exv10w1






Exhibit 10.1




EXECUTION COPY




J. P. Morgan




CREDIT AGREEMENT




Dated as of September 19, 2008

among




GARDNER DENVER, INC.,




GARDNER DENVER HOLDINGS GMBH & CO KG,




GD FIRST (UK) LIMITED,

THE OTHER NON-U.S. SUBSIDIARY BORROWERS THAT ARE OR MAY HEREAFTER BECOME PARTIES HERETO,




THE INSTITUTIONS FROM TIME TO TIME PARTIES HERETO AS LENDERS,




JPMORGAN CHASE BANK, N.A.

individually, as LC Issuer, the Swing Line Lender and as Agent for the Lenders,




BANK OF AMERICA, N.A.

individually and as the Syndication Agent, and




MIZUHO CORPORATE BANK, LTD. and U.S. BANK, NATIONAL ASSOCIATION

individually and as Documentation Agents




J.P. MORGAN SECURITIES INC.

individually and as sole Lead Arranger and sole Book Runner





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I: DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	ARTICLE II: THE CREDITS
	 	 	25	 
	2.1. Revolving Loans
	 	 	25	 
	2.2. Swing Line Loans
	 	 	26	 
	2.3. Term Loans
	 	 	28	 
	2.4. Repayments and Prepayments of Advances
	 	 	30	 
	2.5. Ratable Loans
	 	 	32	 
	2.6. Types of Advances
	 	 	32	 
	2.7. Facility Fee; Ticking Fee; Reductions in Aggregate Revolving Loan Commitment
	 	 	32	 
	2.8. Minimum Amount of Each Advance; Maximum Interest Periods
	 	 	32	 
	2.9. Method of Selecting New Advances
	 	 	33	 
	2.10. Conversion and Continuation of Outstanding Advances
	 	 	33	 
	2.11. Changes in Interest Rate, etc
	 	 	34	 
	2.12. Rates Applicable After Default
	 	 	34	 
	2.13. Method of Payment
	 	 	35	 
	2.14. Noteless Agreement; Evidence of Indebtedness
	 	 	35	 
	2.15. Telephonic Notices
	 	 	36	 
	2.16. Interest Payment Dates; Interest and Fee Basis
	 	 	36	 
	2.17. Notification of Advances, Interest Rates, Prepayments and Commitment Reductions
	 	 	37	 
	2.18. Lending Installations
	 	 	37	 
	2.19. Non-U.S. Subsidiary Borrowers
	 	 	37	 
	2.20. Non-Receipt of Funds by the Agent
	 	 	37	 
	2.21. [Reserved]
	 	 	38	 
	2.22. Withholding Tax Exemption
	 	 	38	 
	2.23. Facility LCs
	 	 	38	 
	2.24. Transitional Letter of Credit Provisions
	 	 	43	 
	2.25. Judgment Currency
	 	 	43	 
	2.26. Market Disruption
	 	 	44	 
	2.27. Increase of Commitments
	 	 	44	 
	 
	 	 	 	 
	ARTICLE III: CHANGE IN CIRCUMSTANCES
	 	 	46	 
	3.1. Yield Protection
	 	 	46	 
	3.2. Changes in Capital Adequacy Regulations
	 	 	47	 
	3.3. Availability of Types of Advances
	 	 	47	 
	3.4. Funding Indemnification
	 	 	48	 
	3.5. Lender Statements; Survival of Indemnity
	 	 	48	 
	3.6. Replacement Lenders
	 	 	48	 
	3.7. Payments by Non-U.S. Subsidiary Borrowers
	 	 	48	 
	3.8. Tax Gross-Up re . Non-U.S. Subsidiary Borrower
	 	 	49	 






i









 






	 	 	 	 	 
	3.9. UK Taxes
	 	 	49	 
	 
	 	 	 	 
	ARTICLE IV: CONDITIONS PRECEDENT
	 	 	50	 
	4.1. Closing Date
	 	 	50	 
	4.2. Initial Advance to each Additional Non-U.S. Subsidiary Borrower
	 	 	53	 
	4.3. Each Credit Extension
	 	 	54	 
	 
	 	 	 	 
	ARTICLE V: REPRESENTATIONS AND WARRANTIES
	 	 	55	 
	5.1. Existence and Standing
	 	 	55	 
	5.2. Authorization and Validity
	 	 	55	 
	5.3. No Conflict; Government Consent
	 	 	55	 
	5.4. Financial Statements
	 	 	56	 
	5.5. Material Adverse Change
	 	 	56	 
	5.6. Taxes
	 	 	56	 
	5.7. Litigation and Contingent Obligations
	 	 	56	 
	5.8. Subsidiaries
	 	 	56	 
	5.9. ERISA
	 	 	57	 
	5.10. Accuracy of Information
	 	 	57	 
	5.11. Regulation U
	 	 	57	 
	5.12. Material Agreements
	 	 	57	 
	5.13. Compliance With Laws
	 	 	57	 
	5.14. Ownership of Property
	 	 	57	 
	5.15. Labor Matters
	 	 	58	 
	5.16. Investment Company Act
	 	 	58	 
	5.17. [Reserved]
	 	 	58	 
	5.18. Insurance
	 	 	58	 
	5.19. Special Representations and Warranties of each Non-U.S. Subsidiary Borrower
	 	 	58	 
	 
	 	 	 	 
	ARTICLE VI: COVENANTS
	 	 	59	 
	6.1. Financial Reporting
	 	 	60	 
	6.2. Use of Proceeds
	 	 	61	 
	6.3. Notice of Default
	 	 	61	 
	6.4. Conduct of Business
	 	 	62	 
	6.5. Taxes
	 	 	62	 
	6.6. Insurance
	 	 	62	 
	6.7. Compliance with Laws
	 	 	62	 
	6.8. Maintenance of Property and Books and Records
	 	 	62	 
	6.9. Inspection
	 	 	63	 
	6.10. Subsidiaries
	 	 	63	 
	6.11. Dividends
	 	 	63	 
	6.12. Indebtedness
	 	 	64	 
	6.13. Merger
	 	 	65	 
	6.14. Sale of Assets
	 	 	65	 
	6.15. Investments and Acquisitions
	 	 	66	 
	6.16. Guaranty or Pledge Documentation for New Subsidiaries
	 	 	68	 






ii









 






	 	 	 	 	 
	6.17. Contingent Obligations and Off Balance Sheet Liabilities
	 	 	69	 
	6.18. Liens
	 	 	70	 
	6.19. Rentals
	 	 	71	 
	6.20. Affiliates
	 	 	71	 
	6.21. Minimum Consolidated Interest Coverage Ratio
	 	 	72	 
	6.22. Maximum Leverage Ratio
	 	 	72	 
	6.23. Capital Expenditures
	 	 	72	 
	6.24. Pledge Agreements
	 	 	72	 
	 
	 	 	 	 
	ARTICLE VII: DEFAULTS
	 	 	72	 
	 
	 	 	 	 
	ARTICLE VIII: ACCELERATION, DEFAULTING LENDERS, WAIVERS, AMENDMENTS AND REMEDIES
	 	 	74	 
	8.1. Remedies
	 	 	74	 
	8.2. Defaulting Lender
	 	 	75	 
	8.3. Amendments
	 	 	76	 
	8.4. Preservation of Rights
	 	 	78	 
	 
	 	 	 	 
	ARTICLE IX: GENERAL PROVISIONS
	 	 	78	 
	9.1. Survival of Representations
	 	 	78	 
	9.2. Governmental Regulation
	 	 	78	 
	9.3. Taxes
	 	 	78	 
	9.4. Headings
	 	 	78	 
	9.5. Entire Agreement
	 	 	78	 
	9.6. Several Obligations; Benefits of this Agreement
	 	 	78	 
	9.7. Expenses; Indemnification
	 	 	79	 
	9.8. Numbers of Documents
	 	 	79	 
	9.9. Accounting
	 	 	79	 
	9.10. [Reserved]
	 	 	79	 
	9.11. Severability of Provisions
	 	 	80	 
	9.12. Nonliability of Lenders
	 	 	80	 
	9.13. CHOICE OF LAW
	 	 	80	 
	9.14. CONSENT TO JURISDICTION
	 	 	80	 
	9.15. WAIVER OF JURY TRIAL
	 	 	80	 
	9.16. Agent for Service of Process
	 	 	80	 
	9.17. Confidentiality
	 	 	81	 
	9.18. USA Patriot Act Notification
	 	 	81	 
	 
	 	 	 	 
	ARTICLE X: THE AGENT
	 	 	81	 
	10.1. Appointment
	 	 	81	 
	10.2. Powers
	 	 	81	 
	10.3. General Immunity
	 	 	81	 
	10.4. No Responsibility for Loans, Recitals, etc
	 	 	81	 
	10.5. Action on Instructions of Lenders
	 	 	82	 
	10.6. Employment of Agents and Counsel
	 	 	82	 






iii









 






	 	 	 	 	 
	10.7. Reliance on Documents; Counsel
	 	 	82	 
	10.8. Agent’s Reimbursement and Indemnification
	 	 	82	 
	10.9. Rights as a Lender
	 	 	82	 
	10.10. Lender Credit Decision
	 	 	83	 
	10.11. Successor Agent
	 	 	83	 
	10.12. Agent’s Fees
	 	 	83	 
	10.13. Execution of Guarantees and Collateral Documents
	 	 	83	 
	10.14. Collateral and Guaranty Releases
	 	 	83	 
	10.15. No Duties Imposed on the Syndication Agent, Documentation Agents or the Arranger
	 	 	84	 
	10.16. Foreign Pledge Provisions
	 	 	84	 
	 
	 	 	 	 
	ARTICLE XI: SETOFF; RATABLE PAYMENTS
	 	 	85	 
	11.1. Setoff
	 	 	85	 
	11.2. Ratable Payments
	 	 	85	 
	11.3. Relations Among Lenders
	 	 	86	 
	11.4. Application of Payments
	 	 	86	 
	 
	 	 	 	 
	ARTICLE XII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATION
	 	 	86	 
	12.1. Successors and Assigns
	 	 	86	 
	12.2. Participation
	 	 	87	 
	12.2.1. Permitted Participants; Effect
	 	 	87	 
	12.2.2. Voting Rights
	 	 	87	 
	12.2.3. Benefit of Setoff
	 	 	87	 
	12.3. Assignments
	 	 	87	 
	12.3.1. Permitted Assignments
	 	 	87	 
	12.3.2. Effect; Effective Date
	 	 	88	 
	12.3.3. Register
	 	 	88	 
	12.4. Dissemination of Information
	 	 	89	 
	12.5. Tax Treatment
	 	 	89	 
	 
	 	 	 	 
	ARTICLE XIII: NOTICES
	 	 	89	 
	13.1. Giving Notice
	 	 	89	 
	13.2. Change of Address
	 	 	89	 
	 
	 	 	 	 
	ARTICLE XIV: COUNTERPARTS
	 	 	89	 






iv









 






EXHIBITS AND SCHEDULES




	 	 	 	 	 
	Exhibit A

	 	—
	 	Form of Assumption Letter
	Exhibit B

	 	—
	 	Form of Parent Guaranty
	Exhibit C

	 	—
	 	Form of Subsidiary Guaranty
	Exhibit D

	 	—
	 	Forms of Notes (if requested)
	Exhibit E

	 	—
	 	Forms of Legal Opinion
	Exhibit F

	 	—
	 	Form of Compliance Certificate
	Exhibit G

	 	—
	 	Loan/Credit Related Money Transfer Instructions
	Exhibit H

	 	—
	 	List of Closing Documents
	Exhibit I

	 	—
	 	Form of Assignment Agreement
	Exhibit J

	 	—
	 	Form of Commitment and Acceptance
	 
	 	 	 	 
	Schedule 1(a)

	 	—
	 	Commitments
	Schedule 1(b)

	 	—
	 	Mandatory Cost
	Schedule 1(c)

	 	—
	 	Tax Restructuring
	Schedule 2

	 	—
	 	Intentionally Omitted
	Schedule 3

	 	—
	 	Existing LCs
	Schedule 4

	 	—
	 	Litigation
	Schedule 5

	 	—
	 	Subsidiaries
	Schedule 6

	 	—
	 	Environmental Matters
	Schedule 7

	 	—
	 	Existing Indebtedness
	Schedule 8

	 	—
	 	Existing Investments
	Schedule 9

	 	—
	 	Existing Liens







v









 








CREDIT AGREEMENT




     This Credit Agreement (this “Agreement”), dated as of September 19, 2008, is among Gardner
Denver, Inc., a Delaware corporation (the “Parent Borrower”), Gardner Denver Holdings GmbH & Co KG,
a company organized under the laws of Germany (the “German Borrower”), GD First (UK) Limited, a
company organized under the laws of England and Wales (the “UK Borrower”), each Foreign Subsidiary
of the Parent Borrower that is, or may hereafter become, a party hereto in accordance with
Section 2.19 (whether now existing or hereafter formed, each a “Non-U.S. Subsidiary
Borrower” and, together with the Parent Borrower, the German Borrower and the UK Borrower,
collectively referred to as the “Borrowers”), the institutions from time to time parties hereto as
Lenders, JPMorgan Chase Bank, N.A., as an LC Issuer, the Swing Line Lender and as Agent for the
Lenders, Bank of America, N.A., as the Syndication Agent, Mizuho Corporate Bank, Ltd. and U.S.
Bank, National Association as Documentation Agents. The parties hereto agree as follows:



ARTICLE I: DEFINITIONS




     As used in this Agreement:



     “Acquisition” means any transaction, or any series of related transactions, consummated on or
after the Closing Date, by which the Parent Borrower or any of its Subsidiaries (i) acquires any
going business concern or all or substantially all of the assets of any firm, corporation or other
business entity, or division thereof (other than the Parent Borrower or any of its Subsidiaries),
whether through purchase of assets, a reorganization, merger or otherwise or (ii) directly or
indirectly acquires (in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securities of a corporation which
have ordinary voting power for the election of directors (other than securities having such power
only by reason of the happening of a contingency) or a majority (by percentage or voting power) of
the outstanding ownership interests of a partnership or limited liability company (other than a
Subsidiary formed for the purpose of carrying forward a business theretofore operated by the Parent
Borrower or any of its Subsidiaries).



     “Advance” means a borrowing hereunder consisting of the aggregate amount of the several Loans
made by the Lenders on the same Borrowing Date to any Borrower of the same Type and, in the case of
Eurocurrency Advances, in the same currency and for the same Eurocurrency Interest Period.



     “Affected Foreign Subsidiary” means any Foreign Subsidiary to the extent such Foreign
Subsidiary acting as a Subsidiary Guarantor would cause a Deemed Dividend Problem.



     “Affiliate” of any Person means any other Person directly or indirectly controlling,
controlled by or under common control with such Person. A Person shall be deemed to control
another Person if the controlling Person owns 10% or more of any class of voting securities (or
other ownership interests) of the controlled Person or possesses, directly or indirectly, the power
to direct or cause the direction of the management or policies of the controlled Person, whether
through ownership of stock, by contract or otherwise.



 









 





     “Agent” means JPMorgan in its capacity as contractual representative for the Lenders pursuant
to Article X, and not in its individual capacity as a Lender, and any successor Agent
appointed pursuant to Article X.



     “Aggregate Outstanding Credit Exposure” means, as of any day, the aggregate of the Outstanding
Credit Exposure of all the Lenders.



     “Aggregate Outstanding LC Exposure” means, as of any day, the aggregate of the Outstanding LC
Exposure of all the Lenders.



     “Aggregate Revolving Loan Commitment” means the aggregate of the Revolving Loan Commitments of
all the Revolving Loan Lenders, as may be adjusted from time to time pursuant to the terms hereof.
The initial Aggregate Revolving Loan Commitment is Three Hundred Ten Million and 00/100 Dollars
($310,000,000).



     “Aggregate Revolving Loan Commitment Reduction Notice” is defined in Section 2.7
hereof.



     “Aggregate Term Loan Commitment” means the aggregate of the Term Loan Dollar Tranche
Commitments and the Term Loan Euro Tranche Commitments of all of the Term Loan Lenders.



