive in the absence of manifest error. If such rate is
not available at such time for any reason, then “LIBOR Reference Rate” at any time during a
calendar month shall be the rate per annum determined by Wells Fargo based upon various factors
including Wells Fargo’s cost of funds and desired return, general economic conditions and other
relevant factors.




          “Licensor Agreement” means a licensor agreement in form and substance satisfactory to
Agent in its Permitted Discretion, as amended, restated, supplemented, or otherwise modified from
time to time.




          “Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, charge,
deposit arrangement, encumbrance, easement, lien (statutory or other), security interest,
hypothecation, or other security arrangement and any other preference, priority, or preferential
arrangement of any kind or nature whatsoever, including any conditional sale contract or other
title retention agreement, the interest of a lessor under a Capital Lease and any synthetic or
other financing lease having substantially the same economic effect as any of the foregoing.




          “Loan Account” has the meaning specified therefor in Section 2.9 of the
Agreement.




          “Loan Documents” means the Agreement, the Intercreditor Agreement, any Borrowing Base
Certificate, each of the Security Documents, the Fee Letter, each Guaranty, the Intercompany
Subordination Agreement, the Letters of Credit, any note or notes executed by any Borrower in
connection with the Agreement and payable to any member of the Lender Group, any letter of credit
application entered into by any Borrower in connection with the Agreement, and any other agreement
entered into, now or in the future, by any Borrower or any of its Subsidiaries and any member of
the Lender Group in connection with the Agreement (excluding any Bank Product Agreement).




          “Loan Parties” means the Borrowers and the Guarantors.




          “Mandatory Cost” means the percentage rate per annum calculated by the Agent in
accordance with Schedule 1.1A.







32









 








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




          “Material Adverse Change” means (a) a material adverse change in the business,
operations, results of operations, assets, liabilities or financial condition of the Company and
its Subsidiaries, taken as a whole, (b) a material adverse effect on the Company and its
Subsidiaries ability, taken as a whole, to perform their obligations under the Loan Documents to
which they are parties or of the Lender Group’s ability to enforce the Obligations or realize upon
the Collateral, or (c) a material adverse effect on the enforceability or priority of Agent’s Liens
with respect to the Collateral as a result of an action or failure to act on the part of any Loan
Party.




          “Material Contract” means a contract to which any Loan Party or its Restricted
Subsidiaries is a party (other than the Loan Documents) (a) which is deemed to be a material
contract as provided in Item 601 of Regulation S-K promulgated by the Securities and Exchange
Commission under the Securities Act of 1933, as amended or (b) for which breach, termination,
cancellation, nonperformance or failure to renew could reasonably be expected to result in a
Material Adverse Change.




          “Maturity Date” has the meaning specified therefor in Section 3.3 of the
Agreement.




          “Maximum Revolver Amount” means $200,000,000, decreased by the amount of reductions in
the Revolver Commitments made in accordance with Section 2.4(c) of the Agreement or
increased pursuant to Section 2.17.




          “Moody’s” has the meaning specified therefor in the definition of Cash Equivalents.




          “Mortgage Policy” has the meaning specified therefor in Schedule 3.1.




          “Mortgages” means, individually and collectively, one or more mortgages, deeds of
trust, or deeds to secure the US Obligations, executed and delivered by the US Loan Parties in
favor of Agent, in form and substance satisfactory to Agent in its Permitted Discretion, that
encumber the Real Property Collateral.




          “Multiemployer Plan” means (i) any plan, as defined in Section 4001(a)(3) of ERISA,
which is maintained or contributed to (or to which there is an obligation to contribute to) by the
Company or a Subsidiary of the Company or an ERISA Affiliate and that is subject to Title IV of
ERISA, and (ii) each such plan for the five year period immediately following the latest date on
which the Company, a Subsidiary of the Company or an ERISA Affiliate maintained, contributed to or
had an obligation to contribute to such plan.




          “Net Cash Proceeds” means, with respect to any sale or disposition by a Loan Party of
any Collateral, the amount of cash proceeds received (directly or indirectly) from time to time
(whether as initial consideration or through the payment of deferred consideration) by or on behalf
of such Loan Party, in connection therewith after deducting therefrom only (a) the amount of any
Indebtedness secured by any Permitted Lien on any Collateral (other than (i) Indebtedness owing to
Agent or any Lender under the Agreement or the other Loan Documents and






33









 







(ii) Indebtedness assumed by the purchaser of such asset) which is required to be, and is, repaid
in connection with such sale or disposition, (b) reasonable fees (including attorneys’ fees),
commissions, and expenses related thereto and required to be paid by such Loan Party in connection
with such sale or disposition and (c) taxes paid or payable to any taxing authorities by such Loan
Party in connection with such sale or disposition, in each case to the extent, but only to the
extent, that the amounts so deducted are, at the time of receipt of such cash, actually paid or
payable to a Person that is not an Affiliate of any Borrower or any of its Subsidiaries, and are
properly attributable to such transaction.




          “Net Income” means, for any period, the aggregate net income (or loss) of the Company
and its Subsidiaries for such period on a consolidated basis and attributable to the Company and
its Subsidiaries (after giving effect to non-controlling interests), determined in accordance with
GAAP and prior to Preferred Stock dividends; provided that there shall be excluded from the
determination thereof any of the following:




          (a) after-tax gains or losses from the sale or disposition of assets or abandonments or
reserves relating thereto;




          (b) the net income or net loss of any Person accrued prior to the date it becomes a Subsidiary
of the Company or is merged or consolidated with the Company or any Subsidiary;




          (c) the net income (but not loss) of any Subsidiary of the Company to the extent that the
declaration of dividends or similar distributions by that Subsidiary of that income is restricted
by a contract, operation of law or otherwise (except to the extent of the amount of dividends or
distributions that have been paid to the Company or one or more Subsidiaries that were not subject
to any such restrictions during the relevant period);




          (d) the net income of any Person, other than a Subsidiary of the Company, except to the extent
of cash dividends or distributions paid to the Company or to a Subsidiary thereof by such Person;




          (e) the Company’s equity in the net loss of any Person that is not a Subsidiary, except to the
extent such net loss has been funded with cash from the Company or a Subsidiary;




          (f) income or loss attributable to discontinued operations (including, without limitation,
operations disposed of during such period whether or not such operations were classified as
discontinued);




          (g) the cumulative effect of a change in accounting principles;




          (h) any unrealized Statement of Financial Accounting Standards No. 133 gain or loss in respect
of Hedge Obligations;




          (i) any non-cash gains, losses or charges attributable to the early extinguishment of
Indebtedness;







34









 








          (j) any non-cash goodwill or intangible impairment charges resulting from the application of
Statement of Financial Accounting Standards No. 142 or Statement of Financial Accounting Standards
No. 144, and the amortization of intangibles arising pursuant to Statement of Financial Accounting
Standards No. 141;




          (k) any non-cash compensation charge or expense, including any such charge or expense arising
from grants of stock options or restricted stock or other equity incentive programs for the benefit
of officers, directors and employees of the Company or any Subsidiary;




          (l) costs or expenses incurred in connection with the litigation, resolution, compromise or
settlement of outstanding claims related to the Company’s reorganization under Chapter 11 of the
United States Bankruptcy Code;




          (m) costs or expenses related to the Transactions; and




          (n) any non-cash gains and losses due solely to fluctuations in currency values, and any
non-cash gains or losses due to the revaluation of warrants liability, in each case in accordance
with GAAP.




          “Net Liquidation Percentage” means the percentage of the book value of the Eligible
Loan Parties’ Inventory that is estimated to be recoverable in an orderly liquidation of such
Inventory net of all associated costs and expenses of such liquidation, such percentage to be as
determined from time to time by an appraisal company selected by Agent.




          “Non-cash Charges” means, for any period, the aggregate depreciation, amortization and
other non-cash expenses or charges of the Company and its Subsidiaries reducing Net Income for such
period, determined on a consolidated basis in accordance with GAAP (excluding any such charge which
represents an accrual of or a reserve for cash charges for any future period).




          “Non-Loan Party” means any Subsidiary of the Company that is not a Loan Party.




          “Noticed Bank Product Obligations” means (a) all Bank Product Obligations of Wells
Fargo and its Affiliates and (b) those Bank Product Obligations of other Bank Product Providers for
which Agent has received a Bank Product Provider Letter Agreement within 10 days after the date of
the provision of such Bank Product to a Borrower or its Subsidiaries, as such Noticed Bank Product
Obligations may be adjusted from time to time pursuant to a written report delivered in accordance
with the applicable Bank Product Provider Letter Agreement; provided that (i) no Noticed
Bank Product Obligations may be established or increased (A) at any time that an Event of Default
exists or (B) if a reserve in the amount of such established or increased Bank Product Obligations
would cause an Overadvance and (ii) for any Bank Product Obligations existing on the Closing Date,
Agent shall have received a Bank Product Provider Letter within 10 days after the Closing Date.




