Filed by Bowne Pure Compliance





Exhibit 10.3




EXECUTION VERSION




WOODWARD GOVERNOR COMPANY




AMENDMENT NO. 1 TO NOTE PURCHASE AGREEMENT




As of October 1, 2008




To the Holders of Notes

Named on the Signature Pages Hereto




Ladies and Gentlemen:




Woodward Governor Company (hereinafter, together with its successors and assigns, the
“Company”) agrees with you as follows:



1. PRELIMINARY STATEMENTS.





1.1. Note Issuances, etc.



Pursuant to that certain Note Purchase Agreement dated as of October 15, 2001 (as in effect
immediately prior to giving effect to the Amendments (as defined below) provided for hereby, the
“Existing Note Purchase Agreement”, and as amended by this Amendment Agreement (as defined below)
and as may be further amended, restated or otherwise modified from time to time, the “Note Purchase
Agreement”) the Company issued and sold Seventy Five Million Dollars ($75,000,000) in aggregate
principal amount of its 6.39% Senior Notes due October 15, 2011 (as amended, restated or otherwise
modified from time to time as of the date hereof, the “Notes”). The register for the registration
and transfer of the Notes indicates that the parties named in Annex 1 (the “Noteholders”) to this
Amendment No. 1 to Note Purchase Agreement (the “Amendment Agreement”) are currently the holders of
the entire outstanding principal amount of the Notes.



2. DEFINED TERMS.




Capitalized terms used herein and not otherwise defined herein have the meanings ascribed to
them in the Existing Note Purchase Agreement.



3. AMENDMENTS TO THE EXISTING NOTE PURCHASE AGREEMENT.




Subject to Section 5 of this Amendment Agreement, the Required Holders and the Company hereby
agree to each of the amendments to the Existing Note Purchase Agreement as provided for by this
Amendment Agreement and specified in Exhibit A. Such amendments are referred to herein,
collectively, as the “Amendments”.


 


 









 





4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.




To induce you to enter into this Amendment Agreement and to consent to the Amendments, the
Company represents and warrants as follows:




4.1. Reaffirmation of Representations and Warranties.



All of the representations and warranties contained in Section 5 of the Existing Note Purchase
Agreement are correct with the same force and effect as if made by the Company on the date hereof
except to the extent (a) that any of such representations and warranties relate by their terms to a
prior date or (b) otherwise disclosed in the periodic and current reports filed by the Company with
the Securities and Exchange Commission since the Closing or set forth in the Offering Memorandum
relating to the 2008 Note Purchase Agreement, a copy of which has been delivered to the
Noteholders.




4.2. Organization, Power and Authority, etc.



The Company has all requisite corporate power and authority to enter into and perform its
obligations under this Amendment Agreement.




4.3. Legal Validity.



The execution and delivery of this Amendment Agreement by the Company and compliance by the
Company with its obligations hereunder and under the Note Purchase Agreement: (a) are within the
corporate powers of the Company; and (b) do not violate or result in any breach of, constitute a
default under, or result in the creation of any Lien upon any property of the Company under the
provisions of: (i) its charter documents; (ii) any order, judgment, decree or ruling of any court,
arbitrator or Governmental Authority applicable to either the Company or its property; or (iii) any
agreement or instrument to which the Company is a party or by which the Company or any of its
property may be bound or any statute or other rule or regulation of any Governmental Authority
applicable to the Company or its property.



This Amendment Agreement has been duly authorized by all necessary action on the part of the
Company, has been executed and delivered by a duly authorized officer of the Company, and
constitutes a legal, valid and binding obligation of the Company, enforceable against the Company
in accordance with its terms, except as such enforceability may be limited by applicable
bankruptcy, reorganization, arrangement, insolvency, moratorium, or other similar laws affecting
the enforceability of creditors’ rights generally and subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in equity or at law).




4.4. No Defaults.



No event has occurred and no condition exists that: (a) would constitute a Default or an Event
of Default or (b) could reasonably be expected to have a Material Adverse Effect.


 


2









 






4.5. Disclosure.



This Amendment Agreement and the documents, certificates or other writings delivered to the
Noteholders by or on behalf of the Company in connection therewith, taken as a whole, do not
contain any untrue statement of a material fact or omit to state any material fact necessary to
make the statements therein not misleading in light of the circumstances under which they were
made. There is no fact known to the Company that could reasonably be expected to have a Material
Adverse Effect that has not been set forth herein or in the other documents, certificates and other
writings delivered to the Noteholders by or on behalf of the Company specifically for use in
connection with the transactions contemplated by the this Amendment Agreement.