     “Agreed Currencies” means (i) Dollars, (ii) so long as such currencies remain Eligible
Currencies, Pounds Sterling, Canadian Dollars and euro; and (iii) with respect to Facility LCs, any
other Eligible Currency which the Parent Borrower requests the Agent to include as an Agreed
Currency hereunder and which is acceptable to the Agent and one-hundred percent (100%) of the
Lenders; provided, that the Agent shall promptly notify each Lender of each such
request and each Lender shall be deemed not to have agreed to each such request unless its written
consent thereto has been received by the Agent within five (5) Business Days from the date of such
notification by the Agent to such Lender.



     “Agreement” means this Credit Agreement, as it may be amended, restated, supplemented or
otherwise modified and in effect from time to time.



     “Agreement Accounting Principles” means generally accepted accounting principles as in effect
in the United States from time to time; provided, however, that if the Parent
Borrower notifies the Agent that the Parent Borrower wishes to amend any covenant in Article
VI to eliminate the effect of any change in generally accepted accounting principles on the
operation of such covenant (or if the Agent notifies the Parent Borrower that the Required Lenders
wish to amend Article VI for such purpose), then the Borrowers’ compliance with such
covenant shall be determined on the basis of generally accepted accounting principles in effect
immediately before the relevant change in generally accepted accounting principles became
effective, until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrowers and the Required Lenders.



     “Alternate Base Rate” means, for any day, a rate of interest per annum equal to the higher of
(i) the Prime Rate for such day and (ii) the sum of Federal Funds Effective Rate for such day plus
1/2% per annum.



     “Applicable Commercial Facility LC Fee” means, with respect to any commercial Facility LC, for
any day, the percentage rate per annum set forth below opposite the Leverage Ratio in effect on
such day:



2









 





	 	 	 	 	 	 	 	 	 
	Leverage	 	Applicable
	Ratio:	 	Commercial Facility LC Fee:
	 	 	But Less than	 	 	 	 
	Greater than	 	or Equal to	 	 	 	 
	—

	 	 	0.75	 	 	 	0.45	%
	0.75

	 	 	1.50	 	 	 	0.65	%
	1.50

	 	 	2.25	 	 	 	0.85	%
	2.25

	 	 	3.00	 	 	 	0.925	%
	3.00

	 	 	—	 	 	 	1.00	%





The Applicable Commercial Facility LC Fee shall be adjusted (upward or downward) effective five
Business Days after the Agent has received (and such adjustment, if any, shall be based upon) the
Parent Borrower’s compliance certificate delivered with the Parent Borrower’s financial statements
pursuant to clauses (i) and (ii) of Section 6.1; provided,
however, that before receipt by the Agent of the Parent Borrower’s compliance certificate
delivered with the Parent Borrower’s financial statements pursuant to clauses (i) and
(ii) of Section 6.1 for the fiscal quarter ending December 31, 2008, the Applicable
Commercial Facility LC Fee shall be 0.85% per annum (unless such financial statements for the
fiscal quarter ending on or about September 30, 2008 demonstrate that a higher rate per annum in
accordance with the preceding pricing grid should have been applicable during such period, in which
case such higher rate per annum shall be effective five Business Days after the Agent has received
such September 30, 2008 financial statements); and provided, further, that if the
Parent Borrower fails to deliver to the Agent a compliance certificate and financial statements
pursuant to clauses (i) and (ii) of Section 6.1 for any reason, then the
Applicable Commercial Facility LC Fee shall be 1.00%, effective until five Business Days after such
compliance certificate and financial statements are received by the Agent.




     “Applicable Facility Fee” means for any day, the percentage rate per annum set forth below
opposite the Leverage Ratio in effect on such day:



	 	 	 	 	 	 	 	 	 
	Leverage	 	Applicable
	Ratio:	 	Facility Fee:
	 	 	But Less than	 	 	 	 
	Greater than	 	or Equal to	 	 	 	 
	—

	 	 	0.75	 	 	 	0.30	%
	0.75

	 	 	1.50	 	 	 	0.35	%
	1.50

	 	 	2.25	 	 	 	0.40	%
	2.25

	 	 	3.00	 	 	 	0.45	%
	3.00

	 	 	—	 	 	 	0.50	%





The Applicable Facility Fee shall be adjusted (upward or downward) effective five Business Days
after the Agent has received (and such adjustment, if any, shall be based upon) the Parent
Borrower’s compliance certificate delivered with the Parent Borrower’s financial statements
pursuant to clauses (i) and (ii) of Section 6.1; provided,
however, that before receipt by the Agent of the Parent Borrower’s compliance certificate
delivered with the Parent Borrower’s financial statements pursuant to clauses (i) and
(ii) of Section 6.1 for the fiscal quarter ending December 31, 2008, the Applicable
Facility Fee shall be 0.40% per annum (unless such financial statements for the fiscal quarter
ending on or about September 30, 2008 demonstrate that a higher rate per annum in accordance with
the preceding pricing grid should




3









 








     have been applicable during such period, in which case such higher rate per annum shall be
effective five Business Days after the Agent has received such September 30, 2008 financial
statements); and provided, further, that if the Parent Borrower fails to deliver to
the Agent a compliance certificate and financial statements pursuant to clauses (i) and
(ii) of Section 6.1 for any reason, then the Applicable Facility Fee shall be
0.50%, effective until five Business Days after such compliance certificate and financial
statements are received by the Agent.



     “Applicable Facility LC Fronting Fee” means, with respect to any Facility LC, for any day, the
percentage rate per annum set forth below opposite the Leverage Ratio in effect on such day:



	 	 	 	 	 	 	 	 	 
	Leverage	 	Applicable
	Ratio:	 	Facility LC Fronting Fee:
	 	 	But Less than	 	 	 	 
	Greater than	 	or Equal to	 	 	 	 
	—

	 	 	0.75	 	 	 	0.125	%
	0.75

	 	 	1.50	 	 	 	0.125	%
	1.50

	 	 	2.25	 	 	 	0.125	%
	2.25

	 	 	3.00	 	 	 	0.125	%
	3.00

	 	 	—	 	 	 	0.20	%






     The Applicable Facility LC Fronting Fee shall be adjusted (upward or downward) effective five
Business Days after the Agent has received (and such adjustment, if any, shall be based upon) the
Parent Borrower’s compliance certificate delivered with the Parent Borrower’s financial statements
pursuant to clauses (i) and (ii) of Section 6.1; provided,
however, that before receipt by the Agent of the Parent Borrower’s compliance certificate
delivered with the Parent Borrower’s financial statements pursuant to clauses (i) and
(ii) of Section 6.1 for the fiscal quarter ending December 31, 2008, the Applicable
Facility LC Fronting Fee shall be 0.125% per annum (unless such financial statements for the fiscal
quarter ending on or about September 30, 2008 demonstrate that a higher rate per annum in
accordance with the preceding pricing grid should have been applicable during such period, in which
case such higher rate per annum shall be effective five Business Days after the Agent has received
such September 30, 2008 financial statements); and provided, further, that if the
Parent Borrower fails to deliver to the Agent a compliance certificate and financial statements
pursuant to clauses (i) and (ii) of Section 6.1 for any reason, then the
Applicable Facility LC Fronting Fee shall be 0.20%, effective until five Business Days after such
compliance certificate and financial statements are received by the Agent.



     “Applicable Margin” means, with respect to a Loan for any day, the applicable percentage rate
per annum set forth below opposite the Leverage Ratio in effect on such day:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Leverage Ratio:	 	Applicable Margin:
	 	 	 	 	Eurocurrency	 	Eurocurrency	 	Floating Rate
	 	 	But Less than	 	Loans which are	 	Loans which are	 	Loans
	Greater than	 	or Equal to	 	Revolving Loans	 	Term Loans	 	 	 	 
	—

	 	 	0.75	 	 	 	1.20	%	 	 	1.50	%	 	 	0.25	%
	0.75

	 	 	1.50	 	 	 	1.65	%	 	 	2.00	%	 	 	0.75	%
	1.50

	 	 	2.25	 	 	 	2.10	%	 	 	2.50	%	 	 	1.25	%
	2.25

	 	 	3.00	 	 	 	2.30	%	 	 	2.75	%	 	 	1.50	%






4









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Leverage Ratio:	 	Applicable Margin:
	 	 	 	 	Eurocurrency	 	Eurocurrency	 	 
	 	 	But Less than	 	Loans which are	 	Loans which are	 	Floating Rate
	Greater than	 	or Equal to	 	Revolving Loans	 	Term Loans	 	Loans
	3.00

	 	 	—	 	 	 	2.50	%	 	 	3.00	%	 	 	1.75	%





The Applicable Margin for new as well as outstanding Loans shall be adjusted (upward or downward)
effective five Business Days after the Agent has received (and such adjustment, if any, shall be
based upon) the Parent Borrower’s compliance certificate delivered with the Parent Borrower’s
financial statements pursuant to clauses (i) and (ii) of Section 6.1;
provided, however, that before receipt by the Agent of the Parent Borrower’s
compliance certificate delivered with the Parent Borrower’s financial statements pursuant to
clauses (i) and (ii) of Section 6.1 for the fiscal quarter ending December
31, 2008, the Applicable Margin for (a) Eurocurrency Loans which are Revolving Loans shall be
2.10%, (b) Eurocurrency Loans which are Term Loans shall be 2.50% and (c) Floating Rate Loans shall
be 1.25% (unless, in each case, such financial statements for the fiscal quarter ending on or about
September 30, 2008 demonstrate that a higher rate per annum in accordance with the preceding
pricing grid should have been applicable during such period, in which case such higher rate per
annum shall be effective five Business Days after the Agent has received such September 30, 2008
financial statements); and provided, further, that if the Parent Borrower fails to
deliver to the Agent a compliance certificate and financial statements pursuant to clauses
(i) and (ii) of Section 6.1 for any reason, then the Applicable Margin for (a)
Eurocurrency Loans which are Revolving Loans shall be 2.50%, (b) Eurocurrency Loans which are Term
Loans shall be 3.00% and (c) Floating Rate Loans shall be 1.75%, in each case effective until five
Business Days after such compliance certificate and financial statements are received by the Agent.




     “Applicable Pledge Percentage” means 100% but 65% in the case of a pledge by the Parent
Borrower or any Domestic Subsidiary of its Equity Interests in an Affected Foreign Subsidiary.



     “Applicable Stand-by Facility LC Fee” means, with respect to any stand-by Facility LC, for any
day, the percentage rate per annum set forth below opposite the Leverage Ratio in effect on such
day:



	 	 	 	 	 	 	 	 	 
	Leverage	 	Applicable
	Ratio:	 	Stand-by Facility LC Fee:
	 	 	But Less than	 	 	 	 
	Greater than	 	or Equal to	 	 	 	 
	—

	 	 	0.75	 	 	 	1.20	%
	0.75

	 	 	1.50	 	 	 	1.65	%
	1.50

	 	 	2.25	 	 	 	2.10	%
	2.25

	 	 	3.00	 	 	 	2.30	%
	3.00

	 	 	—	 	 	 	2.50	%





The Applicable Stand-by Facility LC Fee shall be adjusted (upward or downward) effective five
Business Days after the Agent has received (and such adjustment, if any, shall be based upon) the
Parent Borrower’s compliance certificate delivered with the Parent Borrower’s financial statements
pursuant to clauses (i) and (ii) of Section 6.1; provided,
however, that before receipt by the Agent of the Parent Borrower’s compliance certificate
delivered with the Parent Borrower’s financial statements pursuant to clauses (i) and
(ii) of Section 6.1 for the fiscal quarter ending December 31, 2008, the Applicable
Stand-by Facility LC Fee shall be 2.10% per annum (unless such financial statements for the fiscal
quarter ending on or about September 30, 2008 demonstrate that a higher rate per annum in
accordance with the




5









 







preceding pricing grid should have been applicable during such period, in which case such higher
rate per annum shall be effective five Business Days after the Agent has received such September
30, 2008 financial statements); and provided, further, that if the Parent Borrower
fails to deliver to the Agent a compliance certificate and financial statements pursuant to
clauses (i) and (ii) of Section 6.1 for any reason, then the Applicable
Stand-by Facility LC Fee shall be 2.50%, effective until five Business Days after such compliance
certificate and financial statements are received by the Agent.




     “Approximate Equivalent Amount” of any currency with respect to any amount of Dollars shall
mean the Equivalent Amount of such currency with respect to such amount of Dollars at such date,
rounded up to the nearest amount of such currency as determined by the Agent from time to time.



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



     “Arranger” means J.P. Morgan Securities Inc.



     “Article” means an article of this Agreement unless another document is specifically
referenced.



     “Asset Sale” means, with respect to the Parent Borrower or any Subsidiary, the sale, lease,
conveyance, disposition or other transfer by such Person of any of its assets (including by way of
a sale-leaseback transaction, and including the sale or other transfer of any of the capital stock
or other equity interests of any Subsidiary of such Person, but excluding the disposition or other
transfer of Receivables and Related Security pursuant to a Permitted Receivables Transfer) to any
Person other than the Parent Borrower or any of its Subsidiaries, other than (i) the sale of
inventory in the ordinary course of business, (ii) the sale or other disposition of any obsolete,
excess, damaged or worn-out Equipment disposed of in the ordinary course of business, (iii) leases
of assets in the ordinary course of business consistent with past practice and (iv) exclusive of
sales or dispositions listed in items (i) through (iii) above, other sales or dispositions of
assets with an aggregate fair market value not to exceed, during any fiscal year of the Parent
Borrower, $25,000,000 (it being understood and agreed that only proceeds in excess of $25,000,000
during any fiscal year of the Parent Borrower shall be included in any calculation of Net Cash
Proceeds under Section 2.4(c)(ii)).



     “Assumption Letter” means a letter of a Foreign Subsidiary of the Parent Borrower, addressed
to the Lenders in substantially the form of Exhibit A hereto pursuant to which such
Subsidiary agrees to become a “Non-U.S. Subsidiary Borrower” and agrees to be bound by the terms
and conditions hereof.



     “Authorized Officer” means (i) with respect to the Parent Borrower, any of the President, the
Chief Executive Officer or the Chief Financial Officer of the applicable Borrower, acting singly;
provided, that with respect to Borrowing Notices, Conversion/Continuation Notices, requests
for the issuance or modifications of Facility LCs, commitment reduction notices and prepayment
notices, the Treasurer, Assistant Treasurer or Corporate Controller of the Parent Borrower, acting
singly, shall also be deemed an Authorized Officer and (ii) with respect to any Non-U.S. Subsidiary
Borrower, such officers of such Non-U.S. Subsidiary Borrower as the President, the Chief Executive
Officer or the Chief Financial Officer of the Parent Borrower may designate in the Assumption
Letter to which such Non-U.S. Subsidiary Borrower is a party.



6









 





     “Borrowers” means, collectively, the Parent Borrower, the German Borrower, the UK Borrower
and, after it has become a party hereto, each other Non-U.S. Subsidiary Borrower.



     “Borrowing Date” means a date on which an Advance or a Swing Line Loan is made hereunder.



     “Borrowing Notice” is defined in Section 2.9 hereof.



     “Business Day” means (i) with respect to any borrowing, payment or rate selection of
Eurocurrency Advances, a day (other than a Saturday or Sunday) on which banks generally are open in
Chicago and New York for the conduct of substantially all of their commercial lending activities,
and on which dealings in United States Dollars and the other Agreed Currencies are carried on in
the London interbank market and (ii) for all other purposes, a day (other than a Saturday or
Sunday) on which banks generally are open in Chicago and New York for the conduct of substantially
all of their commercial lending activities.



     “Buying Lender” is defined in Section 2.27(b) hereof.



     “Capitalized Lease” of a Person means any lease of Property by such Person as lessee which
would be capitalized on a balance sheet of such Person prepared in accordance with Agreement
Accounting Principles.



     “Capitalized Lease Obligations” of a Person means the amount of the obligations of such Person
under Capitalized Leases which would be shown as a liability on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.



     “Change” is defined in Section 3.2 hereof.