          “Obligations” means, collectively, the US Obligations and the Foreign Obligations.







35









 








          “OFAC” means The Office of Foreign Assets Control of the U.S. Department of the
Treasury.




          “Originating Lender” has the meaning specified therefor in Section 13.1(e) of
the Agreement.




          “Overadvance” has the meaning specified therefor in Section 2.5 of the
Agreement.




          “Participant” has the meaning specified therefor in Section 13.1(e) of the
Agreement.




          “Participant Register” has the meaning set forth in Section 13.1(i) of the
Agreement.




          “Participating Member State” means each state so described in any EMU Legislation.




          “Patent Security Agreement” has the meaning specified therefor in the Security
Agreement.




          “Patriot Act” has the meaning specified therefor in Section 4.18 of the
Agreement.




          “Payment Condition” means, with respect to the making of any Specified Event (a) both
the Excess Availability for the 30 consecutive days immediately preceding such Specified Event and
Excess Availability on the date thereof (each as calculated on a pro forma basis
after giving effect to such Specified Event) shall not be less than the greater of (i)
$50,000,000 and (ii) 25% of the Maximum Revolver Amount, (b) the Fixed Charge Coverage Ratio shall
be at least 1.00 to 1.00 (calculated on a pro forma basis after giving effect to
such Specified Event) and (c) no Default or Event of Default is continuing or would result from
such Specified Event.




          “Payoff Date” means the first date on which all of the Obligations (other than Bank
Product Obligations that, at such time, are not required to be repaid or cash collateralized in
accordance with Section 1.4) are paid in full and the Revolver Commitments of Lenders are
terminated.




          “PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Section
4002 of ERISA, or any successor thereto.




          “Permitted Acquisition” means any Acquisition so long as:




          (a) no Default or Event of Default is continuing or would result from the consummation of the
proposed Acquisition and the proposed Acquisition is consensual;




          (b) no Indebtedness will be incurred, assumed, or would exist with respect to any Borrower or
its Restricted Subsidiaries as a result of such Acquisition, other than






36









 







Indebtedness permitted under clauses (e) or (f) of the definition of Permitted Indebtedness
and no Liens will be incurred, assumed, or would exist with respect to the assets of any Borrower
or its Restricted Subsidiaries as a result of such Acquisition other than Permitted Liens;




          (c) the Company has provided Agent with an executive summary of the proposed Acquisition prior
to the anticipated closing date of the proposed Acquisition;




          (d) the assets being acquired (other than a de minimis amount of assets in relation to the
Company’s and its Restricted Subsidiaries’ total assets), or the Person whose Stock is being
acquired, are useful in or engaged in, as applicable, a Permitted Business;




          (e) the subject assets or Stock, as applicable, are being acquired directly by the Company or
one of its Subsidiaries, and, in connection therewith, the Company or the applicable Subsidiary
shall have complied with Section 5.12 and/or 5.13, as applicable, of the Agreement;




          (f) at least 5 Business Days prior to the anticipated closing date of the proposed
Acquisition, Agent shall have received a certificate of a Responsible Officer indicating whether
the Payment Condition has been satisfied (and attaching the calculations with respect thereto) or,
if not satisfied, demonstrating that the purchase consideration payable in respect of the proposed
Acquisition (including without limitation equity consideration, earn outs or deferred compensation
and the amount of Indebtedness and other liabilities assumed by the Loan Parties and their
Restricted Subsidiaries) is not in excess of the Basket Amount; and




          (g) promptly upon request, copies of the acquisition agreement and other material documents
relative to the proposed Acquisition.




          “Permitted Additional Pari Passu Obligations” has the meaning specified therefor in
the Senior Note Indenture.




          “Permitted Business” any business which (a) is the same, similar, ancillary or
reasonably related to the business in which the Company or any of its Restricted Subsidiaries is
engaged on the Closing Date or (b) is conducted by an acquired Person or business acquired pursuant
to a Permitted Acquisition and which does not qualify as a “Permitted Business” pursuant to
preceding clause (a), so long as (A) such business represents an immaterial portion of the
businesses acquired pursuant to such Permitted Acquisition and (B) such business is sold or
otherwise disposed of as soon as reasonably practicable following the consummation of such
Permitted Acquisition (but, in any event, within one year following such Permitted Acquisition).




          “Permitted Consignment Location” means any location where goods of the Company or any
of its Restricted Subsidiaries are placed on consignment with a third party consignee so long as
the book value of all such consigned goods at all such locations does not exceed $25,000,000 in the
aggregate at any time.




          “Permitted Discretion” means a determination made in the exercise of reasonable (from
the perspective of a secured lender) business judgment.




          “Permitted Dispositions” means:







37









 








          (a) sales of Inventory to buyers in the ordinary course of business;




          (b) the use, transfer, or liquidation, as applicable, of money or Cash Equivalents in a manner
that is not prohibited by the terms of the Agreement or the other Loan Documents;




          (c) the licensing or sub-licensing of Intellectual Property that does not interfere in any
material respect with the conduct of the business of the Company and its Restricted Subsidiaries so
long as such Intellectual Property is not required for the sale or other disposition of existing
Inventory or otherwise material to the operations of the Loan Parties;




          (d) the granting of Permitted Liens;




          (e) the sale or discount, in each case without recourse, of overdue Accounts arising in the
ordinary course of business, but only in connection with the compromise or collection thereof and
not as part of a financing transaction;




          (f) any involuntary loss, damage or destruction of property;




          (g) any involuntary condemnation, seizure or taking, by exercise of the power of eminent
domain or otherwise, or confiscation or requisition of use of property;




          (h) the leasing or subleasing of assets of any Borrower or its Restricted Subsidiaries that
does not interfere in any material respect with the conduct of the business of the Company and its
Restricted Subsidiaries so long as Agent’s security interest therein is not adversely affected
thereby;




          (i) the sale or issuance of Stock (other than Prohibited Preferred Stock) of the Company;




          (j) the lapse of registered Intellectual Property of the Company and its Restricted
Subsidiaries to the extent not economically desirable in the conduct of their business as
reasonably determined by the Company and so long as such lapse is not materially adverse to the
interests of Lenders;




          (k) the making of a Restricted Payment that is permitted to be made pursuant to the Agreement;




          (l) the making of an Investment that is permitted to be made pursuant to the Agreement;




          (m) the sale or disposition of Senior Note Priority Collateral; provided that no
Default or Event of Default is continuing or would result therefrom;




          (n) the sale, sale-leaseback, transfer, or disposition of fixed assets or interests therein in
connection with a Tax Abatement Transaction; provided that the fair market value of all
such property and assets does not exceed, at any one time outstanding, 7.5% of Total Assets of the
Company;







38









 








          (o) the expiration, in the ordinary course of business, or termination by the Company or any
of its Subsidiaries of leases and licenses of real or personal property (including Intellectual
Property) of the Company and its Subsidiaries where such Persons are the lessees or licensees with
respect thereto, where such expiration or termination could not reasonably be expected to cause a
Material Adverse Change;




          (p) sales, transfers, or other dispositions of assets (including, without limitation, Stock)
(i) among U.S. Loan Parties, (ii) among Foreign Loan Parties, (iii) among Non-Loan Parties that are
U.S. Subsidiaries, (iv) among Non-Loan Parties that are Foreign Subsidiaries, (v) by any Subsidiary
of the Company to any U.S. Loan Party, and (vi) by any Foreign Subsidiary of the Company to any
Foreign Loan Party so long as (A) no Default or Event of Default exists at the time of such sale or
disposition or would result therefrom and (B) any Collateral transferred shall be subject to the
security interests granted to the Agent to the same extent as would have be required had the
transferee originally owned such assets;




          (q) the sale or disposition of assets (other than Senior Note Priority Collateral, Borrowing
Base Collateral, Intellectual Property necessary or desirable for the sale of Inventory or any
material Intellectual Property) which, in the reasonable opinion of such Person, are obsolete,
uneconomic or worn out assets no longer used or useful in a Permitted Business;




          (r) the sale or disposition of subsurface mineral and oil and gas rights so long as such sale
or disposition does not materially interfere with or impair the use or operation the remaining real
property attached thereto;




          (s) the sale or disposition of (i) the closed industrial manufacturing facility located in
Over Hulton, England, and (ii) the closed assembly and distribution facility located in Padstow,
Australia; and




          (t) the sale or disposition of assets (including, without limitation, Stock) not otherwise
permitted above so long as (i) no Default or Event of Default is continuing or would result
therefrom, (ii) it is made at fair market value, (iii) if such assets (A) constitute Borrowing Base
Collateral or (B) consist of any Intellectual Property, the Company has provided an updated
Borrowing Base Certificate giving effect to such disposition and complied with Section
2.4(e), (iv) in the case of any sale or disposition of any Intellectual Property, such
Intellectual Property is not required for the sale or other disposition of existing Inventory or
otherwise material to the operations of the Loan Parties, and (v) the aggregate fair market value
of all assets disposed of in all such dispositions since the Closing Date (including the proposed
disposition) would not exceed $30,000,000;



provided that at least 75% of the consideration received for any sale or disposition
permitted pursuant to clauses (m), (q), (r), (s) or (t) of the definition of Permitted Disposition,
shall be in the form of cash and Cash Equivalents.