5. EFFECTIVENESS OF AMENDMENTS.




The Amendments shall become effective only upon the date of the satisfaction in full of the
following conditions precedent (the “Effective Date”):




5.1. Execution and Delivery of this Amendment Agreement.



The Company and the Required Holders shall have executed and delivered this Amendment
Agreement.




5.2. Representations and Warranties True.



The representations and warranties set forth in Section 4 shall be true and correct on such
date in all respects.




5.3. Authorization.



The Company shall have authorized, by all necessary action, the execution, delivery and
performance of all documents, agreements and certificates in connection with this Amendment
Agreement.




5.4. Amendment to 2007 Bank Credit Agreement.



Each of the Noteholders shall have received, on or before the date hereof, a fully executed
copy of an amendment agreement to the Second Amended and Restated Credit Agreement (the “2007 Bank
Credit Agreement”), dated as of October 25, 2007, by and among the Company, the foreign subsidiary
borrowers from time to time parties thereto, the institutions from time to time party thereto as
lenders, and JPMorgan Chase Bank, National Association, as administrative agent for itself and the
other lenders party thereto, in form and substance satisfactory to the Required Holders, and the
conditions to the effectiveness thereof, and all conditions to the obligations of the lenders
thereunder to make loans thereunder, shall have been satisfied or waived.


 


3









 






5.5. 2008 Note Purchase Agreement.



Each of the Noteholders shall have received, on or before the date hereof, a fully executed
copy of the Note Purchase Agreement (the “2008 Note Purchase Agreement”), dated
as of October 1, 2008, by and among the Company and the purchasers party thereto, in form and
substance satisfactory to the Required Holders, and the conditions to the effectiveness thereof,
and all conditions to the obligations of the purchasers party thereto to purchase the notes to be
issued thereunder shall have been satisfied or waived.




5.6. 2008 Bank Credit Agreement.



Each of the Noteholders shall have received, on or before the date hereof, a fully executed
copy of the Term Loan Credit Agreement (the “2008 Bank Credit Agreement”), dated as of October 1,
2008, by and among the Company, the institutions from time to time party thereto as lenders, and
JPMorgan Chase Bank, National Association, as administrative agent for itself and the other lenders
party thereto, in form and substance satisfactory to the Required Holders, and the conditions to
the effectiveness thereof, and all conditions to the obligations of the lenders thereunder to make
loans thereunder, shall have been satisfied or waived.




5.7. Intercreditor Agreement.



Each of the Noteholders shall have received, on or before the date hereof, a fully executed
copy of the Amended and Restated Intercreditor Agreement, dated as of October 1, 2008, by and among
(i) JPMorgan Chase Bank, National Association, as administrative agent for itself and the other
lenders under the 2007 Bank Credit Agreement, (ii) JPMorgan Chase Bank, National Association, as
administrative agent for itself and the other lenders under the 2008 Bank Credit Agreement, (iii)
the holders of the notes under the 2008 Note Purchase Agreement and (iv) the Noteholders, in form
and substance satisfactory to the Required Holders, and the conditions to the effectiveness thereof
shall have been satisfied or waived.




5.8. Special Counsel Fees.



The Company shall have paid the reasonable fees and disbursements of Noteholders’ special
counsel in accordance with Section 6 below.




5.9. Proceedings Satisfactory.



All proceedings taken in connection with this Amendment Agreement and all documents and papers
relating thereto shall be satisfactory to the Noteholders signatory hereto and their special
counsel, and such Noteholders and their special counsel shall have received copies of such
documents and papers as they or their special counsel may reasonably request in connection
herewith.


 


4









 





6. EXPENSES.




Whether or not the Amendments become effective, the Company will promptly (and in any event
within thirty (30) days of receiving any statement or invoice therefor) pay all reasonable fees,
expenses and costs of your special counsel, Bingham McCutchen LLP, incurred in connection with the
preparation, negotiation and delivery of this Amendment Agreement, the Intercreditor Agreement and
any other documents related thereto. Nothing in this Section shall limit the Company’s obligations
pursuant to Section 15.1 of the Existing Note Purchase Agreement.