     “Change in Control” means, with respect to the Parent Borrower, the acquisition by any Person
or two or more Persons acting in concert, of beneficial ownership (within the meaning of Rule 13d-3
of the Securities and Exchange Commission under the Securities Exchange Act of 1934) of 30% or more
of the outstanding shares of voting stock of the Parent Borrower, and, with respect to any Non-U.S.
Subsidiary Borrower, the acquisition by any Person (other than the Parent Borrower or any of its
Wholly-Owned Subsidiaries), or two or more Persons acting in concert, of beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934) of 30% or more of the outstanding shares of voting stock of any such
Borrower.



     “Closing Date” means September 19, 2008.



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



     “Collateral Documents” means, collectively, the Pledge Agreements, together with the
documents, instruments and agreements executed in connection therewith.



     “Commission” means the Securities and Exchange Commission, an agency of the United States
government, or its successor.



     “Commitment” means, for each Lender, the obligation of such Lender to make Revolving Loans and
Term Loans and participate in Facility LCs and Swing Line Loans in the aggregate not exceeding the



7









 







amount set forth opposite its name on Schedule 1(a) hereto or as set forth in any
Notice of Assignment relating to any assignment that has become effective pursuant to Section
12.3.2, as such amount may be modified from time to time pursuant to the terms hereof.



     “Commitment Increase Notice” is defined in Section 2.27(a) hereof.



     “CompAir Acquisition” means the Acquisition by the Parent Borrower or its nominee Subsidiary
of all of the issued and outstanding equity interests in the Target pursuant to the CompAir
Acquisition Agreement.



     “CompAir Acquisition Agreement” means the Share Purchase Agreement dated as of July 20, 2008
among the Parent Borrower, Alchemy Partners (Guernsey) Limited and the other vendors identified
therein, pursuant to which the Parent Borrower or its nominee Subsidiary shall purchase all issued
and outstanding shares of the Target and consummate the CompAir Acquisition.



     “Condemnation” is defined in Section 7.8 hereof.



     “Consolidated Adjusted EBIT” means, for any period of four consecutive fiscal quarters of the
Parent Borrower, on a consolidated basis for the Parent Borrower and its Subsidiaries in accordance
with Agreement Accounting Principles, the sum of the amounts for such period, without duplication,
of (i) Consolidated EBIT, plus (ii) non-cash charges (other than depreciation and
amortization expense) to the extent deducted in computing Consolidated Net Income, plus
(ii) extraordinary losses incurred other than in the ordinary course of business to the extent
deducted in computing Net Income, minus (iii) extraordinary gains realized other than in
the ordinary course of business to the extent added in computing Net Income (iv) plus
(minus) any increases (decreases) in the LIFO reserve to the extent deducted (added) in
computing Net Income. “Consolidated Adjusted EBIT” for any period shall be calculated to be the
actual amount for such period for the Parent Borrower and its Subsidiaries; provided, upon
the consummation of any Acquisition, for calculations made from and after such Acquisition,
Consolidated Adjusted EBIT shall be calculated on a pro forma basis including the
target’s Consolidated Adjusted EBIT for the applicable period derived from the target’s historical
financial statements, broken down by fiscal quarter in the Parent Borrower’s reasonable judgment
(the amounts from which may be adjusted solely as may be necessary to comply with Agreement
Accounting Principles).



     “Consolidated Adjusted EBITDA” means, for any period of four consecutive fiscal quarters of
the Parent Borrower, on a consolidated basis for the Parent Borrower and its Subsidiaries in
accordance with Agreement Accounting Principles, the sum of the amounts for such period, without
duplication, of (i) Consolidated EBIT, plus (ii) depreciation expense to the extent
deducted in computing Consolidated Net Income, plus (iii) amortization expense, including,
without limitation, amortization of intangible assets, to the extent deducted in computing Net
Income, plus (iv) other non-cash charges to the extent deducted in computing Net Income,
plus (v) extraordinary losses incurred other than in the ordinary course of business to the
extent deducted in computing Net Income, minus (vi) extraordinary gains realized other than
in the ordinary course of business to the extent added in computing Net Income (vii) plus
(minus) any increases (decreases) in the LIFO reserve to the extent deducted (added) in
computing Net Income. “Consolidated Adjusted EBITDA” for any period shall be calculated to be the
actual amount for such period for the Parent Borrower and its Subsidiaries; provided, upon
the consummation of any Acquisition, for calculations made from and after such Acquisition,
Consolidated Adjusted EBITDA shall be calculated on a pro forma basis including the
target’s Consolidated Adjusted EBITDA for the applicable period derived from the target’s
historical financial statements, broken down



8









 







by fiscal quarter in the Parent Borrower’s reasonable judgment (the amounts from which may be
adjusted solely as may be necessary to comply with Agreement Accounting Principles).



     “Consolidated Capital Expenditures” means, for any period of four consecutive fiscal quarters
of the Parent Borrower, the aggregate of all expenditures (whether paid in cash or accrued as
liabilities and including that portion of Capital Leases which is capitalized on the consolidated
balance sheet of the Parent Borrower and its Subsidiaries) by the Parent Borrower and its
Subsidiaries during that period that, in conformity with Agreement Accounting Principles, are
required to be included in or reflected by the property, plant or equipment or similar fixed asset
accounts reflected in the consolidated balance sheet of the Parent Borrower and its Subsidiaries.



     “Consolidated EBIT” means, for any period of four consecutive fiscal quarters of the Parent
Borrower, on a consolidated basis for the Parent Borrower and its Subsidiaries in accordance with
Agreement Accounting Principles, the sum of the amounts for such period, without duplication, of
(i) Consolidated Net Income, plus (ii) Consolidated Interest Expense to the extent deducted
in computing Net Income, plus (iii) charges against income for all domestic and foreign,
federal, state and local taxes to the extent deducted in computing Net Income.



     “Consolidated Interest Coverage Ratio” means, for any period of four consecutive fiscal
quarters of the Parent Borrower, the ratio of (i) Consolidated Adjusted EBIT for such period to
(ii) Consolidated Interest Expense for such period.



     “Consolidated Interest Expense” means, for any period of four consecutive fiscal quarters of
the Parent Borrower, total interest expense (whether paid or accrued) of the Parent Borrower and
its Subsidiaries for such period determined in accordance with Agreement Accounting Principles
including, without limitation, such interest expense as may be attributable to Capitalized Leases,
Receivables Facility Financing Costs, the discount or implied interest component of Off-Balance
Sheet Liabilities as well as all commissions, discounts and other fees and charges owed with
respect to Letters of Credit and net costs (net of any revenues) under any interest rate swap,
exchange or cap agreements.



     “Consolidated Net Income” means, for any fiscal quarter of the Parent Borrower, the positive
consolidated net income of the Parent Borrower and its Subsidiaries for such quarter determined in
accordance with Agreement Accounting Principles; provided, that there shall be excluded (i)
the income (or loss) of any Affiliate of the Parent Borrower or other Person (other than a
Subsidiary of the Parent Borrower) in which any Person (other than the Parent Borrower or any of
its Subsidiaries) has a joint interest, except to the extent of the amount of dividends or other
distributions actually paid to the Parent Borrower, or any of its Subsidiaries by such Affiliate or
other Person during such period, (ii) the income (or loss) of any Person accrued prior to the date
it becomes a Subsidiary of the Parent Borrower or is merged into or consolidated with the Parent
Borrower or any of its Subsidiaries or that Person’s assets are acquired by the Parent Borrower or
any of its Subsidiaries and (iii) the income of any Subsidiary to the extent that the declaration
or payment of dividends or similar distributions by that Subsidiary of that income is not at the
time permitted by operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that Subsidiary.



     “Consolidated Total Debt” means the aggregate amount of all Indebtedness (other than Hedging
Obligations) on a consolidated basis for the Parent Borrower and its Subsidiaries as of a
referenced date.



     “Contingent Obligation” of a Person means any agreement, undertaking or arrangement by which
such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds for



9









 







the payment of, or otherwise becomes or is contingently liable upon, the obligation or
liability of any other Person, or agrees to maintain the net worth or working capital or other
financial condition of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any contingent reimbursement obligations of such
Person with respect to any Letter of Credit, as well as any comfort letter, operating agreement or
take-or-pay contract (but, in the case of each such Contingent Obligation, only to the extent that
a monetary value can reasonably be attributed thereto; it being understood, for the avoidance of
doubt, however, that with respect to any Contingent Obligation which is either a guaranty of a
monetary obligation of another Person or a reimbursement obligation with respect to a Letter of
Credit, the amount of such Contingent Obligation shall be deemed equal to the amount of such
monetary obligation or Letter of Credit, as the case may be).



     “Conversion/Continuation Notice” is defined in Section 2.10 hereof.



     “Controlled Group” means all members of a controlled group of corporations or other business
entities and all trades or businesses (whether or not incorporated) under common control which,
together with the Parent Borrower or any of its Subsidiaries, are treated as a single employer
under Section 414 of the Code.



     “Cooper” means Cooper Industries, Inc., an Ohio corporation.



     “Credit Documents” means, collectively, the Parent Borrower Credit Documents, the Non-U.S.
Subsidiary Borrower Credit Documents, the Collateral Documents, the Parent Guaranty and the
Subsidiary Guaranties and any other instruments, agreements or documents delivered pursuant thereto
or in connection therewith, in each case, as the same has been amended, restated, supplemented or
otherwise modified from time to time.



     “Credit Extension” means either the funding of an Advance or Swing Line Loan or the issuance
of or amendment to a Facility LC hereunder.



     “Credit Extension Date” means the Borrowing Date for an Advance or Swing Line Loan or the
issuance date for a Facility LC.



     “Cure Loan” is defined in Section 8.2 hereof.



     “Deemed Dividend Problem” is defined in Section 6.10 hereof.



     “Default” means an event described in Article VII.



     “Disqualified Stock” means any capital stock that, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable), or upon the happening of
any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable at the option of the holder thereof, in whole or in part, on or prior to
the date that is ninety-one (91) days after the Maturity Date.



     “Dollar” and “$” means the lawful currency of the United States of America.



     “Dollar Amount” of any currency at any date shall mean (i) the amount of such currency if such
currency is Dollars or (ii) the Equivalent Amount of Dollars if such currency is any currency other
than Dollars, calculated on the basis of the arithmetical mean of the buy and sell spot rates of
exchange of the



10









 







Agent for such currency on the London market at 11:00 a.m., London time, two Business Days
prior to the date on which such amount is to be determined.



     “Domestic Subsidiary” means each Subsidiary other than a Foreign Subsidiary.



     “Effective Commitment Amount” is defined in Section 2.27(a) hereof.



     “Eligible Currency” means any currency other than Dollars that is readily available, freely
traded, in which deposits are customarily offered to banks in the London interbank market,
convertible into Dollars in the international interbank market available to the Lenders in such
market and as to which an Equivalent Amount may be readily calculated. If, after the designation
by the Lenders of any currency as an Agreed Currency, currency control or other exchange
regulations are imposed in the country in which such currency is issued with the result that
different types of such currency are introduced, such country’s currency is, in the determination
of the Agent, (i) no longer readily available or freely traded or (ii) as to which, in the
determination of the Agent, an Equivalent Amount is not readily calculable ((i) and (ii) a
“Disqualifying Event”), then the Agent shall promptly notify the Lenders and the Borrowers, and
such country’s currency shall no longer be an Agreed Currency until such time as the Disqualifying
Event(s) no longer exist, but in any event within five (5) Business Days of receipt of such notice
from the Agent, each Borrower shall repay all Loans in such currency to which the Disqualifying
Event applies or convert such Loans into the Equivalent Amount of Loans in Dollars or another
Agreed Currency, subject to the other terms contained in Article II (it being understood
and agreed that no Non-U.S. Subsidiary Borrower shall be liable to repay any Loans made to any
other Borrower).



     “Equipment” means all of the Parent Borrower’s and each Subsidiary’s present and future
(i) equipment, including, without limitation, machinery, manufacturing, distribution, data
processing and office equipment, assembly systems, tools, molds, dies, fixtures, appliances,
furniture, furnishings, vehicles, vessels, aircraft, aircraft engines, and trade fixtures,
(ii) other tangible personal property (other than inventory), and (iii) any and all accessions,
parts and appurtenances attached to any of the foregoing or used in connection therewith, and any
substitutions therefor and replacements, products and proceeds thereof.



     “Equivalent Amount” of any Agreed Currency with respect to any amount of Dollars at any date
shall mean the equivalent in such Agreed Currency of such amount of Dollars, calculated on the
basis of the arithmetical mean of the buy and sell spot rates of exchange of the Agent for such
other Agreed Currency at 11:00 a.m., London time, two Business Days prior to the date on which such
amount is to be determined.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to
time, and any rule or regulation issued thereunder.



     “EU” means the European Union.



     “euro” and/or “EUR” means the single currency of the participating member states of the EU.



     “Eurocurrency Advance” means an Advance which bears interest at a Eurocurrency Rate.



     “Eurocurrency Base Rate” means, with respect to a Eurocurrency Advance for the relevant
Eurocurrency Interest Period, the applicable British Bankers’ Association Interest Settlement Rate
for deposits in the applicable Agreed Currency appearing on the applicable Reuters Screen for such
Agreed



11









 







Currency as of 11:00 a.m. (London time) two Business Days prior to (or, in the case of Loans
denominated in Pounds Sterling, on) the first day of such Eurocurrency Interest Period, and having
a maturity equal to such Eurocurrency Interest Period, provided that, (i) if the applicable
Reuters Screen for such Agreed Currency is not available to the Agent for any reason, the
applicable Eurocurrency Base Rate for the relevant Eurocurrency Interest Period shall instead be
the applicable British Bankers’ Association Interest Settlement Rate for deposits in the applicable
Agreed Currency as reported by any other generally recognized financial information service as of
11:00 a.m. (London time) two Business Days prior to (or, in the case of Loans denominated in Pounds
Sterling, on) the first day of such Eurocurrency Interest Period, and having a maturity equal to
such Eurocurrency Interest Period, and (ii) if no such British Bankers’ Association Interest
Settlement Rate is available, the applicable Eurocurrency Base Rate for the relevant Eurocurrency
Interest Period shall instead be the rate determined by the Agent to be the rate at which JPMorgan
offers to place deposits in the applicable Agreed Currency with first-class banks in the London
interbank market at approximately 11:00 a.m. (London time) two Business Days prior to (or, in the
case of Loans denominated in Pounds Sterling, on) the first day of such Eurocurrency Interest
Period, in the approximate amount of JPMorgan’s relevant Eurocurrency Loan and having a maturity
equal to such Eurocurrency Interest Period. The Eurocurrency Base Rate shall be rounded to the
next higher multiple of 1/16 of 1% if the rate is not such a multiple.



     “Eurocurrency Interest Period” means, with respect to a Eurocurrency Advance, a period as the
applicable Borrower may choose, of one week, one, two, three or six months, or of nine or twelve
months if the Agent determines that a nine or twelve month period, as the case may be, is
reasonably available, each such period to commence on a Business Day selected by the applicable
Borrower on which a Eurocurrency Advance is made to such Borrower pursuant to this Agreement. Such
Eurocurrency Interest Period shall end on (but exclude) the day which corresponds numerically to
such date one week or one, two, three, six, nine or twelve months thereafter, as the case may be,
provided, however, that if there is no such numerically corresponding day in such
next week or next, second, third, sixth, ninth or twelfth succeeding month, as applicable, such
Eurocurrency Interest Period shall end on the last Business Day of such next week or next, second,
third, sixth, ninth or twelfth succeeding month, as applicable. If a Eurocurrency Interest Period
would otherwise end on a day which is not a Business Day, such Eurocurrency Interest Period shall
end on the next succeeding Business Day, provided, however, that if said next
succeeding Business Day falls in a new calendar month, such Eurocurrency Interest Period shall end
on the immediately preceding Business Day.



     “Eurocurrency Loan” means a Loan which bears interest at a Eurocurrency Rate.