          “Permitted Indebtedness” means:




          (a) Indebtedness evidenced by the Agreement or the other Loan Documents, as well as
Indebtedness owed to Underlying Issuers with respect to Underlying Letters of Credit;







39









 








          (b) Indebtedness set forth on Schedule 4.19 and any Refinancing Indebtedness in
respect of such Indebtedness;




          (c) Permitted Purchase Money Indebtedness and any Refinancing Indebtedness in respect of such
Indebtedness;




          (d) endorsement of instruments or other payment items for deposit;




          (e) unsecured Indebtedness (excluding any Indebtedness consisting of intercompany loans among
the Company and its Subsidiaries, or any of them); provided that no Default or Event of
Default is continuing or would result from the incurrence thereof;




          (f) Acquired Indebtedness and any Refinancing Indebtedness in respect of such Acquired
Indebtedness, in an aggregate amount not to exceed $50,000,000 outstanding at any one time;




          (g) (i) Indebtedness of the Company or any of its Restricted Subsidiaries evidenced by
completion guarantees and performance and surety bonds (but excluding (A) such guarantees and bonds
issued to support other Indebtedness and (B) appeal, performance and other bonds and/or guaranties
issued in respect of obligations arising in connection with litigation, arbitration or similar
claims) incurred in the ordinary course of business for purposes of insuring the performance of the
Company or such Restricted Subsidiary of its contractual obligations and (ii) Indebtedness of the
Company or any of its Restricted Subsidiaries evidenced by appeal, performance and other bonds
and/or guaranties issued in respect of obligations arising in connection with litigation,
arbitration or similar claims for purposes of insuring the performance of the Company or such
Restricted Subsidiary in an aggregate amount not to exceed $20,000,000 at any time outstanding;




          (h) Indebtedness owed to any Person providing property, casualty, liability, or other
insurance to any Borrower or any of its Restricted Subsidiaries, so long as the amount of such
Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to
defer the cost of, such insurance for the year in which such Indebtedness is incurred and such
Indebtedness is outstanding only during such year;




          (i) the incurrence by any Borrower or any of its Restricted Subsidiaries of Indebtedness under
Hedge Agreements that are incurred for the bona fide purpose of hedging the interest rate,
commodity, or foreign currency risks associated with Company’s and its Restricted Subsidiaries’
operations and not for speculative purposes;




          (j) Indebtedness incurred in respect of credit cards, credit card processing services, debit
cards, stored value cards, purchase cards (including so-called “procurement cards” or “P-cards”),
or Cash Management Services, in each case, incurred in the ordinary course of business;




          (k) contingent liabilities in respect of any indemnification obligation, adjustment of
purchase price, non-compete, or similar obligations of the Company or the applicable Restricted
Subsidiary incurred in connection with the consummation of one or more Permitted Acquisitions;







40









 








          (l) Indebtedness consisting of intercompany loans among the Company and its Subsidiaries, or
any of them; provided that (i) such loan constitutes an Investment permitted under
Section 6.11, (ii) with respect to any such Indebtedness owed by a Loan Party, the parties
to such Indebtedness are parties to an Intercompany Subordination Agreement unless the execution
thereof is prohibited by Law and (iii) with respect to any such Indebtedness owed to a Loan Party,
such Indebtedness is evidenced by an Intercompany Note (unless the execution thereof is prohibited
by Law or would result in a material adverse tax consequence to the Company or its Subsidiaries)
or, if the Company has requested a waiver of the requirement to deliver such Intercompany Note,
such Indebtedness shall be evidenced by such other instrument or writing as shall be satisfactory
to the Agent in its Permitted Discretion;




          (m) 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 five Business Days of the incurrence thereof;




          (n) Indebtedness of Restricted Subsidiaries (that are (i) Non-Loan Parties and (ii) Foreign
Subsidiaries) under financing arrangements between any such Restricted Subsidiary and other Persons
(other than the Company or any of its Subsidiaries), the proceeds of which Indebtedness are used in
such Restricted Subsidiaries’ business; provided that the aggregate principal amount of all
such Indebtedness outstanding at any time shall not exceed $20,000,000;




          (o) Indebtedness of the Loan Parties evidenced by (i) the Senior Notes and Refinancing
Indebtedness in respect thereof in an aggregate principal amount not to exceed $675,000,000 at any
time outstanding less the aggregate amount of principal repayments and redemptions with respect
thereto made after the Closing Date and (ii) any Permitted Additional Pari Passu Obligations and
Refinancing Indebtedness in respect thereof to the extent permitted to be issued and outstanding
under the Senior Note Indenture as in effect on the date hereof (or under any agreement executed in
connection with a Permitted Refinancing of the Senior Notes); provided that (A) the
covenants, defaults and prepayment provisions of such Indebtedness are, taken as a whole, no more
onerous or restrictive in any material respect for any Borrower or Restricted Subsidiary than the
Senior Note Indenture as in effect as of the date hereof, (B) no Default or Event of Default exists
before or after giving effect to the incurrence thereof, and (C) such Indebtedness has no scheduled
amortization or payment of principal prior to the six-month anniversary of the Maturity Date; and




          (p) Indebtedness of Foreign Subsidiaries of the Company under bank guaranties and letters of
credit issued by financial institutions (on behalf of such Foreign Subsidiaries) and required by
governmental laws, orders and regulations in an aggregate amount not to exceed $15,000,000 at any
time, but solely to the extent a prospective beneficiary will not accept a Letter of Credit issued
hereunder.




          “Permitted Intercompany Investments” means Investments made by (a) a Loan Party to or
in another Loan Party, (b) a Non-Loan Party to or in another Non-Loan Party, (c) a Non-Loan Party
to or in a Loan Party, and (d) a Loan Party to or in a Non-Loan Party so long as (i) the aggregate
amount of such Investments does not exceed $25,000,000 outstanding at any one time and (ii) no
Default or Event of Default is continuing at the time of such Investment or






41









 







would result therefrom. Notwithstanding the foregoing, Investments made to or in a Restricted
Subsidiary which are permitted above may be made through any Unrestricted Subsidiary that is a
direct or indirect parent of such Restricted Subsidiary.




          “Permitted Investments” means:




          (a) Investments in cash and Cash Equivalents;




          (b) Investments in negotiable instruments deposited or to be deposited for collection in the
ordinary course of business;




          (c) advances made in connection with purchases of goods or services in the ordinary course of
business;




          (d) Investments received in settlement of amounts due to any Loan Party or any of its
Subsidiaries in the ordinary course of business in connection with the financial distress of an
Account Debtor or owing to any Loan Party or any of its Subsidiaries as a result of Insolvency
Proceedings involving an Account Debtor or upon the foreclosure or enforcement of any Lien in favor
of any Loan Party or any of its Subsidiaries;




          (e) Investments (including joint ventures) owned by any Loan Party or any of its Subsidiaries
on the Closing Date and set forth on Schedule P-1;




          (f) (i) guarantees permitted under the definition of Permitted Indebtedness and (ii) unsecured
guarantees of any obligations or liabilities of any Subsidiaries to the extent such obligations or
liabilities do not constitute Indebtedness;




          (g) Permitted Intercompany Investments;




          (h) Stock or other securities acquired in connection with the satisfaction or enforcement of
Indebtedness or claims due or owing to any Loan Party or any of its Subsidiaries (in bankruptcy of
customers or suppliers or otherwise outside the ordinary course of business) or as security for any
such Indebtedness or claims;




          (i) deposits of cash made in the ordinary course of business to secure performance of
operating leases;




          (j) non-cash loans to employees, officers, and directors of any Borrower or any of its
Subsidiaries for the purpose of purchasing Stock in the Company so long as the proceeds of such
loans are used in their entirety to purchase such stock in the Company;




          (k) Permitted Acquisitions;




          (l) Investments resulting from entering into (i) Bank Product Agreements, or (ii) agreements
relative to Indebtedness that is permitted under clause (j) of the definition of Permitted
Indebtedness;







42









 








          (m) Investments held by a Person acquired in a Permitted Acquisition to the extent that such
Investments were not made in contemplation of or in connection with such Permitted Acquisition and
were in existence on the date of such Permitted Acquisition;




          (n) Investments by the Company on the Closing Date in one or more of its Foreign Subsidiaries
from the proceeds of the Senior Notes solely for the purpose of prepaying outstanding Indebtedness
on the Closing Date;




          (o) loans by the Company and its Subsidiaries to officers, employees and directors of the
Company and its Subsidiaries in an aggregate outstanding principal amount not to exceed $2,000,000
at any time outstanding;