7. MISCELLANEOUS.





7.1. Part of Existing Note Purchase Agreement; Future References, etc.



This Amendment Agreement shall be construed in connection with and as a part of the Note
Purchase Agreement and, except as expressly amended by this Amendment Agreement, all terms,
conditions and covenants contained in the Existing Note Purchase Agreement are hereby ratified and
shall be and remain in full force and effect. Any and all notices, requests, certificates and
other instruments executed and delivered after the execution and delivery of this Amendment
Agreement may refer to the Note Purchase Agreement without making specific reference to this
Amendment Agreement, but nevertheless all such references shall include this Amendment Agreement
unless the context otherwise requires.




7.2. Counterparts, Facsimiles.



This Amendment Agreement may be executed in any number of counterparts, each of which shall be
an original but all of which together shall constitute one instrument. Each counterpart may
consist of a number of copies hereof, each signed by less than all, but together signed by all, of
the parties hereto. Delivery of an executed signature page by facsimile transmission shall be
effective as delivery of a manually signed counterpart of this Amendment Agreement.




7.3. Governing Law.



THIS AMENDMENT AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF
THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF ILLINOIS EXCLUDING CHOICE-OF-LAW
PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD PERMIT THE APPLICATION OF THE LAWS OF A JURISDICTION
OTHER THAN SUCH STATE.



[Remainder of page intentionally left blank. Next page is signature page.]



 


5









 





If you are in agreement with the foregoing, please so indicate by signing the acceptance below
on the accompanying counterpart of this Amendment Agreement and returning it to the Company,
whereupon it will become a binding agreement among you and the Company.



	 	 	 	 	 
	 	WOODWARD GOVERNOR COMPANY

 	 
	 	By:  	/s/ Robert F. Weber, Jr.
 	 
	 	 	Name:  	Robert F. Weber, Jr. 	 
	 	 	Title:  	Chief Financial Officer and Treasurer 	 


Signature Page to Amendment No. 1 to Note Purchase Agreement




 


 









 





The foregoing Amendment Agreement is hereby accepted as of the date first above written. By
its execution below, each of the undersigned represents that it is the owner of one or more of the
Notes and is authorized to enter into this Amendment Agreement in respect thereof.



	 	 	 	 	 	 	 	 	 
	 	 	New York Life Insurance and Annuity

Corporation Institutionally Owned Life 

Insurance Separate Account	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	New York Life Investment Management LLC, its

Investment Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Kathleen A. Haberkern
 

Name: Kathleen A. Haberkern
	 	 
	 

	 	 	 	 	 	Title: Director	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	New York Life Insurance Company	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Kathleen A. Haberkern	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Name: Kathleen A. Haberkern	 	 
	 	 	 	 	Title: Corporate Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	New York Life Insurance and Annuity Corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	New York Life Investment Management LLC, its

Investment Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Kathleen A. Haberkern
 

Name: Kathleen A. Haberkern
	 	 
	 

	 	 	 	 	 	Title: Director	 	 




Signature Page to Amendment No. 1 to Note Purchase Agreement




 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	Modern Woodmen of America	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Douglas A. Pannier	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Name: Douglas A. Pannier	 	 
	 	 	 	 	Title: Portfolio Manager — Private Placements	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Nationwide Life Insurance Company

Nationwide Mutual Insurance Company

AMCO Insurance Company	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Jeffrey A. Gilliam	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Name: Jeffrey A. Gilliam

Title: Authorized Signatory	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Massachusetts Mutual Life Insurance Company	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Babson Capital Management LLC, as Investment

Adviser	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Emeka O. Onukwugha
 

Name: Emeka O. Onukwugha
	 	 
	 

	 	 	 	 	 	Title: Managing Director	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	C.M. Life Insurance Company	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Babson Capital Management LLC, as Investment

Sub-Adviser	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Emeka O. Onukwugha
 

Name: Emeka O. Onukwugha
	 	 
	 

	 	 	 	 	 	Title: Managing Director	 	 




Signature Page to Amendment No. 1 to Note Purchase Agreement




 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	MassMutual Asia Limited	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Babson Capital Management LLC, as Investment

Adviser	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Emeka O. Onukwugha
 

Name: Emeka O. Onukwugha
	 	 
	 