     “Eurocurrency Payment Office” of the Agent shall mean, for each of the Agreed Currencies, the
office, branch or affiliate of the Agent, specified from time to time as the “Eurocurrency Payment
Office” for such Agreed Currency by the Agent to the Borrowers and each Lender.



     “Eurocurrency Rate” means, with respect to a Eurocurrency Advance for the relevant
Eurocurrency Interest Period, a rate per annum equal to the sum of (i) the quotient of (a) the
Eurocurrency Base Rate applicable to such Eurocurrency Interest Period, divided by (b) one
minus the Reserve Requirement (expressed as a decimal) applicable to such Eurocurrency
Interest Period, plus (ii) the then Applicable Margin, changing as and when the Applicable
Margin changes, plus (iii) for Advances by a Lender from its office or branch in the United
Kingdom, the Mandatory Cost, plus (iv) any other mandatory costs imposed by any governmental or
regulatory authority.



12









 





     “Existing Credit Agreement” means that certain Third Amended and Restated Credit Agreement
dated as of May 13, 2005, by and among the Borrowers, certain of the Lenders hereto, certain other
lenders and the Agent (as amended, supplemented or otherwise modified).



     “Existing Indebtedness” means any and all Indebtedness of the Parent Borrower and its
Subsidiaries under the Existing Credit Agreement.



     “Existing LCs” means each of the stand-by or commercial Letters of Credit issued under and
pursuant to the Existing Credit Agreement and which are described in Schedule 3 hereto.



     “Facility” means the Revolving Loan Facility or the Term Loan Facility, as applicable.



     “Facility Fee” is defined in Section 2.7 hereof.



     “Facility LC” means each Existing LC and each stand-by or commercial Letter of Credit issued
under Section 2.23(a).



     “Facility LC Application Agreement” means each and every application agreement or other
instrument or agreement requested by the LC Issuer pursuant to Section 2.23(c).



     “Federal Funds Effective Rate” means, for any day, an interest rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published for such day (or, if
such day is not a Business Day, for the immediately preceding 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 at approximately 10:00 a.m. (Chicago time) on such day on such
transactions received by the Agent from three Federal funds brokers of recognized standing selected
by the Agent in its sole discretion.



     “Financial Assistance Problem” is defined in Section 6.10 hereof.



     “Financing” means, with respect to the Parent Borrower or any Subsidiary, (i) the issuance or
sale by such Person of any equity interests (including, without limitation, common stock, preferred
stock, warrants and any other equity interests) in such Person (other than equity securities issued
prior to the Term Loan Funding Date to finance the CompAir Acquisition and other than equity
securities sold or issued to the Parent Borrower or any Subsidiary by any other Subsidiary or to
any employee of the Parent Borrower or any Subsidiary pursuant to the Parent Borrower’s long-term
incentive plan) and (ii) the issuance or sale by such Person of any Indebtedness (other than
Indebtedness permitted under clauses (i), (iv), (v), (vi), (vii), (viii) and (ix) of Section
6.12).



     “First-Tier Foreign Subsidiary” means each Foreign Subsidiary with respect to which any one or
more of the Parent Borrower and its Domestic Subsidiaries directly owns or controls more than 50%
of such Foreign Subsidiary’s voting capital stock and other equity interests.



     “Floating Rate” means, for any day, the sum of (i) a rate per annum equal to the Alternate
Base Rate for such day and (ii) the then Applicable Margin, changing when and as the Alternate Base
Rate changes and Applicable Margin changes.



     “Floating Rate Advance” means an Advance which bears interest at the Floating Rate.



13









 





     “Floating Rate Loan” means a Loan which bears interest at the Floating Rate.



     “Foreign Subsidiary” means a Subsidiary organized under the laws of a jurisdiction which is
not located in the United States of America.



     “GMAC Facility” means the revolving facility of GBP 30,000,000 governed by that certain
Multicurrency Revolving Facility Agreement dated October 13, 2006 by and among GMAC Commercial
Finance PLC, Target and certain affiliates of Target.



     “German Borrower” means Gardner Denver Holdings GmbH & Co KG, a company organized under the
laws of Germany.



     “Hedging Obligations” of a Person means any and all obligations of such Person, whether
absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and substitutions therefor), under
(i) any and all agreements, devices or arrangements designed to protect at least one of the parties
thereto from the fluctuations of interest rates, exchange rates or forward rates applicable to such
party’s assets, liabilities or exchange transactions, including, but not limited to,
dollar-denominated or cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate currency or interest
rate options, puts and warrants, and (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any of the foregoing.



     “HMRC” means the United Kingdom H.M. Revenue & Customs.



     “Holders of Secured Obligations” is defined in the definition of “Pledge Agreement” set forth
in this Article I.



     “Home Country” is defined in Section 5.19(a) hereof.



     “Indebtedness” of a Person means, without duplication, such Person’s (i) obligations for
borrowed money, (ii) obligations representing the deferred purchase price of Property or services
(other than accounts payable arising in the ordinary course of such Person’s business payable on
terms customary in the trade), (iii) obligations, whether or not assumed, secured by Liens or
payable out of the proceeds or production from property now or hereafter owned or acquired by such
Person, (iv) obligations which are evidenced by notes, acceptances, or other instruments, (v)
Capitalized Lease Obligations, (vi) Hedging Obligations, (vii) Contingent Obligations and (viii)
Off Balance Sheet Liabilities, (ix) Receivables Facility Attributed Indebtedness and
(x) Disqualified Stock.



     “Intellectual Property” means (i) any and all intangible personal property consisting of
intellectual property, whether or not registered with any governmental entity, including, without
limitation, franchises, licenses, patents, technology and know-how, copyrights, trademarks, trade
secrets, service marks, logos and trade names and (ii) any and all contract rights (including,
without limitation, applications for governmental registrations, license agreements, trust
agreements and assignment agreements) creating, evidencing or conveying an interest or right in or
to any of the intellectual property described in the preceding clause (i).



     “Investment” of a Person means any loan, advance (other than commission, travel and similar
advances to officers and employees made in the ordinary course of business), extension of credit,
deposit account (in the nature of, or similar to, a bank account) or contribution of capital by
such Person to any



14









 







other Person or any investment in, or purchase or other acquisition of, the stock, partnership
interests, notes, debentures or other securities of any other Person made by such Person.



     “JPMorgan” means JPMorgan Chase Bank, N.A., in its individual capacity, and its successors.



     “LC Draft” means a draft, or other form of demand, drawn or made on a LC Issuer pursuant to a
Facility LC.



     “LC Issuer” means (i) JPMorgan or any of its Lending Installations or Affiliates in its
capacity as LC Issuer hereunder with respect to each Facility LC issued by JPMorgan or such Lending
Installation or Affiliate and (ii) any Revolving Loan Lender (other than JPMorgan or any Lending
Installation or Affiliate thereof) reasonably acceptable to the Agent, in such Revolving Loan
Lender’s capacity as LC Issuer hereunder with respect to any and all Facility LCs issued by such
Revolving Loan Lender in its sole discretion upon the applicable Borrower’s request. All
references contained in this Agreement and the other Credit Documents to the “LC Issuer” shall be
deemed to apply equally to each of the institutions referred to in clauses (i) and
(ii) of this definition in their respective capacities as LC Issuer of any and all Facility
LCs issued by each such institution.



     “LC Obligations” means, at any time, the sum, without duplication, of (i) the aggregate amount
then available for drawing under all Facility LCs outstanding at such time plus (ii) the
face amount of all LC Drafts corresponding to the Facility LCs, which drafts have been accepted by
the applicable LC Issuer plus (iii) the aggregate unpaid amount at such time of all
Reimbursement Obligations in respect of previous drawings made under Facility LCs.



     “LC Payment Date” is defined in Section 2.23(e) hereof.



     “Lender Increase Notice” is defined in Section 2.27(a) hereof.



     “Lenders” means the lending institutions listed on the signature pages of this Agreement and
their respective successors and permitted assigns.



     “Lending Installation” means, with respect to a Lender, LC Issuer or the Agent, any office,
branch, subsidiary or affiliate of such Lender, the LC Issuer or the Agent.



     “Letter of Credit” of a Person means a letter of credit or similar instrument which is issued
upon the application of such Person or upon which such Person is an account party or for which such
Person is in any way liable.



     “Leverage Ratio” means, as of the last day of any fiscal quarter of the Parent Borrower, the
ratio of (i) Consolidated Total Debt to (ii) Consolidated Adjusted EBITDA. The Leverage Ratio
shall be calculated based upon (a) for Consolidated Total Debt, Consolidated Total Debt as of the
last day of each such fiscal quarter, and (b) for Consolidated Adjusted EBITDA, the actual amount
for the period of four consecutive fiscal quarters of the Parent Borrower ending on such day.



     “Lien” means any lien (statutory or other), mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without limitation, the
interest of a vendor or lessor under any conditional sale, Capitalized Lease or other title
retention agreement).



15









 





     “Loan” means, with respect to a Lender, such Lender’s portion of any Advance made pursuant to
Section 2.1, and in the case of the Swing Line Lender, any Swing Line Loan made pursuant to
Section 2.2 hereof, and collectively all Term Loans, Revolving Loans, Swing Line Loans and
any incremental term loans made pursuant to Section 2.27, whether made or continued as or
converted to Floating Rate Loans, Eurocurrency Loans or otherwise.



     “Mandatory Cost” is described in Schedule 1(b) hereto.



     “Material Adverse Effect” means a material adverse effect on (a) the business, Property,
financial condition or results of operations of the Parent Borrower and its Subsidiaries taken as a
whole, (b) the ability of any Borrower or any Subsidiary to perform its respective obligations
under the Credit Documents to which it is a party or (c) the validity or enforceability of any of
the Credit Documents or any material rights or remedies of the Agent, the Swing Line Lender, the LC
Issuer or the Lenders thereunder.



     “Material Domestic Subsidiary(ies)” means each Domestic Subsidiary of the Parent Borrower
(other than any SPV and any Domestic Subsidiary owned by a Foreign Subsidiary), the total assets of
which exceed, at any time, ten percent (10.0%) of the consolidated total assets of the Parent
Borrower and its consolidated Subsidiaries (other than SPVs).



     “Material Foreign Subsidiary(ies)” means (i) each Non-U.S. Subsidiary Borrower and (ii) each
other Foreign Subsidiary of the Parent Borrower (other than any SPV), the total assets of which
exceed, at any time, ten percent (10.0%) of the consolidated total assets of the Parent Borrower
and its consolidated Subsidiaries (other than SPVs); provided, however, in the event that one of
more of such Foreign Subsidiaries are owned through another Foreign Subsidiary, then the Agent
shall notify the Parent Borrower whether the “Material Foreign Subsidiary” shall be the holding
company Foreign Subsidiary or such holding company’s Foreign Subsidiary or Subsidiaries, it being
the intention of the parties that the Agent and the Lenders shall be provided with the maximum
collateral protection without resulting in any Deemed Dividend Problem.



     “Material Indebtedness” means any Indebtedness, or group of different Indebtedness, in an
aggregate principal amount of at least $30,000,000.



     “Maturity Date” means the fifth anniversary of the Revolving Loan Funding Date.



     “Maximum Foreign Currency Amount” means, at any time, the Equivalent Amount of $225,000,000
minus the aggregate outstanding principal amount of Credit Extensions under the Revolving
Loan Facility in an Agreed Currency other than Dollars at such time.



     “Maximum Non-U.S. Subsidiary Borrower Amount” means the Equivalent Amount of $200,000,000.



     “Multiemployer Plan” means a Plan maintained pursuant to a collective bargaining agreement or
any other arrangement to which the Parent Borrower or any member of the Controlled Group is a party
to which more than one employer is obligated to make contributions.



     “Net Cash Proceeds” means, with respect to the Parent Borrower or any Subsidiary, (a) cash
(freely convertible into Dollars) received by such Person or any Subsidiary of such Person from any
Asset Sale (including cash received as consideration for the assumption or incurrence of
liabilities incurred in



16









 







connection with or in anticipation of such Asset Sale) or any Financing, after (i) provision
for all income or other taxes measured by or resulting from such sale of Property, (ii) payment of
all reasonable brokerage commissions and other fees and expenses related to such Asset Sale or
Financing, and (iii) all amounts used to repay Indebtedness secured by a Lien on any asset disposed
of in such Asset Sale which is or may be required (by the express terms of the instrument governing
such Indebtedness) to be repaid in connection with such Asset Sale (including payments made to
obtain or avoid the need for the consent of any holder of such Indebtedness) or Financing.



     “New Subsidiary” is defined in Section 6.16 hereof.



     “Non Pro Rata Loan” is defined in Section 8.2 hereof.



     “Non-U.S. Subsidiary Borrower” means (i) the German Borrower, (ii) the UK Borrower and (iii)
upon satisfaction of the requirements set forth in Section 2.19, any other First-Tier
Foreign Subsidiary of the Parent Borrower, whether now existing or hereafter formed, which shall
have delivered to the Agent an Assumption Letter in accordance with Section 2.19 and such
other documents, instruments and agreements as may be required pursuant to the terms of this
Agreement (including Section 4.2), together with its successors and permitted assigns.



     “Non-U.S. Subsidiary Borrower Credit Documents” means this Agreement or, as the case may be,
the Assumption Letter pursuant to which a Non-U.S. Subsidiary Borrower becomes a party to this
Agreement, any Pledge Agreements executed by any Non-U.S. Subsidiary Borrower and any and all
Facility LC Application Agreements executed by any Non-U.S. Subsidiary Borrower.



     “Notice of Assignment” is defined in Section 12.3.2 hereof.



     “Obligations” means all unpaid principal of and accrued and unpaid interest on the Loans, all
LC Obligations, all accrued and unpaid fees and all expenses, reimbursements, indemnities and other
obligations of each Borrower, respectively, to the Lenders or to any Lender (including the Swing
Line Lender), the LC Issuer, the Agent or any indemnified party hereunder arising under the Credit
Documents (whether or not allowed as a claim in any insolvency proceeding of any Borrower),
including any Hedging Obligations of the Parent Borrower or its Subsidiaries owing to any Lender or
Affiliate of a Lender in its separate capacity as the hedge counterparty or provider thereunder.



     “Obligor Subsidiary” means (i) a Subsidiary which is a party to a Subsidiary Guaranty or (ii)
a Material Domestic Subsidiary or Material Foreign Subsidiary in connection with which a Pledge
Agreement has been executed.



     “Off Balance Sheet Liabilities” of a Person means (a) any Receivables Facility Attributed
Indebtedness, (b) any repurchase obligation or liability of such Person or any of its Subsidiaries
with respect to accounts or notes receivable sold by such Person or any of its Subsidiaries,
including pursuant to any Receivables Purchase Facility, (c) any liability under any sale and
leaseback transactions which do not create a liability on the consolidated balance sheet of such
Person prepared in accordance with the Agreement Accounting Principles, (d) any liability under any
financing lease or so-called “synthetic” lease transaction, or (e) any obligations arising with
respect to any other transaction which is the functional equivalent of or takes the place of
borrowing but which does not constitute a liability on the consolidated balance sheets of such
Person and its Subsidiaries, prepared in accordance with Agreement Accounting Principles.



17









 





     “Originators” means the Parent Borrower and/or any of its Subsidiaries in their respective
capacities as parties to any Receivables Purchase Documents, as sellers or transferors of any
Receivables and Related Security in connection with a Permitted Receivables Transfer.



     “Outstanding Credit Exposure” means, as to any Lender at any time, the sum of (i) the
aggregate principal amount of its Loans outstanding at such time plus (ii) its Outstanding LC
Exposure at such time.



     “Outstanding LC Exposure” means, as to any Lender at any time, an amount equal to its
Revolving Loan Percentage of the LC Obligations at such time.



     “Parent Borrower” means Gardner Denver, Inc., a Delaware corporation, and its successors and
permitted assigns.



     “Parent Borrower Credit Documents” means this Agreement, the Parent Guaranty, any Pledge
Agreements executed by the Parent Borrower and any and all Facility LC Application Agreements
executed by the Parent Borrower.