          (p) Investments in the form of non-cash consideration issued by the purchaser of assets in
connection with a sale or disposition of such assets pursuant to clauses (m), (q), (r), (s) or (t)
of the definition of “Permitted Dispositions”;




          (q) Investments made in connection with a Tax Abatement Transaction in an aggregate amount not
to exceed, at any one time outstanding, 7.5% of Total Assets of the Company;




          (r) so long as no Default or Event of Default is continuing or would result therefrom,
additional Investments in an aggregate amount not to exceed, at any time outstanding, the Basket
Amount; and




          (s) Investments in any Foreign Subsidiary in the form of (i) contributions or other transfers
of Stock of any other Foreign Subsidiary (other than any Foreign Loan Party, unless in connection
with such contribution or transfer the Agent shall, have been granted a valid and perfected
security interest in the Stock of such Foreign Loan Party with the same priority as the Agent had
prior to such contribution or transfer pursuant to documentation in form and substance satisfactory
to Agent) described on Schedule 4.1(c) as of the Closing Date, (ii) during such time as the
Specified Restructuring Condition is satisfied, contributions or other transfers of intercompany
Indebtedness owed by any other Foreign Subsidiary described on Schedule P-1 as of the
Closing Date, or (iii) during such time as the Specified Restructuring Condition is satisfied,
forgiveness or capitalization of intercompany Indebtedness owed by such Foreign Subsidiary
described on Schedule P-1 as of the Closing Date.




          “Permitted Liens” means:




          (a) Liens granted to, or for the benefit of, Agent to secure the Obligations;




          (b) Liens for unpaid taxes, assessments, or other governmental charges or levies that either
(i) are not yet delinquent, or (ii) do not have priority over Agent’s Liens and the underlying
taxes, assessments, or charges or levies are the subject of Permitted Protests;




          (c) Liens (i) arising from judgments, orders, awards, decrees or attachments in circumstances
not constituting an Event of Default under Section 8.3 of the Agreement or (ii) arising in
connection with the deposit or payment of cash or other property with or to any court or other
governmental authority in connection with any pending claim or litigation






43









 







provided that the fair market value of all property (including cash) pledged, paid and/or deposited pursuant
to this clause (c)(ii) shall not exceed $20,000,000 at any time;




          (d) Liens set forth on Schedule P-2; provided, however, that, to the
extent such Liens secure Indebtedness, to qualify as a Permitted Lien, any such Lien described on
Schedule P-2 shall only secure the Indebtedness that it secures on the Closing Date and any
Refinancing Indebtedness in respect thereof;




          (e) the interests of lessors under operating leases and licensors under license agreements;




          (f) purchase money Liens or the interests of lessors under Capital Leases to the extent that
such Liens or interests secure Permitted Purchase Money Indebtedness and so long as (i) such Lien
attaches only to the asset purchased or acquired and the proceeds thereof, and (ii) such Lien only
secures the Indebtedness that was incurred to acquire the asset purchased or acquired or any
Refinancing Indebtedness in respect thereof;




          (g) Liens arising by operation of law in favor of warehousemen, landlords, carriers,
mechanics, materialmen, laborers, or suppliers, incurred in the ordinary course of business and not
in connection with the borrowing of money, and which Liens either (i) are for sums not yet
delinquent, (ii) are the subject of Permitted Protests or (iii) do not materially detract from the
value of such property or materially impair the use thereof in the operation of the Company’s or
its Subsidiaries’ business;




          (h) Liens on amounts deposited to secure Company’s and its Restricted Subsidiaries’
obligations in connection with workers’ compensation insurance unemployment insurance or other
types of social security;




          (i) Liens on amounts deposited to secure the Company’s and its Restricted Subsidiaries’
obligations in connection with the making or entering into of bids, tenders, or leases in the
ordinary course of business and not in connection with the borrowing of money;




          (j) Liens on amounts deposited to secure the Company’s and its Restricted Subsidiaries’
obligations with respect to statutory obligations (exclusive of obligations described in preceding
clauses (b) or (h) of this definition above), surety and customs bonds, statutory bonds, government
contracts, trade contracts, performance bonds, stay or appeal bonds, and other similar obligations
incurred in the ordinary course of business (exclusive of obligations in respect of litigation,
arbitration or similar claims or otherwise of the types described in clauses (c), (g) or (i) of
this definition above);




          (k) (i) with respect to any Real Property, (A) easements, rights of way, encroachments, zoning
restrictions and similar charges or encumbrances, and minor defects in title, and (B) Liens in
connection with subsurface mineral and oil and gas rights, in each case, that do not materially
interfere with or impair the use or operation thereof, and (ii) any exceptions on the Mortgage
Policies issued in connection with the Mortgages;




          (l) license of Intellectual Property rights that do not interfere in any material respect with
the business of the Company and its Restricted Subsidiaries and such Intellectual






44









 







Property is not required for the sale or other disposition of existing Inventory or otherwise
material to the operations of the Loan Parties;




          (m) Liens that are replacements of Permitted Liens to the extent that the original
Indebtedness is the subject of Refinancing Indebtedness permitted under the Agreement and so long
as the replacement Liens only encumber those assets that secured the original Indebtedness;




          (n) rights of setoff or bankers’ liens upon deposits of cash in favor of banks or other
depository institutions, solely to the extent incurred in connection with the maintenance of such
deposit accounts in the ordinary course of business;




          (o) Liens granted in the ordinary course of business on the unearned portion of insurance
premiums securing the financing of insurance premiums to the extent the financing is permitted
under the definition of Permitted Indebtedness;




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




          (q) Liens solely on any cash earnest money deposits made by any Borrower or any of its
Restricted Subsidiaries in connection with any letter of intent or purchase agreement with respect
to a Permitted Acquisition;




          (r) Liens assumed by a Borrower or its Restricted Subsidiaries in connection with a Permitted
Acquisition that secure Acquired Indebtedness; provided that (i) the aggregate principal
amount of the Indebtedness, if any, secured by such Liens does not increase from that amount
outstanding at the time of any such renewal, replacement or extension and (ii) any such renewal,
replacement or extension does not encumber any additional assets or properties of the Company or
any of its Restricted Subsidiaries;




          (s) Liens on cash and Cash Equivalents securing Indebtedness permitted under clause (i) of the
definition of Permitted Indebtedness;




          (t) Liens on cash securing Indebtedness permitted under clause (j) of the definition of
Permitted Indebtedness or any other obligations with respect to credit cards, credit card
processing services, debt cards, stored value cards, purchase cards, procurement cards or Cash
Management Services, as to which the aggregate amount of such Indebtedness or other obligations
secured thereby does not exceed $10,000,000;




          (u) Liens on (i) assets (other than ABL Priority Collateral or any Foreign Collateral) in
connection with a Tax Abatement Transaction and (ii) Government Grant Property in favor of the
related U.S. Governmental Authority;




          (v) Liens securing Indebtedness permitted under clause (n) of the definition of Permitted
Indebtedness, so long as any such Liens attach only to the assets of the relevant Non-Loan Party
incurring (or guaranteeing) such Indebtedness;







45









 








          (w) (i) Liens securing Indebtedness permitted under clause (o)(i) of the definition of
Permitted Indebtedness, and (ii) Liens securing Indebtedness permitted under clause (o)(ii) of the
definition of Permitted Indebtedness, provided that if any such Indebtedness is secured by
any of the Collateral, the holders of such Indebtedness shall have entered into a joinder to the
Intercreditor Agreement or such other documentation reasonably satisfactory to the Agent agreeing
on behalf of itself and such holders to be bound by the terms thereof and to have the same rights
and obligations thereunder as holders of the Senior Notes in the case of Indebtedness permitted
under clause (o)(i) of the definition of Permitted Indebtedness;




          (x) Liens arising from or related to precautionary UCC or like personal property security
financing statements regarding operating leases (if any) entered into by the Company and its
Subsidiaries;




          (y) (i) Liens on goods located at a Permitted Consignment Location and (ii) other restrictions
consistent with past practices on the sale or distribution of designated goods pursuant to
agreements with customers under which such goods is consigned by the customer or such goods is
designated for sale to one or more customers;




          (z) Liens on cash or Cash Equivalents irrevocably deposited on or before the Closing Date with
or at the direction of the trustee or paying agent with respect thereto or any other Person (other
than the Company or any Affiliate thereof) designated in accordance with the terms of the Existing
Senior Secured Notes, in the amount of the outstanding Indebtedness under the Existing Senior
Secured Notes (together with accrued interest and interest which accrues up to and including the
due date of such Indebtedness), for the purpose of discharging, redeeming or otherwise paying in
full the Existing Senior Secured Notes (whether pursuant to a tender offer, optional redemption, or
otherwise);




          (aa) Liens arising pursuant to retention of title arrangements in favor of suppliers incurred
in the ordinary course of business and not in connection with the borrowing of money, securing
obligations in an aggregate amount not to exceed $500,000 at any one time; and




          (bb) other Liens on assets (other than Borrowing Base Collateral or Intellectual Property
required for the sale of Inventory of any Loan Party) as to which the aggregate amount of the
obligations secured thereby does not exceed $10,000,000.