	 	 	 	 	 	Title: Managing Director	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	American Family Life Insurance Company	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Phillip Hannifan	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Name: Phillip Hannifan

Title: Investment Director	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Connecticut General Life Insurance Company	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	CIGNA Investments, Inc. (authorized agent)	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Leonard Mazlish
 

Name: Leonard Mazlish

Title: Managing Director
	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Life Insurance Company of North America	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	CIGNA Investments, Inc. (authorized agent)	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Leonard Mazlish
 

Name: Leonard Mazlish

Title: Managing Director
	 	 




Signature Page to Amendment No. 1 to Note Purchase Agreement




 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	CIGNA Life Insurance Company of New York	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	CIGNA Investments, Inc. (authorized agent)	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Leonard Mazlish
 

Name: Leonard Mazlish

Title: Managing Director
	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Minnesota Life Insurance Company	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Advantus Capital Management, Inc.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Theodore R. Hoxmeier
 

Name: Theodore R. Hoxmeier

Title: Vice President
	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Prudential Retirement Insurance and Annuity
Company	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Prudential Investment Management, Inc.,
as investment manager	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Matthew W. Reed
 

Vice President
	 	 






Signature Page to Amendment No. 1 to Note Purchase Agreement




 


 









 







GUARANTOR ACKNOWLEDGEMENT




The undersigned hereby acknowledges and agrees to the terms of Amendment No. 1 to Note
Purchase Agreement, dated as of October 1, 2008 (the “Amendment”), amending that certain Note
Purchase Agreement, dated as of October 15, 2001, (the “Note Purchase Agreement”), among Woodward
Governor Company, a Delaware corporation and the holders of Notes party thereto. The undersigned
also acknowledges and agrees that each reference to “the Bank Credit Agreement” appearing in each
Guaranty Agreement is hereby replaced with “any Major Credit Facility”. The undersigned hereby
confirms that the Guaranty Agreement to which the undersigned is a party remains in full force and
effect after giving effect to the Amendment and continues to be the valid and binding obligation of
the undersigned, enforceable against the undersigned in accordance with its terms, subject to any
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditor’s rights generally or by equitable principles including principles of
commercial reasonableness, good faith and fair dealing (whether enforceability is sought by
proceedings in equity or at law).



Capitalized terms used herein but not defined are used as defined in the Note Purchase
Agreement.




Dated as of October 1, 2008



	 	 	 	 	 
	 	WOODWARD FST, INC.

 	 
	 	By:  	/s/ Robert F. Weber, Jr.
 	 
	 	 	Name:  	Robert F. Weber, Jr. 	 
	 	 	Title:  	Secretary and Treasurer 	 



Guarantor Acknowledgement




 


 









 







Annex 1




Noteholders





Prudential Retirement Insurance and Annuity Company



Connecticut General Life Insurance Company



Life Insurance Company of North America



CIGNA Life Insurance Company of New York



New York Life Insurance Company



New York Life Insurance and Annuity Corporation



New York Life Insurance and Annuity Corporation Institutionally Owned Life Insurance Separate
Account



Nationwide Life Insurance Company



Nationwide Mutual Insurance Company



AMCO Insurance Company



Massachusetts Mutual Life Insurance Company



C.M. Life Insurance Company



MassMutual Asia Limited



Minnesota Life Insurance Company



Modern Woodmen of America



American Family Life Insurance Company



Annex 1-1




 


 









 







EXHIBIT A




AMENDMENTS




(a) Section 7.1(f)
— Information. Section 7.1(f) of the Existing Note Purchase Agreement is
hereby amended and restated to read as follows:




“(f) Major Credit
Facility — substantially concurrent with the transmission thereof,
copies (unless otherwise delivered pursuant to the other provisions of this Section 7.1) of
all financial statements, notices, reports and other information given by or on behalf of
the Company or any of its Subsidiaries to the financial institutions party to any Major
Credit Facility (excluding routine matters such as borrowing requests); and”



(b) Section 9.6 — Guaranty
by Subsidiaries; Liens. Section 9.6 of the Existing Note Purchase
Agreement is hereby amended and restated to read as follows:




“Section 9.6 Guaranty by Subsidiaries. (a) If at any time, pursuant to the terms and
conditions of any Major Credit Facility, any existing or newly acquired or formed Subsidiary
of the Company becomes obligated as a guarantor or obligor under such Major Credit Facility,
the Company shall, at its sole cost and expense, cause such Subsidiary to concurrently
therewith become a Guarantor in respect of this Agreement and the Notes, and within ten (10)
Business Days thereafter shall deliver to each of the holders of the Notes the following
items:




(1) an executed supplement to the Guaranty Agreement in the form of Exhibit A
thereto (a “Guaranty Supplement”);




(2) such documents and evidence with respect to such Subsidiary as the Required
Holders may reasonably request in order to establish the existence and good standing
of such Subsidiary and the authorization of the transactions contemplated by such
Guaranty Supplement;




(3) an opinion of counsel to the Company and such Subsidiary in form and
substance satisfactory to the Required Holders to the effect that (i) such Guaranty
Supplement has been duly authorized, executed and delivered by such Subsidiary, (ii)
the Guaranty Agreement as supplemented by such Guaranty Supplement constitutes the
legal, valid and binding contract and agreement of such Subsidiary, enforceable in
accordance with its terms (except as enforcement of such terms may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
similar laws affecting the enforcement of creditors’ rights generally and by general
equitable principles) and (iii) the execution, delivery and performance by such
Subsidiary of such Guaranty Supplement do not (A) violate any law, rule or
regulation applicable to such Subsidiary, or (B)(1)conflict with or result in any
breach of any of the provisions of or constitute a default under or result in the
creation or imposition of any Lien not permitted by Section 10.5 or (2) conflict
with or result in any breach of any of
the provisions of or constitute a default under (I) the provisions of the
charter, bylaws, certificate of formation, operating agreement or other constitutive
documents of such Subsidiary, or (II) any agreement or other instrument to which
such Subsidiary is a party or by which such Subsidiary may be bound;


 


Exhibit A-1









 






provided, that notwithstanding anything contained in this Section 9.6(a) to the contrary,
the Company shall be under no obligation to (but may in its sole discretion) require any
Foreign Subsidiary to become a Guarantor in respect of this Agreement and the Notes to the
extent such Foreign Subsidiary’s obligations under all Major Credit Facilities consist
solely of direct borrowings solely to such Foreign Subsidiary (a “Foreign Borrowing”) or
guaranties of a Foreign Borrowing by another Foreign Subsidiary.




(b) If at any time, pursuant to the terms and conditions of all of the Major Credit
Facilities, any Guarantor is discharged and released from its Guaranty of Indebtedness under
all of the Major Credit Facilities and (1) such Guarantor is not a co-obligor under any of
the Major Credit Facilities and (2) the Company shall have delivered to each holder of Notes
an Officer’s Certificate certifying that (i) the condition specified in clause (1) above has
been satisfied and (ii) immediately preceding the release of such Guarantor from the
Guaranty Agreement and after giving effect thereto, no Default or Event of Default shall
have existed or would exist, then, upon receipt by the holders of Notes of such Officer’s
Certificate, such Guarantor shall be discharged and released, automatically and without the
need for any further action, from its obligations under the Guaranty Agreement; provided
that, if in connection with any release of a Guarantor from its Guaranty of Indebtedness
under any Major Credit Facility any fee or other consideration (excluding, for the avoidance
of doubt, any repayment of the principal or interest under any Major Credit Facility in
connection with such release) is paid or given to any holder of Indebtedness under such
Major Credit Facility in connection with such release, each holder of a Note shall receive
equivalent consideration on a pro rata basis in connection with such Guarantor’s release
from the Guaranty Agreement. Without limiting the foregoing, for purposes of further
assurance, each of the holders of the Notes agrees to provide to the Company and such
Guarantor, if reasonably requested by the Company or such Guarantor and at the Company’s
expense, written evidence of such discharge and release signed by such holder.