     “Parent Guaranty” means a Guaranty, substantially in the form of Exhibit B hereto,
duly executed and delivered by the Parent Borrower to and in favor of the Agent, the LC Issuer, the
Lenders and the other Holders of Secured Obligations, as it may from time to time be amended,
supplemented or otherwise modified.



     “Participants” is defined in Section 12.2.1 hereof.



     “Payment Date” means the last Business Day of each March, June, September and December,
commencing on the first calendar quarter-end occurring after the Revolving Loan Funding Date.



     “PBGC” means the Pension Benefit Guaranty Corporation, or any successor thereto.



     “Percentage” means, with respect to any Lender, (i) at any time prior to the Term Loan Funding
Date, the percentage obtained by dividing (A) such Lender’s Commitments at such time (in each case,
as adjusted from time to time in accordance with the provisions of this Agreement) by (B) the sum
of the Aggregate Term Loan Commitment and the Aggregate Revolving Loan Commitment at such time and
(ii) at any time after the Term Loan Funding Date, the percentage obtained by dividing (A) the sum
of such Lender’s Term Loans and Revolving Loan Commitment at such time (in each case, as adjusted
from time to time in accordance with the provisions of this Agreement) by (B) the sum of the
aggregate amount of all of the Term Loans and the Aggregate Revolving Loan Commitment at such time;
provided, however, if all of the Commitments are terminated pursuant to the terms
of this Agreement, then “Percentage” means the percentage obtained by dividing (i) the sum of (a)
such Lender’s Term Loans and the Dollar Amount of such Lender’s Revolving Loans, plus (b)
such Lender’s share of the obligation to purchase participations in Swing Line Loans, plus
(c) such Lender’s share of the obligation to purchase participations in Facility LCs by (ii) the
sum of (a) the aggregate amount of all Term Loans and the Dollar Amount of Revolving Loans
plus (b) the aggregate amount of all Swing Line Loans, plus (c) the aggregate
outstanding Dollar Amount of all Facility LCs.



     “Permitted Receivables Transfer” means (i) a sale or other transfer by an Originator to a SPV
of Receivables and Related Security for fair market value and without recourse (except for limited
recourse typical of such structured finance transactions), and/or (ii) a sale or other transfer by
a SPV to (a)



18









 







purchasers of or other investors in such Receivables and Related Security or (b) any other
Person (including a SPV) in a transaction in which purchasers or other investors purchase or are
otherwise transferred such Receivables and Related Security, in each case pursuant to and in
accordance with the terms of the Receivables Purchase Documents.



     “Person” means any natural person, corporation, firm, joint venture, partnership, limited
liability company, association, enterprise, trust or other entity or organization, or any
government or political subdivision or any agency, department or instrumentality thereof.



     “Plan” means an employee pension benefit plan which is covered by Title IV of ERISA or subject
to the minimum funding standards under Section 412 of the Code as to which the Parent Borrower or
any member of the Controlled Group may have any liability.



     “Pledge Agreement” means a Pledge Agreement on terms and conditions reasonably acceptable to
the Agent duly executed and delivered by the Parent Borrower and/or any of its Subsidiaries to and
in favor of the Agent, the Swing Line Lender, the LC Issuer and the Lenders and their applicable
Affiliates (collectively, the “Holders of Secured Obligations”), as it may from time to time be
amended, supplemented or otherwise modified with respect to (i) one hundred percent (100%) of the
outstanding capital stock and other equity interests of each of the Parent Borrower’s Material
Domestic Subsidiaries and (ii) sixty-five percent (65%) of the outstanding capital stock and other
equity interests of each of the Parent Borrower’s Material Foreign Subsidiaries including, but not
limited to, after it has become a party hereto, each Non-U.S. Subsidiary Borrower.



     “Prepayment Notice” is defined in Section 2.4(b) hereof.



     “Prime Rate” means a rate per annum equal to the prime rate of interest announced by the Agent
or its parent from time to time (which is not necessarily the lowest rate of interest charged to
any customer), changing when and as said prime rate changes.



     “Property” of a Person means any and all property, whether real, personal, tangible,
intangible, or mixed, of such Person, or other assets owned, leased or operated by such Person,
including, without limitation, Intellectual Property.



     “Proposed New Lender” is defined in Section 2.27(a) hereof.



     “Purchasers” is defined in Section 12.3.1 hereof.



     “Receivable(s)” means and includes all of the applicable Originator’s or SPV’s presently
existing and hereafter arising or acquired accounts, accounts receivable, and all present and
future rights of such Originator or SPV, as applicable, to payment for goods sold or leased or for
services rendered (except those evidenced by instruments or chattel paper), whether or not they
have been earned by performance, and all rights in any merchandise or goods which any of the same
may represent, and all rights, title, security and guaranties with respect to each of the
foregoing, including, without limitation, any right of stoppage in transit.



     “Receivables and Related Security” means the Receivables and the related security and
collections with respect thereto which are sold or transferred by any Originator or SPV in
connection with any Permitted Receivables Transfer.



19









 





     “Receivables Facility Attributed Indebtedness” means the amount of obligations outstanding
under a Receivables Purchase Facility on any date of determination that would be characterized as
principal if such facility were structured as a secured lending transaction rather than as a
purchase.



     “Receivables Facility Financing Cost” means such portion of the cash fees, service charges,
and other costs, as well as all collections or other amounts retained by purchasers of Receivables
pursuant to a Receivables Purchase Facility, which are in excess of amounts paid to the Parent
Borrower and its consolidated Subsidiaries under any Receivables Purchase Facility for the purchase
of Receivables pursuant to such facility and are the equivalent of the interest component of the
financing if the transaction were characterized as an on-balance sheet transaction.



     “Receivables Purchase Documents” means any series of receivables purchase or sale agreements
generally consistent with terms contained in comparable structured finance transactions pursuant to
which an Originator or Originators sell or transfer to SPVs all of their respective right, title
and interest in and to certain Receivables and Related Security for further sale or transfer to
other purchasers of or investors in such assets (and the other documents, instruments and
agreements executed in connection therewith), as any such agreements may be amended, restated,
supplemented or otherwise modified from time to time, or any replacement or substitution therefor.



     “Receivables Purchase Facility” means the securitization facility made available to the Parent
Borrower, pursuant to which the Receivables and Related Security of the Originators are transferred
to one or more SPVs, and thereafter to certain investors, pursuant to the terms and conditions of
the Receivables Purchase Documents.



     “Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System as
from time to time in effect and any successor thereto or other regulation or official
interpretation of said Board of Governors relating to reserve requirements applicable to member
banks of the Federal Reserve System.



     “Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System as
from time to time in effect and any successor or other regulation or official interpretation of
said Board of Governors relating to the extension of credit by banks for the purpose of purchasing
or carrying margin stocks applicable to member banks of the Federal Reserve System.



     “Reimbursement Obligations” means, at any time, the aggregate of all obligations of each
Borrower then outstanding under Section 2.23 to reimburse any LC Issuer for amounts paid by
any such LC Issuer in respect of any one or more drawings under Facility LCs.



     “Relevant Prepayment Percentage” means (a) so long as the Leverage Ratio is greater than 3.5
to 1.0, (i) 100% in the case of prepayments required in connection with an Asset Sale (subject to a
270-day reinvestment period), (ii) 50% in the case of prepayments required in connection with a
Financing constituting an issuance or sale of any equity interests (including, without limitation,
common stock, preferred stock, warrants and any other equity interests) and (iii) 75% in the case
of prepayments required in connection with a Financing constituting an issuance or sale of any
Indebtedness and (b) so long as the Leverage Ratio is equal to or less than 3.5 to 1.0, (i) 50% in
the case of prepayments required in connection with an Asset Sale (subject to a 270-day
reinvestment period in accordance with Section 2.4(c)(ii)) and (ii) 0% in the case of
prepayments required in connection with a Financing.



20









 





     “Rentals” of a Person means the aggregate fixed amounts payable by such Person under any lease
of Property having an original term (including any required renewals or any renewals at the option
of the lessor or lessee) of one year or more (but does not include any amounts payable under
Capitalized Leases of such Person).



     “Reportable Event” means a reportable event as defined in Section 4043 of ERISA and the
regulations issued under such section, with respect to a Plan, excluding, however, such events as
to which the PBGC has by regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event, provided, however, that a
failure to meet the minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the notice requirement
in accordance with either Section 4043(a) of ERISA or Section 412(d) of the Code.



     “Required Lenders” means, as of the date of determination thereof, Lenders having, in the
aggregate, Percentages of at least 51%; provided, however, that, if any of the
Lenders shall have failed to fund its Percentage of (i) any Loan requested by any Borrower, (ii)
any Revolving Loans required to be made in connection with reimbursement for any LC Obligations, or
(iii) any participation in any Swing Line Loan as requested by the Agent, which such Lenders are
obligated to fund under the terms of this Agreement and any such failure has not been cured, then
for so long as such failure continues, “Required Lenders” means Lenders (excluding all Lenders
whose failure to fund their respective Percentages of such Loans or to purchase participations have
not been so cured) whose Percentages equal at least 51% of the aggregate Percentages of such
Lenders; provided, further, however, that, if the Commitments have been
terminated pursuant to the terms of this Agreement, “Required Lenders” means Lenders (without
regard to such Lenders’ performance of their respective obligations hereunder) in the aggregate
holding at least 51% of the Aggregate Outstanding Credit Exposure.



     “Required Revolving Lenders” means, as of the date of determination thereof, Revolving Lenders
having, in the aggregate, Revolving Loan Percentages of at least 51%; provided,
however, that, if any of the Revolving Loan Lenders shall have failed to fund its Revolving
Loan Percentage of (i) any Revolving Loan requested by any Borrower, (ii) any Revolving Loans
required to be made in connection with reimbursement for any LC Obligations, or (iii) any
participation in any Swing Line Loan as requested by the Agent, which such Lenders are obligated to
fund under the terms of this Agreement and any such failure has not been cured, then for so long as
such failure continues, “Required Revolving Lenders” means Revolving Loan Lenders (excluding all
Revolving Loan Lenders whose failure to fund their respective Revolving Loan Percentages of such
Revolving Loans or to purchase participations have not been so cured) whose Revolving Loan
Percentages equal at least 51%, such Revolving Loan Percentages being calculated without giving
effect to the Commitments of and Obligations to such excluded Revolving Loan Lenders.



     “Reserve Requirement” means, with respect to and during a Eurocurrency Interest Period, the
maximum aggregate reserve requirements imposed on Eurocurrency liabilities (including all basic,
supplemental, marginal and other reserves), including without limitation Regulation D. For
purposes of this definition, all Eurocurrency Loans shall be deemed to be “Eurocurrency
liabilities” as defined in Regulation D.



     “Revolving Credit Availability” means, at any particular time, the amount by which (i) the
Aggregate Revolving Loan Commitment at such time exceeds (ii) the Dollar Amount of the Revolving
Credit Obligations outstanding at such time.



21









 





     “Revolving Credit Obligations” means, at any particular time, the sum of (i) the Dollar Amount
of the Revolving Loans outstanding at such time, plus (ii) the amount of the Swing Line
Loans outstanding at such time, plus (iii) the Dollar Amount of LC Obligations outstanding
at such time.



     “Revolving Loan” is defined in Section 2.1(a) hereof.



     “Revolving Loan Commitment” means, for each Revolving Loan Lender, the obligation of such
Revolving Loan Lender to make Revolving Loans and to purchase participations in Facility LCs and to
participate in Swing Line Loans in an amount not exceeding the amount set forth opposite its name
on Schedule 1 hereto under the heading “Revolving Loan Commitment” or in the Assignment
Agreement by which it became a Revolving Loan Lender, as such amount may be modified from time to
time pursuant to the terms of this Agreement, or to give effect to any applicable Assignment
Agreement.



     “Revolving Loan Facility” means the portion of the credit facility evidenced by this Agreement
consisting of the several Revolving Loans, Swing Line Loans and Facility LCs.



     “Revolving Loan Funding Date” means the date on which the conditions precedent set forth in
Section 4.1A shall have been satisfied, which date shall be no later than October 31, 2008.



     “Revolving Loan Lender” means any Lender with a Revolving Loan Commitment.



     “Revolving Loan Percentage” means, with respect to any Revolving Loan Lender, the percentage
obtained by dividing (A) the amount of such Revolving Loan Lender’s Revolving Loan Commitment (as
adjusted from time to time in accordance with the provisions of this Agreement) by (B) the
Aggregate Revolving Loan Commitment at such time; provided, however, if all of the
Commitments are terminated pursuant to the terms of this Agreement, then “Revolving Loan
Percentage” means the percentage obtained by dividing (i) the sum of (a) the Dollar Amount of such
Revolving Loan Lender’s Revolving Loans, plus (b) such Revolving Loan Lender’s share of the
obligation to purchase participations in Swing Line Loans, plus (c) such Revolving Loan
Lender’s share of the obligation to purchase participations in Facility LCs by (ii) the sum of (a)
the aggregate Dollar Amount of all Revolving Loans, plus (b) the aggregate amount of all
Swing Line Loans, plus (c) the aggregate outstanding Dollar Amount of all Letters of
Credit.



     “Risk-Based Capital Guidelines” is defined in Section 3.2 hereof.



     “Section” means a numbered section of this Agreement, unless another document is specifically
referenced.



     “Selling Lender” is defined in Section 2.27(b) hereof.



     “Senior Subordinated Notes” means the Parent Borrower’s 8% Senior Subordinated Notes due 2013
and issued in May 2005 in an aggregate principal amount of $125,000,000, as such amount is reduced
and repaid from time to time.



     “Single Employer Plan” means a Plan maintained by the Parent Borrower or any member of the
Controlled Group for employees of the Parent Borrower or any member of the Controlled Group.



     “SPV” means any special purpose entity established for the purpose of purchasing Receivables
in connection with a receivables securitization transaction permitted under the terms of this
Agreement.



22









 





     “Subsidiary” of a Person means (i) any corporation more than 50% of the outstanding securities
having ordinary voting power of which shall at the time be owned or controlled, directly or
indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more
of its Subsidiaries, or (ii) any partnership, limited liability company, association, joint venture
or similar business organization more than 50% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled. Unless otherwise expressly provided,
all references herein to a “Subsidiary” shall mean a Subsidiary of the Parent Borrower.



     “Subsidiary Guaranty” means a Guaranty, substantially in the form of Exhibit C hereto,
duly executed and delivered by each Subsidiary of the Parent Borrower (to the extent required by
the terms of this Agreement) to and in favor of the Agent, the LC Issuer, the Lenders and the other
Holders of Secured Obligations, as it may from time to time be amended, supplemented or otherwise
modified.



     “Substantial Portion” means, with respect to the Property of any Person and its Subsidiaries,
Property which (i) represents more than 10% of the consolidated assets of such Person and its
Subsidiaries as would be shown in the consolidated financial statements of such Person and its
Subsidiaries as at the beginning of the twelve-month period ending with the month in which such
determination is made, or (ii) is responsible for more than 10% of the consolidated net sales or of
the consolidated net income of such Person and its Subsidiaries as reflected in the financial
statements referred to in clause (i) above.



     “Swing Line Commitment” means the obligation of the Swing Line Lender to make Swing Line Loans
up to a maximum principal amount of $25,000,000 at any one time outstanding.



     “Swing Line Lender” means JPMorgan.



     “Swing Line Loan” means a Loan made available to the Parent Borrower by the Swing Line Lender
pursuant to Section 2.2(a) hereof.



     “Target” means CompAir Holdings Ltd., a company organized under the laws of England and Wales.



     “Tax Restructuring” means the transactions outlined on Schedule 1(c) hereof, including
all interim non-material steps necessary to achieve each such step and all non-material deviations
from such steps so long as (i) such transactions are consummated on terms reasonably satisfactory
to the Agent and (ii) the Parent Borrower delivers such Credit Documents, and within such time
periods, as are reasonably requested by the Agent in order to comply with this Agreement. For
purposes of this definition, a “non-material” step or deviation shall mean any step or deviation,
as reasonably determined by the Agent and the Parent Borrower, from the steps outlined in
Schedule 1(c) hereto, that does not reduce the amount of security provided to the Lenders
under the Credit Documents.