          “Permitted Preferred Stock” means and refers to any Preferred Stock issued by the
Company (and not by one or more of its Subsidiaries) that is not Prohibited Preferred Stock.




          “Permitted Protest” means the right of any Borrower or any of its Subsidiaries to
protest any Lien (other than any Lien that secures the Obligations), taxes (other than payroll
taxes or taxes that are the subject of a United States federal tax lien), or rental or bailee
payment, provided that (a) a reserve with respect to such obligation is established on Company’s or
its Subsidiaries’ books and records in such amount as is required under GAAP, (b) any such protest
is instituted promptly and prosecuted diligently by the Company or its Subsidiary, as applicable,
in good faith, and (c) Agent is satisfied that, while any such protest is pending, there will be no
impairment of the enforceability, validity, or priority of any of Agent’s Liens.







46









 








          “Permitted Purchase Money Indebtedness” means, as of any date of determination,
Purchase Money Indebtedness incurred after the Closing Date in an aggregate principal amount
outstanding at any one time not in excess of $25,000,000.




          “Permitted Restricted Payments” means:




          (a) (i) any Subsidiary of the Company may make Restricted Payments to the Company or any
Wholly-Owned Subsidiary of the Company and (ii) any non-Wholly-Owned Subsidiary of the Company may
pay cash Restricted Payments to its shareholders generally so long as the Company or its respective
Subsidiary which owns the Stock in the Subsidiary paying such Restricted Payments receives at least
its proportionate share thereof (based upon its relative holding of the Stock in the Subsidiary
paying such Restricted Payments and taking into account the relative preferences, if any, of the
various classes of Stock of such Subsidiary and any requirements imposed by applicable Law);
provided that any Restricted Payment made by a Loan Party pursuant to preceding clause (i)
to a Wholly-Owned Subsidiary that is not a Loan Party may only be made if (1) no Default or Event
of Default is continuing or would result therefrom and (2) such Wholly-Owned Subsidiary promptly
distributes and/or transfer any assets received pursuant to such Restricted Payment (directly or
indirectly through other Wholly-Owned Subsidiaries) to a Loan Party;




          (b) the Company may redeem or purchase shares of the Company’s common Stock or options to
purchase the Company’s common Stock, as the case may be, held by former officers or employees of
the Company or any of its Subsidiaries following the death, disability, retirement or termination
of employment of such officers or employees, provided that (i) the only consideration paid
by the Company in respect of such redemptions and/or purchases shall be cash, and (ii) the
aggregate amount paid by the Company in cash in respect of all such redemptions and/or purchases
shall not exceed $1,000,000 in any fiscal year of the Company;




          (c) the Company may pay regularly scheduled Restricted Payments on its Permitted Preferred
Stock pursuant to the terms thereof solely through the issuance of additional shares of such
Preferred Stock rather than in cash;




          (d) so long as no Default or Event of Default is continuing or would result therefrom,
additional Restricted Payments in an aggregate amount not to exceed the Basket Amount; and




          (e) Restricted Payments made to any Foreign Subsidiary in the form of (i) distributions or
other transfers of Stock of any other Foreign Subsidiary (other than any Foreign Loan Party, unless
in connection with such distribution or transfer the Agent shall have been granted a valid and
perfected security interest in the Stock of such Foreign Loan Party with the same priority as the
Agent had prior to such distribution or transfer pursuant to documentation in form and substance
satisfactory to Agent) described on Schedule 4 1(c) as of the Closing Date, (ii) during
such time as the Specified Restructuring Condition is satisfied, distributions or other transfers
of intercompany Indebtedness owed by any other Foreign Subsidiary described on Schedule P-1
as of the Closing Date, or (iii) during such time as the Specified Restructuring Condition is
satisfied, forgiveness or capitalization of intercompany




47









 







Indebtedness owed by such Foreign
Subsidiary described on Schedule P-1 as of the Closing Date.




          Notwithstanding the foregoing, Restricted Payments made to or in a Restricted Subsidiary which
are permitted above may be made through any Unrestricted Subsidiary.




          “Person” means natural persons, corporations, limited liability companies, limited
partnerships, general partnerships, limited liability partnerships, joint ventures, trusts, land
trusts, business trusts, or other organizations, irrespective of whether they are legal entities,
and governments and agencies and political subdivisions thereof.




          “Plan” means any pension plan as defined in Section 3(2) of ERISA (other than a
Multiemployer Plan), which is maintained or contributed to (or to which there is an obligation to
contribute to) by the Company or a Subsidiary of the Company or an ERISA Affiliate, and each such
plan for the five year period immediately following the latest date on which the Company, or a
Subsidiary of the Company or an ERISA Affiliate maintained, contributed to or had an obligation to
contribute to such plan.




          “Pledgor” means (a) EH International LLC, a Delaware limited liability company and (b)
each Foreign Subsidiary that (i) is not a Foreign Loan Party and (ii) directly owns Stock in a
Foreign Guarantor. A Pledgor may be an Unrestricted Subsidiary; provided that the requirements of
Section 5.18 are satisfied.




          “Post Closing Period” means, with respect to any Control Agreement or Cash Management
Arrangements, the 90 day period following the Closing Date (or such longer period as may be agreed
to by Agent in its sole discretion) or, if a Cash Dominion Period is in effect, such shorter period
as the Loan Parties are able to deliver such Control Agreements or Cash Management Arrangements
using commercially reasonable efforts.




          “PPSA” means the Personal Property Security Act as in effect in the Provinces of Nova
Scotia and Ontario, the Civil Code of Quebec as in effect in the Province of Quebec or any other
provincial statute pertaining to the granting, perfecting, priority or ranking of security
interests, liens, hypothecs on personal property and any successor statutes, together with any
regulations thereunder, in each case as in effect from time to time.




          “Preferred Stock” means, as applied to the Stock of any Person, the Stock of any class
or classes (however designated) that is preferred with respect to the payment of dividends, or as
to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over shares of Stock of any other class of such Person.




          “Priority Payables” means, as to any Borrower or Foreign Guarantor at any time, the
full amount of the liabilities of any Borrower or Foreign Guarantor which are due or may become due
to any Governmental Authority or other Person pursuant to any applicable law, rule or regulation,
in respect of (a) government royalties or pension fund obligations, (b) unemployment insurance,
unpaid wages, severance pay or termination pay owing to employees, (c) goods and services taxes,
sales taxes, employee income taxes and other taxes payable or to be remitted or withheld, (d)
workers’ compensation, (e) vacation pay, (f) claims for unremitted




48









 







and/or accelerated rents, (g)
wages, withholding taxes, VAT and other amounts payable to an insolvency administrator, and (h)
other like charges and demands, in each case, to the extent any Governmental Authority or other
Person is permitted to claim a security interest, lien, trust or
other claim ranking or capable of ranking senior in priority to or pari passu with one or more
of the Liens granted in the Security Documents or such security interest, lien, trust or other
claim arises under applicable Law.




          “Prohibited Preferred Stock” means any Preferred Stock that by its terms is
mandatorily redeemable or subject to any other payment obligation (including any obligation to pay
dividends, other than dividends of shares of Preferred Stock of the same class and series payable
in kind or dividends of shares of common stock) on or before a date that is less than 1 year after
the Maturity Date, or, on or before the date that is less than 1 year after the Maturity Date, is
redeemable at the option of the holder thereof for cash or assets or securities (other than
distributions in kind of shares of Preferred Stock of the same class and series or of shares of
common stock).




          “Projections” means the Closing Date Projections and any other detailed projected
consolidated financial statements of the Company including (a) balance sheets, (b) profit and loss
statements, and (c) cash flow statements, all prepared on a basis consistent with Borrowers’
historical financial statements, together with appropriate supporting details and a statement of
underlying assumptions.




          “Pro Rata Share” means, as of any date of determination:




          (a) with respect to a Lender’s obligation to make Advances and right to receive payments of
principal, interest, fees, costs, and expenses with respect thereto, (i) prior to the Revolver
Commitments being terminated or reduced to zero, the percentage obtained by dividing (x) such
Lender’s Revolver Commitment, by (y) the aggregate Revolver Commitments of all Lenders, and (ii)
from and after the time that the Revolver Commitments have been terminated or reduced to zero, the
percentage obtained by dividing (x) the outstanding principal amount of such Lender’s Advances by
(y) the outstanding principal amount of all Advances; and




          (b) with respect to a Lender’s obligation to participate in Letters of Credit and
Reimbursement Undertakings, to reimburse the Issuing Lender, and right to receive payments of fees
with respect thereto, (i) prior to the Revolver Commitments being terminated or reduced to zero,
the percentage obtained by dividing (x) such Lender’s Revolver Commitment, by (y) the aggregate
Revolver Commitments of all Lenders, and (ii) from and after the time that the Revolver Commitments
have been terminated or reduced to zero, the percentage obtained by dividing (x) the outstanding
principal amount of such Lender’s Advances by (y) the outstanding principal amount of all Advances;
provided, however, that if all of the Advances have been repaid in full and Letters of Credit
remain outstanding, Pro Rata Share under this clause shall be determined based upon subclause
(i) of this clause as if the Revolver Commitments had not been terminated or reduced to zero
and based upon the Revolver Commitments as they existed immediately prior to their termination or
reduction to zero.