(c) If at any time, pursuant to the terms and conditions of any other Major Credit
Facility, the Company or any of its Subsidiaries are required to or elect to grant Liens on
any of their assets to secure the Indebtedness evidenced by such Major Credit Facility, the
Company will, at its sole cost and expense, grant, or cause such Subsidiary to grant, Liens
on such assets in favor of the holders of the Notes (or in favor of a collateral agent
reasonably acceptable to the Required Holders for the benefit of the holders of the Notes),
and within ten (10) Business Days thereafter will deliver to each of the holders of the
Notes the following items:




(1) such security documents as the Required Holders deem reasonably necessary
or advisable to grant to the holders of Notes (or such collateral agent for the
benefit of the holders of Notes) a perfected first priority security interest to (or
for the benefit of) the holders of Notes;


 


Exhibit A-2









 






(2) such documents and evidence with respect to such Liens as the Required
Holders may reasonably request in order to establish the existence and priority of
such Liens and the authorization of the transactions contemplated by such security
documents; and




(3) an opinion of counsel to the Company or such Subsidiary in form and
substance satisfactory to the Required Holders to the effect that (x) such security
documents have been duly authorized, executed and delivered by the Company or such
Subsidiary, (y) such security documents constitute the legal, valid and binding
contract and agreement of the Company or such Subsidiary, enforceable in accordance
with their terms (except as enforcement of such terms may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and similar laws
affecting the enforcement of creditors’ rights generally and by general equitable
principles) and (z) the execution, delivery and performance by the Company or such
Subsidiary of such security documents do not violate (A) any law, rule or regulation
applicable to the Company or such Subsidiary, or (B)(1) conflict with or result in
any breach of any of the provisions of or constitute a default under or result in
the creation or imposition of any Lien not permitted by Section 10.5 or (2) conflict
with or result in any breach of any of the provisions of or constitute a default
under (I) the provisions of the charter, bylaws, certificate of formation, operating
agreement or other constitutive documents of the Company or such Subsidiary, or (II)
any agreement or other instrument to which the Company or such Subsidiary is a party
or by which such Subsidiary may be bound;




(d) If at any time, pursuant to the terms and conditions of any Major Credit Facility,
Liens granted by the Company or any Subsidiary are released under all of the Major Credit
Facilities and the Company will have delivered to each holder of Notes an Officer’s
Certificate certifying that immediately preceding the release of such Liens and after giving
effect thereto, no Default or Event of Default will have existed or would exist, then, upon
receipt by the holders of Notes of such Officer’s Certificate, such Liens in favor of the
holders of Notes will be discharged and released, automatically and without the need for any
further action; provided that, if in connection with any release of such Liens under any
Major Credit Facility any fee or other consideration (excluding, for the avoidance of doubt,
any repayment of the principal or interest under any Major Credit Facility in connection
with such release) is paid or given to any holder of Indebtedness under such Major Credit
Facility in connection with such release, each holder of a Note shall receive equivalent
consideration on a pro rata basis in connection with such release of Liens securing the
Indebtedness evidenced by this Agreement and the Notes. Without limiting the foregoing, for
purposes of further assurance, each of the holders of the Notes agrees to provide to the
Company, if reasonably requested by the Company and at the Company’s expense, written
evidence of such discharge and release signed by such holder (or the collateral agent
appointed by the holders of Notes).”


 


Exhibit A-3









 





(c) Section 9.7 —
Intercreditor Agreement. Section 9.7 of the Existing Note Purchase
Agreement is hereby amended and restated to read as follows:




“Section 9.7 Intercreditor Agreement. If at any time, pursuant to the terms and conditions
of any Major Credit Facility, (a) Subsidiaries of the Company are required to provide a
Guaranty of the Company’s Indebtedness under such Major Credit Facility and such
Subsidiaries are required to become a Guarantor in respect of this Agreement and the Notes
or (b) the Company or any of its Subsidiaries are required to grant Liens on any of their
assets to secure the Indebtedness evidenced by any Major Credit Facility, and the Company or
such Subsidiaries are required to grant Liens to secure the Indebtedness evidenced by this
Agreement and the Notes, then the Company will, concurrently with the execution thereof or
the granting of such Guaranties and/or Liens, cause the lenders under such Major Credit
Facility to enter into, and the holders of Notes hereby agree to enter into, an
intercreditor agreement in form and substance (including, without limitation, as to the
sharing of recoveries and set offs) reasonably satisfactory to the Required Holders (the
“Intercreditor Agreement”) with the holders of Notes, or enter inter a joinder agreement to
such Intercreditor Agreement in form and substance reasonably satisfactory to the Required
Holders (it being acknowledged and agreed that the form of Amended and Restated
Intercreditor Agreement being entered into on October 1, 2008 is in form and substance
satisfactory to the Required Holders with respect to the granting of Guaranties). Within
ten (10) Business Days following the execution of any such Intercreditor Agreement (or any
joinder thereto), the Company shall deliver an executed copy thereof to each holder of
Notes.”