     “Term Loan” is defined in Section 2.3(a) hereof.



     “Term Loan Commitment” means, for each Lender, the obligation of such Lender to make its Term
Loans pursuant to the terms and conditions of this Agreement, and which shall not exceed Term Loan
Dollar Tranche Commitment and Term Loan Euro Tranche Commitment of such Lender.



     “Term Loan Dollar Tranche Commitment” means, for each Lender, the obligation of such Lender to
make its Term Loan in Dollars pursuant to the terms and conditions of this Agreement, and



23









 







which shall not exceed the principal amount set forth opposite its name on Schedule I
hereto under the heading “Term Loan Dollar Tranche Commitment,” as such amount may be modified from
time to time pursuant to the terms hereof.



     “Term Loan Euro Tranche Commitment” means, for each Lender, the obligation of such Lender to
make its Term Loan in euro pursuant to the terms and conditions of this Agreement, and which shall
not exceed the principal amount set forth opposite its name on Schedule I hereto under the
heading “Term Loan Euro Tranche Commitment,” as such amount may be modified from time to time
pursuant to the terms hereof.



     “Term Loan Facility” means the portion of the credit facility evidenced by this Agreement
consisting of the Term Loans.



     “Term Loan Funding Date” means the date on which the Term Loans are funded, which date shall
be no later than January 6, 2009.



     “Term Loan Lender” means any Lender with a Term Loan Commitment.



     “Term Loan Percentage” means, with respect to any Term Loan Lender, (i) at any time prior to
the Term Loan Funding Date, the percentage obtained by dividing (A) such Term Loan Lender’s Term
Loan Commitment by (B) the Aggregate Term Loan Commitment, and (ii) at any time after the Term Loan
Funding Date, the percentage obtained by dividing (A) the sum of such Term Loan Lender’s Term Loans
at such time by (B) the sum of the aggregate amount of all of the Term Loans at such time.



     “Term Tranche” means the tranche of Term Loans under the Term Loan Dollar Tranche Commitments
and/or Term Loan Euro Tranche Commitments, as applicable.



     “Term Tranche Percentage” means, with respect to any Term Loan Lender under a Term Tranche,
(i) at any time prior to the Term Loan Funding Date, the percentage obtained by dividing (A) such
Term Loan Lender’s Term Loan Commitment under such Term Tranche by (B) the aggregate of the Term
Loan Commitments under such Term Tranche and (ii) at any time after the Term Loan Funding Date, the
percentage obtained by dividing (A) the sum of such Term Loan Lender’s Term Loans under such Term
Tranche at such time by (B) the sum of the aggregate amount of all of the Term Loans under such
Term Tranche at such time.



     “Ticking Fee” is defined in Section 2.7 hereof.



     “Ticking Fee Percentage” means (i) with respect to any Term Loan Lender, the percentage
obtained by dividing (A) such Term Loan Lender’s Term Loan Commitment by (B) the Aggregate Term
Loan Commitment and (ii) with respect to any Revolving Loan Lender, the percentage obtained by
dividing (A) such Revolving Loan Lender’s Revolving Loan Commitment by (B) the Aggregate Revolving
Loan Commitment.



     “Transferee” is defined in Section 12.4 hereof.



     “Type” means, with respect to any Advance or Loan, its nature as a Floating Rate Advance or
Floating Rate Loan, as applicable, or a Eurocurrency Advance or Eurocurrency Loan.



24









 





     “UK Borrower” means GD First (UK) Limited, a company organized under the laws of England and
Wales.



     “Unfunded Liabilities” means the amount (if any) by which the present value of all vested
nonforfeitable benefits under all Single Employer Plans exceeds the fair market value of all such
Plan assets allocable to such benefits, all determined as of the then most recent valuation date
for such Plans, but only to the extent that such excess represents a current liability of the
Parent Borrower or a member of the Controlled Group to the PBGC or such Plan under Title IV of
ERISA.



     “Unmatured Default” means an event which but for the lapse of time or the giving of notice, or
both, would constitute a Default.



     “Wholly-Owned Subsidiary” of a Person means (i) any Subsidiary all of the outstanding voting
securities (except securities required as directors’ qualifying shares) of which shall at the time
be owned or controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of such
Person, or (ii) any partnership, association, joint venture or similar business organization 100%
of the ownership interests having ordinary voting power of which shall at the time be so owned or
controlled.



     The foregoing definitions shall be equally applicable to both the singular and plural forms of
the defined terms.



ARTICLE II: THE CREDITS




     2.1. Revolving Loans. (a) Amount of Revolving Loans. Upon the satisfaction of the conditions precedent
contained in Section 4.1, Section 4.1A, Section 4.3, and, with respect to
any Non-U.S. Subsidiary Borrower (other than the German Borrower or the UK Borrower), Section
4.2, from and including the Revolving Loan Funding Date and prior to the Maturity Date (or, if
earlier, the date of termination in whole of the Aggregate Revolving Loan Commitment pursuant to
Section 2.7 hereof or the Commitments pursuant to Section 8.1 hereof), each
Revolving Loan Lender severally agrees, on the terms and conditions set forth in this Agreement, to
make revolving loans to the applicable Borrower from time to time in Agreed Currencies in an
aggregate Dollar Amount with respect to any such Loan not to exceed such Lender’s Revolving Loan
Percentage of Revolving Credit Availability, or, if less, such Lender’s Revolving Loan Commitment,
at such time (each individually, a “Revolving Loan” and, collectively, the “Revolving Loans”);
provided, however, that (i) at no time shall the Revolving Credit Obligations
exceed the Aggregate Revolving Loan Commitment, (ii) upon giving effect to each Revolving Loan, the
aggregate outstanding principal Dollar Amount of all Eurocurrency Advances and Facility LCs in
Agreed Currencies other than Dollars shall not exceed the Maximum Foreign Currency Amount and (iii)
upon giving effect to each Revolving Loan, the aggregate outstanding principal Dollar Amount of all
Revolving Loans and Facility LCs made to or issued for the account of the Non-U.S. Subsidiary
Borrowers shall not exceed the Maximum Non-U.S. Subsidiary Borrower Amount. Subject to the terms
of this Agreement, a Borrower may borrow, repay and reborrow Revolving Loans at any time prior to
the Maturity Date (or, if earlier, the date of termination in whole of the Aggregate Revolving Loan
Commitment pursuant to Section 2.7 hereof or the Commitments pursuant to Section
8.1 hereof). The Revolving Loan Commitments to lend hereunder shall expire on the Maturity
Date (or, if earlier, the date of termination in whole of the Aggregate Revolving Loan Commitment
pursuant to Section 2.7 hereof or the Commitments pursuant to Section 8.1 hereof). On the Maturity Date (or, if earlier, the date of termination in whole of the Aggregate Revolving Loan Commitment pursuant to Section 2.7 hereof or the




25












 




Commitments pursuant to Section 8.1 hereof), each
Borrower shall repay in full the outstanding principal balance of its Revolving Loans (it being
understood and agreed that each Non-U.S. Subsidiary Borrower shall be liable only to repay Loans
made to such Non-U.S. Subsidiary Borrower). Each Advance under this Section 2.1 shall
consist of Revolving Loans made by each Revolving Loan Lender ratably in proportion to such
Lender’s Revolving Loan Percentage.




          (b) Dollar Equivalent Calculations. For so long as the aggregate outstanding amount
of Revolving Loans, Swing Line Loans and the Aggregate Outstanding LC Exposure is less than 95% of
the Aggregate Revolving Loan Commitment, the Dollar Amount of each Eurocurrency Advance and
Facility LC in an Agreed Currency other than Dollars for all purposes under this Agreement (other
than Section 2.25) shall be the Dollar Amount thereof as of the date such Eurocurrency
Advance was made or Facility LC was issued. For so long as the aggregate outstanding amount of
Revolving Loans, Swing Line Loans and the Aggregate Outstanding LC Exposure is equal to or greater
than 95% of the Aggregate Revolving Loan Commitment, the Agent shall determine the Dollar Amount of
all Eurocurrency Advances and Facility LCs in Agreed Currencies other than Dollars as of the first
Business Day in each week, and the availability of Loans and Facility LCs under this Agreement
shall be determined on the basis of such Dollar Amount most recently determined.



          (c) Borrowing Notice. In connection with each Revolving Loan request, the applicable
Borrower shall deliver to the Agent a Borrowing Notice, signed by it, in accordance with the terms
of Section 2.9.



          (d) Making of Revolving Loans. Promptly after receipt of the Borrowing Notice under
Section 2.9 in respect of Revolving Loans, the Agent shall notify each Revolving Loan
Lender with a Revolving Loan Commitment greater than zero by telecopy, or other similar form of
transmission, of the requested Revolving Loan. Each Revolving Loan Lender with a Revolving Loan
Commitment greater than zero shall make available its Revolving Loan in accordance with the terms
of Section 2.9 and the Agent will promptly make the funds so received from the Revolving
Loan Lenders available to the applicable Borrower in accordance with Section 2.9. The
failure of any Revolving Loan Lender to deposit the amount described above with the Agent on the
applicable Borrowing Date shall not relieve any other Revolving Loan Lender of its obligations
hereunder to make its Revolving Loan on such Borrowing Date.



     2.2. Swing Line Loans. (a) Amount of Swing Line Loans. Upon the
satisfaction of the conditions precedent set forth in Section 4.1, 4.1A and
4.3, from and including the Revolving Loan Funding Date and prior to the Maturity Date (or,
if earlier, the date of termination in whole of the Aggregate Revolving Loan Commitment pursuant to
Section 2.7 hereof or the Commitments pursuant to Section 8.1 hereof), the Swing
Line Lender agrees, on the terms and conditions set forth in this Agreement, to make swing line
loans to the Parent Borrower (but not to any Non-U.S. Subsidiary Borrower) from time to time, in
Dollars, in an aggregate amount outstanding at any time not to exceed the Swing Line Commitment
(each, individually, a “Swing Line Loan” and collectively, the “Swing Line Loans”);
provided, however, that at no time shall the amount of Revolving Credit Obligations
exceed the Aggregate Revolving Loan Commitment; and provided, further, that at no
time shall the sum of (a) the outstanding amount of the Swing Line Loans made by the Swing Line
Lender and not risk participated to other Revolving Loan Lenders in accordance with Section
2.2(d) of this Agreement, plus (b) the outstanding amount of Revolving Loans made by
the
Swing Line Lender pursuant to Section 2.1 (after giving effect to any concurrent
repayment of Loans) plus (c) the Swing Line Lender’s Outstanding LC Exposure, exceed the
Swing Line Lender’s Revolving Commitment at such time. Subject to the terms of this Agreement, the
Parent Borrower may borrow, repay and reborrow Swing Line Loans at any time



26









 







prior to the Maturity
Date (or, if earlier, the date of termination in whole of the Aggregate Revolving Loan Commitment
pursuant to Section 2.7 hereof or the Commitments pursuant to Section 8.1 hereof).



     (b) Borrowing Notice; Applicable Interest Rate; Minimums. The Parent Borrower shall
deliver to the Agent and the Swing Line Lender a Borrowing Notice, signed by it, not later than
11:00 a.m. (Chicago time) on the Borrowing Date of each Swing Line Loan, specifying (i) the
applicable Credit Extension Date (which shall be a Business Day), and (ii) the aggregate amount of
the requested Swing Line Loan. The Swing Line Loans shall bear interest at such rate as shall have
been agreed to between the Parent Borrower and the Swing Line Lender or, if no such rate has been
agreed to, at the Floating Rate but, in any case, shall otherwise be subject to the terms
applicable to Floating Rate Loans hereunder. The Swing Line Loans shall be in an amount not less
than $250,000 and multiples of $100,000 in excess thereof.



     (c) Making of Swing Line Loans. Promptly after receipt of the Borrowing Notice under
Section 2.2(b) in respect of Swing Line Loans, the Agent shall notify each Revolving Loan
Lender by telex or telecopy, or other similar form of transmission, of the requested Swing Line
Loan. Not later than 2:00 p.m. (Chicago time) on the applicable Borrowing Date, the Swing Line
Lender shall make available its Swing Line Loan, in funds immediately available in Chicago to the
Agent at its address specified pursuant to Article XIV. The Agent will promptly make the
funds so received from the Swing Line Lender available to the Parent Borrower at the Agent’s
aforesaid address.



     (d) Repayment of Swing Line Loans. Each Swing Line Loan shall be paid in full by the
Parent Borrower on or before the fifth (5th) Business Day after the Borrowing Date for
such Swing Line Loan (it being understood and agreed that no Non-U.S. Subsidiary Borrower shall be
liable to repay any Swing Line Loans). The Parent Borrower may at any time repay or prepay,
without penalty or premium, all outstanding Swing Line Loans or, in a minimum amount of $100,000
(with increments of $100,000 in excess thereof), any portion of the outstanding Swing Line Loans,
upon notice to the Agent and the Swing Line Lender. In addition, the Agent (i) may at any time in
its sole discretion with respect to any outstanding Swing Line Loan, or (ii) shall on the fifth
(5th) Business Day after the Borrowing Date of any Swing Line Loan, require each
Revolving Loan Lender (including the Swing Line Lender in its capacity as a Revolving Loan Lender)
to make a Revolving Loan under Section 2.1 in the amount of such Revolving Loan Lender’s
Revolving Loan Percentage of such Swing Line Loan, for the purpose of repaying such Swing Line
Loan. Not later than 3:00 p.m. (Chicago time) on the date of any notice received pursuant to this
Section 2.2(d), each Revolving Loan Lender shall make available its required Revolving Loan
or Revolving Loans, in funds immediately available in Chicago to the Agent at its address specified
pursuant to Article XIV. Revolving Loans made pursuant to this Section 2.2(d)
shall be Floating Rate Loans. Unless a Revolving Loan Lender shall have notified the Swing Line
Lender, prior to its making any Swing Line Loan, that any applicable condition precedent set forth
in Section 4.1, 4.1A or 4.3 had not then been satisfied, such Revolving
Loan Lender’s obligation to make Revolving Loans pursuant to this Section 2.2(d) to repay
Swing Line Loans shall be unconditional, continuing, irrevocable and absolute and shall not be
affected by any circumstances, including, without limitation, (A) any set-off, counterclaim,
recoupment, defense or other right which such Revolving Loan Lender may have against the Agent, the
Swing Line Lender or any other Person, (B) the occurrence or continuance of a Default or Unmatured
Default, (C) any adverse change in the condition (financial or otherwise) of the Parent Borrower or
any of its Subsidiaries, or (D) any other circumstances, happening or event
whatsoever. In the event that any Revolving Loan Lender fails to make payment to the Agent of
any amount due under this Section 2.2(d), the Agent shall be entitled to receive, retain
and apply against such obligation the principal and interest otherwise payable to such Revolving
Loan Lender hereunder until the Agent receives such payment from such Revolving Loan Lender or such
obligation is otherwise fully



27









 







satisfied. In addition to the foregoing, if for any reason any
Revolving Loan Lender fails to make payment to the Agent of any amount due under this Section
2.2(d), such Revolving Loan Lender shall be deemed, at the option of the Agent, to have
unconditionally and irrevocably purchased from the Swing Line Lender, without recourse or warranty,
an undivided interest and participation in the applicable Swing Line Loan in the amount of such
Revolving Loan, and such interest and participation may be recovered from such Revolving Loan
Lender together with interest thereon at the Federal Funds Effective Rate for each day during the
period commencing on the date of demand and ending on the date such amount is received. On the
Maturity Date (or, if earlier, the date of termination in whole of the Aggregate Revolving Loan
Commitment pursuant to Section 2.7 hereof or the Commitments pursuant to Section
8.1 hereof), the Parent Borrower shall repay in full the outstanding principal balance of the
Swing Line Loans (it being understood and agreed that no Non-U.S. Subsidiary Borrower shall be
liable to repay any Swing Line Loans).