          “Protective Advances” has the meaning specified therefor in Section 2.3(d)(i)
of the Agreement.




49









 








          “Purchase Money Indebtedness” means Indebtedness (other than the Obligations, but
including Capitalized Lease Obligations), incurred at the time of, or within 30 days after, the
acquisition of any fixed assets for the purpose of financing all or any part of the
acquisition cost thereof.




          “Qualified Foreign Jurisdiction” means Australia, Canada, England and Wales, and New
Zealand.




          “Qualified Jurisdiction” means the United States or any Qualified Foreign
Jurisdiction.




          “Real Property” means any estates or interests in real property now owned, leased or
hereafter acquired by Borrowers or their Subsidiaries and the improvements thereto.




          “Real Property Collateral” means (a) the Real Property identified on Schedule
R-1 and (b) any Real Property hereafter acquired by any US Loan Party for which a Mortgage is
required to be executed and delivered pursuant to Section 5.12(c).




          “Record” means information that is inscribed on a tangible medium or that is stored in
an electronic or other medium and is retrievable in perceivable form.




          “Reference Period” means, on any date of determination, the period of twelve
consecutive months ending on or immediately prior to such date of determination.




          “Refinancing Indebtedness” means refinancings, renewals, exchanges or extensions of
Indebtedness so long as:




          (a) such refinancings, renewals, exchanges or extensions do not result in an increase in the
principal amount of the Indebtedness so refinanced, renewed, exchanged or extended, other than by
the amount of premiums paid thereon and the fees and expenses incurred in connection therewith and
by the amount of unfunded commitments with respect thereto;




          (b) such refinancings, renewals, exchanges or extensions do not result in a shortening of the
average weighted maturity (measured as of the refinancing, renewal, exchange or extension) of the
Indebtedness so refinanced, renewed, exchanged or extended, nor are they on terms or conditions
that, taken as a whole, are less favorable in any material respect to the Loan Parties, taken as a
whole, than those of the Indebtedness being refinanced or extended;




          (c) if the Indebtedness that is refinanced, renewed, exchanged or extended was subordinated in
right of payment to the Obligations, then the terms and conditions of the refinancing, renewal,
exchange or extension must include subordination terms and conditions that are at least as
favorable to the Lender Group as those that were applicable to the refinanced, renewed, or extended
Indebtedness;




          (d) the Indebtedness that is refinanced, renewed, exchanged or extended is not recourse to any
Person that is liable on account of the Obligations other than those Persons which were obligated
with respect to the Indebtedness that was refinanced, renewed, exchanged or extended; and







50









 








          (e) no Default or Event of Default is continuing or would result from such refinancing,
renewal, exchange or extension.




          “Register” has the meaning set forth in Section 13.1(h) of the Agreement.




          “Registered Loan” has the meaning set forth in Section 13.1(h) of the
Agreement.




          “Regulation S-X” means Article 11 of Regulation S-X promulgated under the Securities
Act and as interpreted by the staff of the SEC, as amended from time to time.




          “Reimbursement Undertaking” has the meaning specified therefor in Section
2.11(a) of the Agreement.




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




          “Related Municipal Party” means the U.S. Governmental Authority party to a Tax
Abatement Transaction and, if applicable, any trustee with respect to such Tax Abatement
Transaction.




          “Remedial Action” means all actions taken to (a) clean up, remove, remediate, contain,
treat, monitor, assess, evaluate, or in any way address Hazardous Materials in the indoor or
outdoor environment, (b) prevent or minimize a release or threatened release of Hazardous
Materials, (c) restore or reclaim natural resources or the environment, (d) perform any
pre-remedial studies, investigations, or post-remedial operation and maintenance activities, or (e)
conduct any other actions with respect to Hazardous Materials required by Environmental Laws.




          “Rent Reserve” means, a reserve established by Agent in an amount of up to three
months rent payments made by any Loan Party for each facility at which Eligible Inventory (but for
the establishment of Rent Reserves hereunder) of such Loan Party is located, in each case, that is
not subject to a Collateral Access Agreement (as reported to Agent by the Company from time to time
as requested by Agent), as such amount may be adjusted from time to time by Agent in its Permitted
Discretion (but limited to an amount not in excess of three months’ rent) taking into account any
statutory provisions detailing the extent to which landlords may make claims against Inventory
located thereon.




          “Replacement Lender” has the meaning specified therefor in Section 2.13(b) of
the Agreement.




          “Report” has the meaning specified therefor in Section 15.16 of the Agreement.




          “Reportable Event” means an event described in Section 4043(c) of ERISA with respect
to a Plan that is subject to Title IV of ERISA other than those events as to which the 30-day
notice period under ERISA has been waived under subsection .22, .23, .25, .27, or .28 of PBGC
Regulation Section 4043.







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          “Required Lenders” means, at any time, Lenders whose aggregate Pro Rata Shares
(calculated under clause (a) of the definition of Pro Rata Shares) exceed 50%; provided,
however, that at any time there are 2 or more Lenders, “Required Lenders” must include at
least 2 Lenders.




          “Responsible Officer” means the chief executive officer, corporate secretary, the
president, the controller, the chief financial officer, the treasurer or the general counsel of a
Loan Party, as applicable, or any other officer having substantially the same authority and
responsibility; or, with respect to compliance with financial covenants or delivery of financial
information, the chief financial officer, the controller or the treasurer of a Borrower, as
applicable, or any other officer having substantially the same authority and responsibility.




          “Restricted Debt Payment” means any payment, prepayment, redemption, defeasance,
purchase, or other acquisition of (a) any Indebtedness that is subordinated in right of payment to
the Obligations, (b) the Senior Notes (or any Refinancing Indebtedness in respect thereof) or any
Permitted Additional Pari Passu Obligations (or any Refinancing Indebtedness in respect thereof),
and (c) the Existing Senior Subordinated Notes.




          “Restricted Payment” means to (a) declare or pay any dividend or make any other
payment or distribution on account of Stock issued by the Company or any of its Restricted
Subsidiaries (including any payment in connection with any merger or consolidation involving the
Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of Stock issued
by the Company or any of its Restricted Subsidiaries in their capacity as such (other than
dividends or distributions payable in Stock (other than Prohibited Preferred Stock) issued by the
Company or any of its Restricted Subsidiaries), or (b) purchase, redeem, or otherwise acquire or
retire for value (including in connection with any merger or consolidation involving the Company or
any of its Restricted Subsidiaries) any Stock issued by the Company or any of its Restricted
Subsidiaries.




          “Restricted Subsidiary” means any Subsidiary of the Company that is not an
Unrestricted Subsidiary. On the Closing Date, the following Subsidiaries of the Company are
Restricted Subsidiaries: Dixie Metals Co. (Delaware), Refined Metals Corporation (Delaware), RBD
Liquidation LLC (Delaware), Exide Delaware, L.L.C. (Delaware), GNB Battery Technologies Japan, Inc.
(Delaware), EH International LLC (Delaware), Exide Illinois, Inc (Pennsylvania), Exide Australia
PTY Ltd (Australia), Exide Technologies Canada Corporation (Canada), Euro Exide Corporation Limited
(England), CMP Batteries Limited (England), Exide Technologies (Transportation) Limited (England),
CMP Batteries Pension Limited (England), Exide Global Holding Netherlands (C.V.) (Netherlands), and
Exide Technologies Ltd. (New Zealand).




          “Revaluation Date” means (a) with respect to any Advance denominated in Euros, each of
the following: (i) each date of a Borrowing of such Advance, (ii) each date of a continuation of
such Advance pursuant to Section 2.12, and (iii) such additional dates as Agent shall
determine or the Required Lenders shall require, and (b) with respect to any Letter of Credit
denominated in Euros, each of the following: (i) each date of issuance of such Letter of Credit,
(ii) each date of an amendment of such Letter of Credit having the effect of increasing the amount
thereof (solely with respect to the increased amount), (iii) each date of any payment by






52









 







the Issuing Lender under such Letter of Credit, and (iv) such additional dates as Agent or the
Issuing Lender shall determine or the Required Lenders shall require.




          “Revolver Commitment” means, with respect to each Lender, its Revolver Commitment,
and, with respect to all Lenders, their Revolver Commitments, in each case as such Dollar amounts
are set forth beside such Lender’s name under the applicable heading on Schedule C-1 or in
the Assignment and Acceptance pursuant to which such Lender became a Lender under the Agreement, as
such amounts may be reduced or increased from time to time pursuant to assignments made in
accordance with the provisions of Section 13.1 of the Agreement.