(d) Section 10.4(d) —
Subsidiary Debt. Section 10.4(d) of the Existing Note Purchase
Agreement is hereby amended and restated to read as follows:




“(d)
Indebtedness evidenced by (i) any Guaranty Agreement (as the same may be
supplemented from time to time by any Guaranty Supplement) or (ii) any Guaranty of any Major
Credit Facility so long as such Subsidiary has executed and delivered a Guaranty Agreement
and the Company has complied with the provisions of Sections 9.6 and 9.7 of this Agreement;”



(e) Section 10.4(g)(3) —
Subsidiary Debt. Section 10.4(g)(3) of the Existing Note Purchase
Agreement is hereby amended and restated to read as follows:




“(3)
the total amount of all Indebtedness permitted under this Section 10.4(g) at no
time exceeds an amount equal to 20% of Consolidated Net Worth.”



(f) Section 10.5 — Limitation
on Liens. Section 10.5 of the Existing Note Purchase Agreement
is hereby amended by deleting paragraph (m) and inserting new paragraphs (m) and (n) to read as
follows:




“(m) Liens (i) in favor of the holders of the Notes (or in favor of a collateral agent
reasonably satisfactory to the Required Holders) created to secure the Indebtedness
evidenced by this Agreement and the Notes pursuant to Section 9.6(c) and (ii) granted to
secure the Indebtedness evidenced by any Major Credit Facility, in each case under clauses
(i) and (ii) in compliance with Section 9.7; and


 


Exhibit A-4









 






(n) Liens in addition to those permitted by paragraphs (a) through (m), inclusive of
this Section 10.5, provided that at the time of incurrence of such other Liens and after
giving effect thereto, (1) the total amount of Indebtedness secured by Liens pursuant to
this Section 10.5(n) at no time exceeds an amount equal to 15% of Consolidated Net Worth and
(2) the Company is in compliance with the terms of Section 10.3.”



(g) Schedule B —
Definitions of Bank Credit Agreement, Successor Credit Agreement and
Wachovia Credit Agreement. The definitions of “Bank Credit Agreement”, “Successor Credit
Agreement” and “Wachovia Credit Agreement” each appearing in Schedule B of the Existing Note
Purchase Agreement are each hereby deleted.



(h) Schedule B —
Definitions of Foreign Subsidiary and Major Credit Facility. The following
definitions are hereby added to Schedule B of the Existing Note Purchase Agreement in their proper
alphabetical order to read as follows:




““Foreign Subsidiary” means any Subsidiary of the Company which is not organized under
the laws of the United States of America, any State thereof or the District of Columbia.”




““Major Credit Facility” means (a) the Second Amended and Restated Credit Agreement,
dated as of October 25, 2007, by and among the Company, the foreign subsidiary borrowers
from time to time parties thereto, the institutions from time to time party thereto as
lenders, and JPMorgan Chase Bank, National Association, as administrative agent for itself
and the other lenders party thereto, (b) the Term Loan Credit Agreement, dated as of October
1, 2008, by and among the Company, the institutions from time to time party thereto as
lenders, and JPMorgan Chase Bank, National Association, as administrative agent for itself
and the other lenders party thereto, (c) the Note Purchase Agreement, dated as of October 1,
2008, among the Company and the purchasers party thereto, and (d) any other credit, loan or
borrowing facility or note purchase agreement by the Company or any Subsidiary providing, in
each case, for the incurrence of Indebtedness in a principal amount equal to or greater than
$25,000,000, in each case under clauses (a) through (d) as amended, restated, supplemented
or otherwise modified and together with increases, refinancings and replacements thereof.”



(i) Schedule B —
Definition of Priority Debt. The definition of “Priority Debt” appearing in
Schedule B of the Existing Note Purchase Agreement is hereby amended and restated to read as
follows:




““Priority
Debt” means (i) all unsecured Indebtedness of any Subsidiary other than
Indebtedness permitted by paragraphs (a) through (f), inclusive, of Section 10.4, and (ii)
Indebtedness of the Company or any Subsidiary secured by Liens other than Liens permitted by
paragraphs (a) through (m), inclusive, of Section 10.5.”




 


Exhibit A-5