     2.3. Term Loans.



     (a) Generally. Subject to the terms and conditions set forth in this Agreement, each
Term Loan Lender on the Term Loan Funding Date severally agrees to make on the Term Loan Funding
Date term loans to the Parent Borrower in an aggregate amount equal to such Lender’s Term Loan
Commitment (each individually, a “Term Loan” and, collectively, the “Term Loans”). Each such Term
Loan by a Term Loan Lender shall be denominated in Dollars and euro in an amount equal to its Term
Loan Dollar Tranche Commitment and its Term Loan Euro Tranche Commitment (if any), respectively.
All Term Loans shall be made by the Term Loan Lenders on the Term Loan Funding Date simultaneously
and proportionately to their respective Term Loan Percentages and Term Tranche Percentages, it
being understood that no Term Loan Lender shall be responsible for any failure by any other Term
Loan Lender to perform its obligation to make any Term Loan hereunder nor shall the Term Loan
Commitment of any Term Loan Lender be increased or decreased as a result of any such failure.



     (b) Borrowing Notice. The Parent Borrower shall execute and deliver to the Agent a
Borrowing Notice no later than four (4) Business Days prior to the Term Loan Funding Date. Such
Borrowing Notice shall specify (i) the aggregate amount of the Term Loans being requested (which
shall be equal to the Aggregate Term Loan Commitment and consistent with the Term Loan Dollar
Tranche Commitments and the Term Loan Euro Tranche Commitments) and (ii) instructions for the
disbursement of proceeds of such Term Loans. Any Borrowing Notice given pursuant to this
Section 2.3(b) shall be irrevocable.



     (c) Making of Term Loans. Promptly after receipt of the Borrowing Notice under
Section 2.3(b) in respect of the Term Loans, the Agent shall notify each Term Loan Lender
by telecopy, or other similar form of transmission, of the proposed Advance. Each Term Loan Lender
shall deposit an amount equal to its Term Loan Percentage of the Term Loans with the Agent at its
Eurocurrency Payment office, in immediately available funds, on the Term Loan Funding Date, as
specified in the Borrowing Notice. Subject to the fulfillment of the conditions precedent set
forth in Sections 4.1 and 4.3, as applicable, the Agent shall make the proceeds of
such amounts received by it available to the Parent Borrower at the Agent’s Eurocurrency Payment
office on such date and shall disburse such proceeds in accordance with the Parent Borrower’s
disbursement instructions set forth in such Borrowing Notice. The failure of any
Term Loan Lender to deposit the amount described above with the Agent on such date shall not
relieve any other Term Loan Lender of its obligations hereunder to make its Term Loan on such date.



     (d) Repayment of the Term Loans.



28









 






	 	(i)	 	The Term Loans shall be repaid by the Parent Borrower in nineteen (19)
consecutive quarterly installments on the dates set forth below and one (1) final
installment on the Maturity Date (it being understood and agreed that no Non-U.S.
Subsidiary Borrower shall be liable to repay any Term Loans). Each payment shall be
due and payable on the last Business Day of the applicable calendar quarter and shall
be denominated in the same currency (Dollar or euro, as applicable) as the Term Tranche
in respect of which such payment is being effected. The first Term Loan installment
shall be due and payable on the last Business Day of the first calendar quarter-end
after the Term Loan Funding Date and such installments shall continue on the last
Business Day of each calendar quarter thereafter through and including the Maturity
Date. The Term Loans shall be permanently reduced by the amount of each installment on
the date payment thereof is made hereunder. The installments shall be in the aggregate
amounts set forth in the schedule below:





	 	 	 
	Calendar Quarter Ending After 

the Term Loan Funding Date:
	 	Installment Amount Due and Payable on the Last 

Business Day of such Calendar Quarter: 
	 
	 	 





	 	 	 	 	 	 	 	 	 
	 	 	Term Loans denominated in	 	Term Loans denominated in
	 	 	Dollars	 	euro
	First
	 	$	2,250,000	 	 	€	1,500,000	 
	Second
	 	$	2,250,000	 	 	€	1,500,000	 
	Third
	 	$	2,250,000	 	 	€	1,500,000	 
	Fourth
	 	$	2,250,000	 	 	€	1,500,000	 
	Fifth
	 	$	4,500,000	 	 	€	3,000,000	 
	Sixth
	 	$	4,500,000	 	 	€	3,000,000	 
	Seventh
	 	$	4,500,000	 	 	€	3,000,000	 
	Eighth
	 	$	4,500,000	 	 	€	3,000,000	 
	Ninth
	 	$	6,750,000	 	 	€	4,500,000	 
	Tenth
	 	$	6,750,000	 	 	€	4,500,000	 
	Eleventh
	 	$	6,750,000	 	 	€	4,500,000	 
	Twelfth
	 	$	6,750,000	 	 	€	4,500,000	 
	Thirteenth
	 	$	9,000,000	 	 	€	6,000,000	 
	Fourteenth
	 	$	9,000,000	 	 	€	6,000,000	 
	Fifteenth
	 	$	9,000,000	 	 	€	6,000,000	 
	Sixteenth
	 	$	9,000,000	 	 	€	6,000,000	 
	Seventeenth
	 	$	22,500,000	 	 	€	15,000,000	 
	Eighteenth
	 	$	22,500,000	 	 	€	15,000,000	 
	Nineteenth
	 	$	22,500,000	 	 	€	15,000,000	 
	Maturity Date
	 	Balance of Term Loans	 	Balance of Term Loans
	 
	 	Denominated in Dollars	 	Denominated in euro






     Notwithstanding the foregoing, in the event that the Term Loan Funding Date occurs after
December 31, 2008, the Agent (in consultation with the Parent Borrower) shall provide to the
parties hereto an updated amortization schedule in lieu of the foregoing schedule, which update
shall redistribute the installment amounts that would have been due and payable on the last
Business Day of the calendar quarter ending December 31, 2008 had the Term Loan Funding Date
occurred prior to such date. Such



29









 







updated amortization schedule shall be conclusive and binding on
all of the parties hereto in lieu of the foregoing schedule.



     No installment of any Term Loan shall be reborrowed once repaid.



     (e) Voluntary Prepayments. In addition to the scheduled payments on the Term Loans,
the Parent Borrower may make the voluntary prepayments described in Section 2.4(b), with
such prepayments applied ratably to reduce all outstanding installments under the Term Loans.



     2.4. Repayments and Prepayments of Advances.



     (a) Repayment at Maturity. Any outstanding Advances and Loans (other than the Term
Loans) and all other unpaid Obligations shall be paid in full by the applicable Borrower on the
Maturity Date (or, if earlier, the date of termination in whole of the Aggregate Revolving Loan
Commitment pursuant to Section 2.7 hereof or the Commitments pursuant to Section
8.1 hereof) (it being understood and agreed that each Non-U.S. Subsidiary Borrower shall be
obligated to repay only the Loans made to it and to pay only the other Obligations incurred by it).



     (b) Optional Prepayments. Subject to Section 3.4 and the requirements of this
Section 2.4(b), any Borrower may (a) following notice given to the Agent by such Borrower,
by not later than 10:00 a.m. (Chicago time) one Business Day prior to the date of the proposed
prepayment, such notice specifying the aggregate principal amount of and the proposed date of the
prepayment (the “Prepayment Notice”), and if such notice is given such Borrower shall, prepay in an
aggregate minimum amount of $3,000,000 the outstanding principal amounts of the Floating Rate Loans
comprising part of the same Advance in whole or ratably in part without penalty or premium and (b)
following notice given to the Agent by any Borrower by not later than 10:00 a.m. (Chicago time) on,
if the Advance to be prepaid is a Eurocurrency Advance, the third Business Day preceding the date
of the proposed prepayment, such notice specifying the Eurocurrency Advance to be prepaid and the
proposed date of the prepayment, and, if such notice is given, such Borrower shall, prepay in a
minimum amount of $3,000,000 and in multiples of $1,000,000 in excess thereof the outstanding
principal amounts of the Eurocurrency Loans comprising a Eurocurrency Advance without penalty or
premium, except as otherwise provided in Section 3.4, together with accrued interest to the
date of such prepayment on the principal amount prepaid.



     (c) Mandatory Prepayments.



     (i) Generally. If at any time, (a) the Dollar Amount of the Revolving Credit
Obligations exceeds 105% of the Aggregate Revolving Loan Commitment, (b) the Dollar Amount of all
Eurocurrency Loans (which are Revolving Loans) and Facility LCs in Agreed Currencies other than
Dollars exceeds 105% of the Maximum Foreign Currency Amount (utilizing the exchange rates
determined in accordance with Section 2.1), (c) the aggregate amount of the outstanding
Swing Line Loans exceeds 105% of the Swing Line Commitment or (d) the Dollar Amount of Revolving
Loans and Facility LCs made to or issued for the account of the Non-U.S. Subsidiary Borrowers
exceeds 105% of the Maximum Non-U.S. Subsidiary Borrower Amount, the applicable Borrower for the ratable benefit of the Revolving
Loan Lenders shall immediately prepay Revolving Loans (to be applied to such Loans as the
applicable Borrower shall direct at the time of such payment) in an aggregate amount such that
after giving effect thereto (w) the Dollar Amount of the Revolving Credit Obligations is less than
or equal to the Aggregate Revolving Loan Commitment, (x) the Dollar Amount of all Eurocurrency
Loans and Facility LCs in Agreed Currencies other than Dollars is less than or equal to the Maximum
Foreign Currency Amount, (y) the amount of outstanding Swing Line Loans is less than or equal to
the Swing Line Commitment and



30









 







(z) the Dollar Amount of Revolving Loans and Facility LCs made to or
issued for the account of the Non-U.S. Subsidiary Borrowers is less than or equal to the Maximum
Non-U.S. Subsidiary Borrower Amount (it being understood and agreed that each Non-U.S. Subsidiary
Borrower shall be liable only to repay Loans made to, and Obligations incurred by, such Non-U.S.
Subsidiary Borrower).



     (ii) Asset Sales. Upon the consummation of any Asset Sale by the Parent Borrower or
any Subsidiary, within ten (10) Business Days after the Parent Borrower’s or any of its
Subsidiaries’ receipt of any Net Cash Proceeds (or conversion to cash of non-cash proceeds (whether
principal or interest and including securities and release of escrow arrangements)) from any such
Asset Sale, the Parent Borrower shall make a mandatory prepayment of the Loans and cash
collateralize the Reimbursement Obligations, subject to the provisions governing the application of
payments set forth in Section 2.4(d), in an amount equal to the Relevant Prepayment
Percentage of such Net Cash Proceeds; provided that if the Parent Borrower shall deliver to
the Agent a certificate of an Authorized Officer to the effect that the Parent Borrower or its
relevant Subsidiaries intend to apply the Net Cash Proceeds from such event (or a portion thereof
specified in such certificate), within 270 days after receipt of such Net Cash Proceeds, to acquire
(or replace or rebuild) real property, equipment or other tangible assets (excluding inventory) to
be used in the business of the Parent Borrower and/or its Subsidiaries, and certifying that no
Unmatured Default has occurred and is continuing, then no prepayment shall be required pursuant to
this paragraph in respect of the Net Cash Proceeds specified in such certificate; provided
further that at the end of such 270 day period, a prepayment shall be required in an amount
equal to any such Net Cash Proceeds that have not been so applied.



     (iii) Financings. Upon the consummation of any Financing by the Parent Borrower or
any Subsidiary, within three (3) Business Days after the Parent Borrower’s or any of its
Subsidiaries’ receipt of any Net Cash Proceeds from any such Financing, the Parent Borrower shall
make a mandatory prepayment of the Loans and cash collateralize the Reimbursement Obligations,
subject to the provisions governing the application of payments set forth in Section
2.4(d), in an amount equal to the Relevant Prepayment Percentage of such Net Cash Proceeds.



     (d) Subject to the terms and conditions of this Agreement, any amount paid or prepaid before
the Maturity Date (or, if earlier, the date of termination in whole of the Aggregate Revolving Loan
Commitment pursuant to Section 2.7 hereof or the Commitments pursuant to Section
8.1 hereof) pursuant to Section 2.4(c)(i) with respect to Loans (other than the Term
Loans) may be borrowed, repaid and borrowed again prior to the Maturity Date (or, if earlier, the
date of termination in whole of the Aggregate Revolving Loan Commitment pursuant to Section
2.7 hereof or the Commitments pursuant to Section 8.1 hereof). Notwithstanding the
foregoing, (i) each mandatory prepayment and cash collateralization required by clauses
(ii) and (iii) of Section 2.4(c) (a “Designated Prepayment”) shall be applied
(i) first to repay the then remaining installments of the Term Loans and in the inverse
order of maturity, (ii) second, upon repayment in full of the Term Loans, to prepay the
Revolving Loans then outstanding and (iii) upon repayment in full of the Revolving Loans, to cash
collateralize the Reimbursement Obligations as contemplated by Section 2.23(m). Designated
Prepayments of Loans shall first be applied to Floating Rate Loans and to any Eurocurrency Loans
maturing on such date and then to subsequently maturing
Eurodollar Rate Loans in order of maturity. Designated Prepayments of Revolving Loans and
Reimbursement Obligations shall be accompanied by a permanent reduction and termination, on a
Dollar for Dollar basis, in the amount of the Aggregate Revolving Loan Commitment ratably among the
Revolving Loan Lenders.



31









 





     2.5. Ratable Loans. Each Advance hereunder shall consist of Loans made from the
several Lenders ratably in proportion to their respective Revolving Loan Percentages or Term Loan
Percentages (and Term Tranche Percentages), as applicable.



     2.6. Types of Advances. The Advances may be Floating Rate Advances or Eurocurrency
Advances, or a combination thereof, selected by the applicable Borrower in accordance with
Sections 2.8 and 2.9.



     2.7. Facility Fee; Ticking Fee; Reductions in Aggregate Revolving Loan Commitment.



          (a) The Parent Borrower agrees to pay to the Agent for the pro rata account of the Revolving
Loan Lenders according to their Percentages (except as set forth in Section 8.2), a
facility fee (the “Facility Fee”) accruing at the rate of the Applicable Facility Fee per annum
based on the Aggregate Revolving Loan Commitment (without regards to usage thereof), from the
Revolving Loan Funding Date to and including the Maturity Date, payable on each Payment Date after
the Revolving Loan Funding Date and on the Maturity Date (it being understood and agreed that no
Non-U.S. Subsidiary Borrower shall be liable to pay any Facility Fees).



          (b) The Parent Borrower agrees to pay to the Agent for the pro rata account of the Lenders
according to their Ticking Fee Percentages (except as set forth in Section 8.2), a ticking
fee (the “Ticking Fee”) accruing at a rate per annum equal to the Applicable Facility Fee based on
the Aggregate Revolving Loan Commitment and the Aggregate Term Loan Commitment, as applicable, from
the Closing Date to (but not including) the Revolving Loan Funding Date (in the case of the Ticking
Fee on the Aggregate Revolving Loan Commitment) and the Term Loan Funding Date (in the case of the
Ticking Fee on the Aggregate Term Loan Commitment), payable on the last Business Day of each
calendar quarter (to the extent occurring prior to the Revolving Loan Funding Date and the Term
Loan Funding Date, as applicable) and on the Revolving Loan Funding Date and the Term Loan Funding
Date, commencing on the first calendar quarter-end occurring after the Closing Date (it being
understood and agreed that no Non-U.S. Subsidiary Borrower shall be liable to pay any Ticking
Fees).



          (c) The Parent Borrower may permanently reduce the Aggregate Revolving Loan Commitment in
whole, or in part, ratably among the Revolving Loan Lenders in integral multiples of $5,000,000
upon at least three Business Days’ written notice to the Agent, which notice shall specify the
amount of any such reduction (the “Aggregate Revolving Loan Commitment Reduction Notice”);
provided, that the amount of the Aggregate Revolving Loan Commitment may not be reduced below
the Dollar Amount of the Aggregate Outstanding Credit Exposure not attributable to Term Loans. All
accrued Facility Fees shall be payable on the effective date of any termination of the Revolving
Loan Commitments of the Revolving Loan Lenders and the obligation of the Parent Borrower to pay
facility
fees with respect to any Revolving Loan Commitments shall terminate on the date of any
termination of the Revolving Loan Commitments.