          “Revolver Usage” means US Revolver Usage plus Foreign Revolver Usage.




          “Sanctioned Entity” means (a) a country or a government of a country, (b) an agency of
the government of a country, (c) an organization directly or indirectly controlled by a country or
its government, (d) a Person resident in or determined to be resident in a country, in each case,
that is subject to a country sanctions program administered and enforced by OFAC.




          “Sanctioned Person” means a person named on the list of Specially Designated Nationals
maintained by OFAC.




          “S&P” has the meaning specified therefor in the definition of Cash Equivalents.




          “SEC” means the United States Securities and Exchange Commission and any successor
thereto.




          “Securities Account” means a securities account (as that term is defined in the Code).




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




          “Security Documents” means the US Security Documents and the Foreign Security
Documents.




          “Senior Noteholders” means the holders from time to time of the Senior Notes or the
Permitted Additional Pari Passu Obligations.




          “Senior Note Indenture” means that certain Indenture dated as of January 25, 2011 by
and between the Company and Wells Fargo Bank, National Association, as trustee, pursuant to which
Senior Notes are issued.




          “Senior Note Priority Collateral” has the meaning specified for the definition of
“Notes Priority Collateral” in the Intercreditor Agreement.




          “Senior Notes” means (a) the Closing Date Senior Notes and (b) the Exchange Senior
Notes.







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          “Settlement” has the meaning specified therefor in Section 2.3(e)(i) of the
Agreement.




          “Settlement Date” has the meaning specified therefor in Section 2.3(e)(i) of
the Agreement.




          “Solvent” means, with respect to any Person on a particular date, that, at fair
valuations, the sum of such Person’s assets is greater than all of such Person’s debts.




          “Specified Dutch Merger” means the merger, amalgamation, reorganization, consolidation
or liquidation of Exide Technologies Holding B.V. (Netherland) with and into Exide Technologies
B.V. (Netherlands), with Exide Technologies B.V. (Netherlands) being the surviving entity.




          “Specified Event” means the making of, or entering into, a Permitted Acquisition, an
Investment pursuant to Section 6.11(a)(ii), a Restricted Payment or a Restricted Debt
Payment.




          “Specified Restructuring Condition” means, with respect to the making of certain
Specified Restructurings (a) both the Excess Availability for the 30 consecutive days immediately
preceding such Specified Restructuring and Excess Availability on the date thereof (each as
calculated on a pro forma basis after giving effect to such Specified
Restructuring) shall not be less than the greater of (i) $50,000,000 and (ii) 25% of the
Maximum Revolver Amount and (b) no Default or Event of Default is continuing or would result from
such Specified Restructuring.




          “Specified Restructurings” means internal corporate restructurings effected through
any combination of Investments permitted by clause (s) of the definition of Permitted Investments
or Restricted Payments described in clause (e) of the definition of the Permitted Restricted
Payments.




          “Spot Rate” for a currency means the rate determined by Agent or the Issuing Lender,
as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the
purchase by such Person of such currency with another currency through its principal foreign
exchange trading office at approximately 11:00 a.m. (New York time) on the date two Business Days
prior to the date as of which the foreign exchange computation is made; provided that Agent
or the Issuing Lender may obtain such spot rate from another financial institution designated by
Agent or the Issuing Lender if the Person acting in such capacity does not have as of the date of
determination a spot buying rate for any such currency; and provided further that
the Issuing Lender may use such spot rate quoted on the date as of which the foreign exchange
computation is made in the case of any Letter of Credit denominated in Euros.




          “Stock” means all shares, options, warrants, interests, participations, or other
equivalents (regardless of how designated) of or in a Person, whether voting or nonvoting,
including common stock, preferred stock, or any other “equity security” (as such term is defined in
Rule 3a11-1 of the General Rules and Regulations promulgated by the SEC under the Exchange Act).







54









 








          “Subsidiary” of a Person means a corporation, partnership, limited liability company,
or other entity in which that Person directly or indirectly owns or controls the shares of Stock
having ordinary voting power to elect a majority of the board of directors (or appoint other
comparable managers) of such corporation, partnership, limited liability company, or other entity.




          “Swing Lender” means (a) with respect to all US Swing Loans, WFCF, (b) with respect to
all Foreign Swing Loans, Wells Fargo (London) and (b) any other Lender that, at the request of
Borrowers and with the consent of Agent agrees, in such Lender’s sole discretion, to become the
Swing Lender under Section 2.3(b) of the Agreement.




          “Swing Loan” has the meaning specified therefor in Section 2.3(b) of the
Agreement.




          “TARGET Day” means any day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer (TARGET 2) payment system which utilizes a single shared platform of
which was launched on November 19, 2007 (or, if such payment system ceases to be operative, such
other payment system (if any) determined by Agent to be a suitable replacement) is open for the
settlement of payments in Euro.




          “Tax Abatement Transactions” means a transaction between the Company or any of its
Restricted Subsidiaries, on the one hand, and a Related Municipal Party, on the other hand, entered
into for the purposes of reducing certain of the Company’s or such Restricted Subsidiary’s tax
liabilities through (i) the issuance by such Related Municipal Party of industrial revenue or
development bonds or other similar tax-exempt securities, (ii) the transfer to such Related
Municipal Party of title to real property, equipment or other related assets of the Company or such
Restricted Subsidiary, (iii) the granting to such Related Municipal Parties of liens on real
property, equipment or other related assets of the Company or such Restricted Subsidiary, (iv) the
sale to and leaseback from such Related Municipal Party of real property, equipment or other
related assets of the Company or such Restricted Subsidiary or (v) any combination of the foregoing
or through arrangements similar thereto, in each case so long as the Company or such Restricted
Subsidiary (A) may upon not more than 90 days’ notice obtain title from such Related Municipal
Party to such real property, equipment or other assets free and clear of any Liens (other than
Permitted Liens) by paying a nominal fee or the amount of any taxes (or any portion thereof) that
would have otherwise been due and payable had such transaction not been terminated, by canceling
issued bonds, if any, or otherwise terminating or unwinding such transaction, as the case may be
and (B) in no event shall be liable (including though the payment of fees, penalties or other
amounts), in connection therewith for any amount in excess of the amount by which such transaction
has reduced such tax liabilities.




          “Taxes” means any taxes, levies, imposts, duties, fees, assessments or other charges
of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or
taxing authority thereof or therein with respect to such payments and all interest, penalties or
similar liabilities with respect thereto; provided, however, that Taxes shall
exclude (i) any tax imposed on the net income or net profits of any Lender or any Participant
(including any branch profits taxes), in each case imposed by the jurisdiction (or by any political
subdivision or taxing authority thereof) in which such Lender or such Participant is organized or






55









 







the jurisdiction (or by any political subdivision or taxing authority thereof) in which such
Lender’s or such Participant’s principal office is located in each case as a result of a present or
former connection between such Lender or such Participant and the jurisdiction or taxing authority
imposing the tax (other than any such connection arising solely from such Lender or such
Participant having executed, delivered or performed its obligations or received payment under, or
enforced its rights or remedies under the Agreement or any other Loan Document); (ii) taxes
resulting from a Lender’s or a Participant’s failure to comply with the requirements of Section
16(c) or (d) of the Agreement, and (iii) any United States federal withholding taxes
that would be imposed on amounts payable to a Foreign Lender based upon the applicable withholding
rate in effect at the time such Foreign Lender becomes a party to the Agreement (or designates a
new lending office), except (A) to the extent of any additional amounts that such Foreign
Lender (or its assignor, if any) was previously entitled to receive pursuant to Section
16(a) of the Agreement, if any, with respect to such withholding tax at the time such Foreign
Lender becomes a party to the Agreement (or designates a new lending office), and (B) additional
United States federal withholding taxes that may be imposed after the time such Foreign Lender
becomes a party to the Agreement (or designates a new lending office), as a result of a change in
law, rule, regulation, order or other decision with respect to any of the foregoing by any
Governmental Authority.




          “Tax Lender” has the meaning specified therefor in Section 14.2(a) of the
Agreement.




          “Threshold Amount” means the greater of (a) $30,000,000 and (b) 15% of the
Maximum Revolver Amount.




          “Total Assets” means the aggregate of all assets of the Company and its Subsidiaries
on a consolidated basis.




          “Trademark Security Agreement” has the meaning specified therefor in the Security
Agreement.




          “Transactions” means collectively, (a) the consummation of the repayment of the
Existing Credit Agreement and the repayment of (including by way of irrevocably depositing with the
trustee or paying agent with respect thereto or any other Person (other than the Company or any
Affiliate thereof) designated in accordance with the terms of the Existing Senior Secured Notes,
cash or Cash Equivalents before due for the purpose of discharging, redeeming or otherwise paying
in full the Existing Senior Secured Notes), (b) the entering into of the Loan Documents and the
incurrence of all Advances and the issuance of all Letters of Credit on the Closing Date, (c) the
issuance of the Senior Notes on the date hereof and (d) the payment of fees and expenses in
connection with the foregoing.




          “Trigger Period” means (a) any period during which any Event of Default shall have
occurred and be continuing and (b) each period commencing on a date that Excess Availability is
less than the Threshold Amount, and continuing until the date Excess Availability shall have been
equal to or greater than the Threshold Amount for 60 consecutive days.







56









 








          “Type” shall mean the type of Loan determined with regard to the interest option
applicable thereto, i.e., whether a Base Rate Loan, a Eurodollar Loan, a Euro Rate Loan denominated
in Euros (other than a Swingline Loan denominated in Euros) or a Swing line Loan denominated in
Euros.




          “Underlying Issuer” means Wells Fargo or one of its Affiliates.




          “Underlying Letter of Credit” means a Letter of Credit that has been issued by an
Underlying Issuer.




          “Unfunded Current Liability” means the amount, if any, by which the actuarial present
value of accumulated benefits of any Plan subject to Title IV of ERISA as of the close of its most
recent plan year, determined using actuarial assumptions at such time consistent with those
prescribed by Financial Account Standards No. 87, exceeds the fair market value of the assets
allocable to such liabilities.




          “United States” or “U.S.” means the United States of America.




          “Unrestricted Subsidiary” means each Subsidiary of the Company identified as an
“Unrestricted Subsidiary” on Schedule 4.1(c) as of the Closing Date (until such time, if
ever, that such Subsidiary is designated as a Restricted Subsidiary in accordance with Section
5.18) and each other Subsidiary which becomes an Unrestricted Subsidiary in accordance with
Section 5.18.




          “US Advances” means Advances made to any US Borrower. For the avoidance of doubt, US
Advances include any US Swing Loan.




          “US Bank Product Obligations” means (a) all obligations, liabilities, reimbursement
obligations, fees, or expenses owing by any US Loan Party to any Bank Product Provider pursuant to
or evidenced by a Bank Product Agreement and irrespective of whether for the payment of money,
whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter
arising, (b) all US Hedge Obligations, and (c) all amounts that Agent or any Lender is obligated to
pay to a Bank Product Provider as a result of Agent or such Lender purchasing participations from,
or executing guarantees or indemnities or reimbursement obligations to, a Bank Product Provider
with respect to the Bank Products provided by such Bank Product Provider to a US Loan Party.




          “US Borrowers” has the meaning specified therefor in the preamble to the Agreement.




          “US Borrowing Base” means, as of any date of determination, the result of:




          (a) 85% of the amount of Eligible US Accounts; minus




          (b) the amount, if any, of the applicable Dilution Reserve; plus







57









 








          (c) 85% times the most recently determined Net Liquidation Percentage times
the value (calculated at the lower of cost or market on a basis consistent with Company’s
historical accounting practices) of the Eligible US Inventory; minus




          (d) the aggregate amount of reserves (other than the Dilution Reserve, if any), if any,
established by Agent under Section 2.1(c) of the Agreement with respect to the US Borrowing
Base of the US Borrowers.




          “US Borrowing Base Excess” has the meaning set forth in Section 2.4(e)(i).




          “US Collateral” means the assets and property of the US Loan Parties described in the
US Security Documents.




          “US Collection Account” means each account established at a US Collection Bank subject
to a Control Agreement into which funds shall be transferred as provided in Section
2.15(a)(i).




          “US Collection Banks” has the meaning specified therefor in Section
2.15(a)(i).




          “US Concentration Account” has the meaning specified therefor in Section
2.15(c)(i).




          “US Control Accounts” means, collectively, the US Collection Account, the US
Disbursement Accounts (other than Excluded Accounts) and the Securities Accounts of any US Loan
Party.




          “US Disbursement Account” means each checking and/or disbursement account of the US
Loan Parties for their general corporate purposes, including for the purpose of paying the US Loan
Parties’ trade payables and other operating expenses.




          “US Dominion Account” has the meaning specified therefor in Section
2.15(d)(i).




          “US Guarantors” means (a) each US Borrower, (b) each US Subsidiary of the Company
(other than an Excluded Subsidiary) existing on the Closing Date, and (c) each other Person that
becomes a US Borrower or a US Guarantor, as applicable, after the Closing Date pursuant to
Section 5.12(a) of the Agreement.




          “US Guaranty” means the general continuing guaranty, dated as of even date with the
Agreement, executed and delivered by each extant US Guarantor in favor of Agent, for the benefit of
the Lender Group and the Bank Product Providers, in form and substance satisfactory to Agent in its
Permitted Discretion.




          “US Hedge Obligations” means any and all obligations or liabilities, whether absolute
or contingent, due or to become due, now existing or hereafter arising, of a US Borrower or its US
Loan Party arising under, owing pursuant to, or existing in respect of Hedge Agreements entered
into with one or more of the Bank Product Providers




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          “US Joinder Agreement” means a joinder agreement substantially in the form of
Exhibit J-1.




          “US Letter of Credit” means a Letter of Credit issues on behalf of a US Borrower.




          “US Letter of Credit Usage” means, as of any date of determination, the aggregate
undrawn amount of all outstanding Letters of Credit on the account of the US Borrowers .




          “US Loan Parties” means the US Borrowers and the US Guarantors.




          “US Obligations” means (a) all loans (including the US Advances (inclusive of
Protective Advances and US Swing Loans)), debts, principal, interest (including any interest that
accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed or
allowable in whole or in part as a claim in any such Insolvency Proceeding), reimbursement or
indemnification obligations with respect to Reimbursement Undertakings or with respect to US
Letters of Credit (irrespective of whether contingent), premiums, liabilities (including all
amounts charged to the Loan Account pursuant to the Agreement), obligations (including
indemnification obligations), fees (including the fees provided for in the Fee Letter), Lender
Group Expenses (including any fees or expenses that accrue after the commencement of an Insolvency
Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such
Insolvency Proceeding), guaranties, covenants, and duties of any kind and description owing by any
US Loan Party pursuant to or evidenced by the Agreement or any of the other Loan Documents and
irrespective of whether for the payment of money, whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter arising, and including all interest not
paid when due and all other expenses or other amounts that any US Borrower is required to pay or
reimburse by the Loan Documents or by law or otherwise in connection with the Loan Documents, (b)
all debts, liabilities, or obligations (including reimbursement obligations, irrespective of
whether contingent) owing by any US Borrower or any other US Loan Party to an Underlying Issuer now
or hereafter arising from or in respect of Underlying Letters of Credit, and (c) all US Bank
Product Obligations. Any reference in the Agreement or in the Loan Documents to the US Obligations
shall include all or any portion thereof and any extensions, modifications, renewals, or
alterations thereof, both prior and subsequent to any Insolvency Proceeding.




          “US Revolver Usage” means, as of any date of determination, the sum of (a) the amount
of outstanding US Advances, plus (b) the amount of the US Letter of Credit Usage.




          “US Security Agreement” means the security agreement, dated as of even date with the
Agreement, in form and substance satisfactory to Agent in its Permitted Discretion, executed and
delivered by the US Loan Parties to Agent.




          “US Security Documents” means the US Security Agreement, the Control Agreements, the
Copyright Security Agreement, the Patent Security Agreement, the Trademark Security Agreement, the
Mortgages, and each other mortgages, pledge agreements, security agreements and other security
documents entered into from time to time by any US Loan Party pursuant the Agreement, as each such
document may be modified, supplemented or amended from time to time in accordance with the terms
thereof.







59









 








          “US Subsidiary” means any Subsidiary that is organized under the laws of the United
States or the District of Columbia.




          “US Swing Loan” means Swing Loans made to any US Borrower.




          “Voidable Transfer” has the meaning specified therefor in Section 17.8 of the
Agreement.




          “Wells Fargo” means Wells Fargo Bank, National Association, a national banking
association.




          “Wells Fargo (London)” means Wells Fargo Bank, National Association (London Branch), a
national banking association.




          “WFCF” means Wells Fargo Capital Finance, LLC, a Delaware limited liability company.




          “Wholly-Owned Foreign Subsidiary” means, as to any Person, any Wholly-Owned Subsidiary
of such Person that is a Foreign Subsidiary of such Person.




          “Wholly-Owned Subsidiary” means, as to any Person, (i) any corporation 100% of whose
capital Stock (other than director’s qualifying shares and/or other nominal amounts of shares
required by applicable law to be held by Persons other than such Person) is at the time owned by
such Person and/or one or more Wholly-Owned Subsidiaries of such Person and (ii) 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 owned at such time 100% of the Stock of such
partnership, limited liability company, association, joint venture or other entity such time;
provided that any Foreign Subsidiary of such Person at least 90% of whose Stock is owned by
such Person and/or one or more Wholly-Owned Subsidiaries (determined after giving effect to this
proviso) of such Person at such time shall be deemed to be a Wholly-Owned Subsidiary of such
Person.





60