     2.8. Minimum Amount of Each Advance; Maximum Interest Periods. Each Eurocurrency
Advance shall be in the minimum amount of $3,000,000 or the Approximate Equivalent Amount of any
Agreed Currency other than Dollars (and in multiples of $1,000,000 or the Approximate Equivalent
Amount of any Agreed Currency other than Dollars if in excess thereof), and each Floating Rate
Advance (other than an Advance to repay Swing Line Loans or Reimbursement Obligations) shall be in
the minimum amount of $3,000,000 (and a multiple of $1,000,000 if in excess thereof);
provided, that any Floating Rate Advance may be in the amount of the Revolving Credit
Availability. In addition, the



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Borrowers shall select Eurocurrency Interest Periods under
Sections 2.9 and 2.10 so that no more than ten (10) Eurocurrency Interest Periods
shall be outstanding at any one time.



     2.9. Method of Selecting New Advances. The applicable Borrower shall select the Type
of Advance and, in the case of each Eurocurrency Advance, the Eurocurrency Interest Period and
Agreed Currency applicable to each Advance from time to time. The applicable Borrower shall give
the Agent irrevocable notice (a “Borrowing Notice”) or, in the case of any Non-U.S. Subsidiary
Borrower, the Parent Borrower may give the Agent a Borrowing Notice on its behalf, by telephone or
telefax not later than 11:00 a.m. (Chicago time) (i) on the proposed Borrowing Date of each
Floating Rate Advance, (ii) three Business Days before the Borrowing Date for each Eurocurrency
Advance in Dollars and (iii) four Business Days before the Borrowing Date for each Eurocurrency
Advance in an Agreed Currency other than Dollars, specifying:




	 	(i)	 	the applicable Borrower;
	 
	 	(ii)	 	Borrowing Date, which shall be a Business Day, of such Advance,
	 
	 	(iii)	 	the aggregate amount of such Advance,
	 
	 	(iv)	 	the Type of Advance selected, and
	 
	 	(v)	 	in the case of each Eurocurrency Advance, the Agreed Currency and the
Eurocurrency Interest Period applicable thereto.




With respect to the Term Loans, the Parent Borrower may not select a Eurocurrency Interest Period
that ends after the Maturity Date. With respect to the Revolving Loans, the applicable Borrower
may not select a Eurocurrency Interest Period that ends after the Maturity Date. Not later than
(i) 1:00 p.m. (Chicago time) on each Borrowing Date with respect to Floating Rate Advances and
(ii) noon (Chicago time) on each Borrowing Date for Eurocurrency Advances, each Lender shall make
available its Loan or Loans, in immediately available funds in the Agreed Currency to the Agent at
its address specified pursuant to Article XIII, unless the Agent has notified the Lenders
that such Loan is to be made available to the applicable Borrower at the Agent’s Eurocurrency
Payment Office, in which case each Lender shall make available its Loan or Loans, in funds
immediately available to the Agent at its Eurocurrency Payment Office, not later than 1:00 p.m.
(local time in the city of the Agent’s Eurocurrency Payment
Office) in the Agreed Currency designated by the Agent. The Agent will make the funds so received
from the Lenders available to the applicable Borrower at the Agent’s aforesaid address.




     2.10. Conversion and Continuation of Outstanding Advances. Floating Rate Advances
shall continue as Floating Rate Advances unless and until such Floating Rate Advances are converted
into Eurocurrency Advances. Each Eurocurrency Advance shall continue as a Eurocurrency Advance of
such Type until the end of the then applicable Eurocurrency Interest Period therefor, at which time
such Eurocurrency Advance (other than Eurocurrency Advances in Agreed Currencies other than
Dollars) shall be automatically converted into a Floating Rate Advance unless the applicable
Borrower shall have given the Agent a Conversion/Continuation Notice (which, in the case of a
Non-U.S. Subsidiary Borrower, may be delivered by the Parent Borrower on its behalf), in accordance
with the terms of this Section 2.10 requesting that, at the end of such Eurocurrency
Interest Period, such Eurocurrency Advance continue as a Eurocurrency Advance for the same or
another Eurocurrency Interest Period. Unless a Conversion/Continuation Notice shall have timely
been given in accordance with the terms of this Section 2.10, Eurocurrency Advances in an
Agreed Currency other than Dollars shall automatically continue as



33









 







Eurocurrency Advances in the
same Agreed Currency with an Eurocurrency Interest Period of one (1) month. Subject to the terms
of Section 2.8, the applicable Borrower may elect from time to time to convert all or any
part of the Term Loans or the Revolving Loans from any Type into any other Type of Loan or Types of
Loans; provided that any conversion of any Eurocurrency Advance shall be made on, and only
on, the last day of the Eurocurrency Interest Period applicable thereto. The applicable Borrower
shall give the Agent irrevocable notice (a “Conversion/Continuation Notice”) or, in the case of a
Non-U.S. Subsidiary Borrower, the Parent Borrower may give the Agent a Conversion/Continuation
Notice on its behalf, of each conversion of a Floating Rate Advance into a Eurocurrency Advance or
continuation of a Eurocurrency Advance not later than 10:00 a.m. (Chicago time) at least (a) three
Business Days prior to the date of the requested conversion or continuation of a Eurocurrency
Advance in Dollars and (b) four Business Days prior to the date of the requested conversion or
continuation of a Eurocurrency Advance in an Agreed Currency other than Dollars, specifying in each
case:




	 	(i)	 	the requested date, which shall be a Business Day, of such conversion or
continuation;
	 
	 	(ii)	 	the aggregate amount and Type of the Advance which is to be converted or
continued; and
	 
	 	(iii)	 	the amount and Type(s) of Advance(s) into which such Advance is to be
converted or continued and, in the case of a conversion into or continuation of a
Eurocurrency Advance, the duration of the Eurocurrency Interest Period applicable
thereto.




Notwithstanding anything herein to the contrary, Eurocurrency Advances in an Agreed Currency may be
converted and/or continued as Eurocurrency Advances only in the same Agreed Currency. Promptly
after receipt of any Conversion/Continuation Notice, the Agent shall provide the Lenders with
notice thereof.




     2.11. Changes in Interest Rate, etc. Each Floating Rate Advance and Swing Line Loan
shall bear interest on the outstanding principal amount thereof, for each day from and including
the date such Advance or Swing Line Loan is made or, in the case of a Floating Rate Advance, is
converted from a Eurocurrency Advance into a Floating Rate Advance pursuant to Section 2.10
to but excluding the date it becomes due or, in the case of
a Floating Rate Advance, is converted into a Eurocurrency Advance pursuant to Section
2.10 hereof, at a rate per annum equal to the Floating Rate for such day or, in the case of the
Swing Line Loans, such other rate as may have been agreed to between the Parent Borrower and the
Swing Line Lender. Changes in the rate of interest on that portion of any Advance maintained as a
Floating Rate Advance and each Swing Line Loan bearing interest by reference to the Floating Rate
will take effect simultaneously with each change in the Alternate Base Rate and with each change in
the Applicable Margin. Each Eurocurrency Advance shall bear interest from and including the first
day of the Eurocurrency Interest Period applicable thereto to (but not including) the last day of
such Eurocurrency Interest Period at the Eurocurrency Rate determined as applicable to such
Eurocurrency Advance. Changes in the rate of interest on any Eurocurrency Advance will take effect
simultaneously with each change in the Applicable Margin. No Eurocurrency Interest Period with
respect to Revolving Loans may end after the Maturity Date (or, if earlier, the date of termination
in whole of the Aggregate Revolving Loan Commitment pursuant to Section 2.7 hereof or the
Commitments pursuant to Section 8.1 hereof).



     2.12. Rates Applicable After Default. Notwithstanding anything to the contrary
contained in Section 2.9 or 2.10, during the continuance of a Default or Unmatured
Default the Required Revolving Lenders may, at their option, by notice to the Parent Borrower,
declare that no Advance may be made as, converted into or continued as a Eurocurrency Advance.
During the continuance of any Default under



34









 







Section 7.2, the Required Lenders may, at their
option, by notice to the Parent Borrower, declare that (i) each Advance shall bear interest at a
rate per annum equal to the Floating Rate plus 2% per annum and (ii) each of the Applicable
Commercial Facility LC Fee, Applicable Facility Fee, Applicable Facility LC Fronting Fee and
Applicable Stand-by Facility LC Fee shall be increased by 2% above the percentage rate per annum
otherwise applicable thereto.



     2.13. Method of Payment. All payments of the Obligations hereunder shall be made,
without setoff, deduction, or counterclaim, to the Agent (i) at the Agent’s address specified
pursuant to Article XIII in immediately available funds with respect to Advances or other
Obligations denominated in Dollars and (ii) at the Agent’s Eurocurrency Payment Office in
immediately available funds with respect to any Advance or other Obligations denominated in an
Agreed Currency other than Dollars, or at any other Lending Installation of the Agent specified in
writing by the Agent to the Borrowers, by noon (local time) on the date when due and shall be
applied ratably by the Agent among the relevant Lenders (unless such amount is not to be shared
ratably in accordance with the express terms hereof). Any payment received by the Agent after such
time shall be deemed to have been received on the next Business Day. Each Advance shall be repaid
or prepaid in the Agreed Currency in which it was made in the amount borrowed and interest payable
thereon shall also be paid in such Agreed Currency. Each payment delivered to the Agent for the
account of any Lender shall be delivered promptly by the Agent to such Lender in the same type of
funds that the Agent received at its address specified pursuant to Article XIII or at any
Lending Installation specified in a notice received by the Agent from such Lender. The Agent is
hereby authorized to charge the account of the applicable Borrower maintained with JPMorgan for
each payment of principal, interest and fees as it becomes due hereunder (it being understood and
agreed that the Agent shall not charge the account of any Non-U.S. Subsidiary Borrower for any
payment of principal or interest on Loans made to any other Borrower, or for fees incurred by any
other Borrower). Any payment by any Borrower to the Agent for the account of the Lenders in
accordance with the terms hereof shall, to the extent of such payment, discharge such Borrower’s
obligation to make such payment to the Lenders. Each reference to the Agent in this Section
2.13 shall also be deemed to refer, and shall apply equally, to
the LC Issuer, in the case of payments required to be made by any Borrower to the LC Issuer
pursuant to Section 2.23. Notwithstanding the foregoing provisions of this Section, if,
after the making of any Advance in any currency other than Dollars, currency control or exchange
regulations are imposed in the country which issues such currency with the result that different
types of such Agreed Currency (the “New Currency”) are introduced and the type of currency in which
the Advance was made (the “Original Currency”) no longer exists or the applicable Borrower is not
able to make payment to the Agent for the account of the Lenders in such Original Currency, then
all payments to be made by such Borrower hereunder in such currency shall be made to the Agent in
such amount and such type of the New Currency or Dollars as shall be equivalent to the amount of
such payment otherwise due hereunder in the Original Currency, it being the intention of the
parties hereto that the applicable Borrower take all risks of the imposition of any such currency
control or exchange regulations. In addition, notwithstanding the foregoing provisions of this
Section, if, after the making of any Advance in any currency other than Dollars, any Borrower is
not able to make payment to the Agent for the account of the Lenders in the type of currency in
which such Advance was made because of the imposition of any such currency control or exchange
regulation, then such Advance shall instead be repaid when due in Dollars in a principal amount
equal to the Dollar Amount (as of the date of repayment) of such Advance.



     2.14. Noteless Agreement; Evidence of Indebtedness.




     (i) Each Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of each Borrower to such Lender resulting from the
Loans



35









 







made by such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder.




     (ii) The Agent shall also maintain accounts in which it will record (a) the amount of
each Loan made hereunder, the Type thereof and the Eurocurrency Interest Period with respect
thereto, (b) the amount of any principal or interest due and payable or to become due and
payable from each Borrower, respectively, to each Lender hereunder and (c) the amount of any
sum received by the Agent hereunder from each Borrower and each Lender’s share thereof.




     (iii) The entries maintained in the accounts maintained pursuant to paragraphs (i) and
(ii) above shall be binding and conclusive evidence, absent manifest error, of the existence
and amounts of the Obligations therein recorded; provided, however, that the
failure of the Agent or any Lender to maintain such accounts or any error therein shall not
in any manner affect the obligation of the applicable Borrower to repay the Obligations
incurred by it in accordance with their terms.




     (iv) Any Lender may request that its Loans be evidenced by a promissory note in
substantially the form of Exhibit D hereto. In such event, the Borrowers shall
execute and deliver to such Lender promissory notes payable to the order of such Lender in a
form approved by the Agent and consistent with the terms of this Agreement. Thereafter, the
Loans evidenced by such promissory notes and interest thereon shall at all times (including
after any assignment pursuant to Section 12.3) be represented by one or more
promissory notes payable to the order of the payee named therein or any assignee pursuant to
Section 12.3, except to the extent that any such Lender or assignee subsequently
returns any such promissory note for cancellation and requests that such Loans once again be
evidenced as described in paragraphs (i) and (ii) above.



     2.15. Telephonic Notices. Each Borrower hereby authorizes the Lenders and the Agent
to extend, convert or continue Advances and Swing Line Loans, as applicable, effect selections of
Types of Advances and to transfer funds based on telephonic notices made by any person or persons
the Agent, the Swing Line Lender or any Lender in good faith believes to be an Authorized Officer
of such Borrower. Each Borrower agrees to deliver promptly to the Agent a written confirmation, if
such confirmation is requested by the Agent, the Swing Line Lender or any Lender, of each
telephonic notice, signed by an Authorized Officer. If the written confirmation differs in any
material respect from the action taken by the Agent, the Swing Line Lender and the Lenders, the
records of the Agent, the Swing Line Lender and the Lenders shall govern absent manifest error.



     2.16. Interest Payment Dates; Interest and Fee Basis. Interest accrued on each
Floating Rate Advance and Swing Line Loan shall be payable on each Payment Date, commencing with
the first such date to occur after the Revolving Loan Funding Date, on any date on which the
Floating Rate Advance or Swing Line Loan is prepaid and at maturity (whether due to acceleration or
otherwise). Interest accrued on that portion of the outstanding principal amount of any Floating
Rate Advance converted into a Eurocurrency Advance on a day other than a Payment Date shall be
payable on the date of conversion. Interest accrued on each Eurocurrency Advance shall be payable
on the last day of its applicable Eurocurrency Interest Period, on any date on which the
Eurocurrency Advance is prepaid, whether by acceleration or otherwise, and at maturity. Interest
accrued on each Eurocurrency Advance having an Eurocurrency Interest Period longer than three
months shall also be payable on the last Business Day of each three-month interval during such
Eurocurrency Interest Period. Interest accrued on all Loans for which the Prime Rate is the basis
shall be calculated for actual days elapsed on the basis of a year of 365 or, when appropriate, 366
days. Interest accrued on all Loans for which the Eurocurrency Rate is the



36









 







basis and all fees
shall be calculated for actual days elapsed on the basis of a year of 360 days, or, in the case of
Loans denominated in currencies other than Dollars, such other basis as is consistent with market
conditions in the applicable jurisdictions, in each case for actual days elapsed. Interest shall
be payable for the day an Advance or Swing Line Loan is made but not for the day of any payment on
the amount paid if payment is received prior to noon (local time) at the place of payment. If any
payment of principal of or interest on an Advance or Swing Line Loan or any fee shall become due on
a day which is not a Business Day, such payment shall be made on the next succeeding Business Day
and, in the case of a principal payment, such extension of time shall be included in computing
interest in connection with such payment.



     2.17. Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions. The Agent will promptly notify each relevant Lender of the contents of each
Aggregate Revolving Loan Commitment Reduction Notice, Borrowing Notice, Conversion/Continuation
Notice, and Prepayment Notice received by it hereunder. The Agent will notify each Lender of the
interest rate applicable to each Eurocurrency Advance promptly upon determination of such interest
rate and will give each Borrower and each Lender prompt notice of each change in the Alternate Base
Rate.



     2.18. Lending Installations. Each Lender may book its Loans at any Lending
Installation selected by such Lender and may change its Lending Installation from time to time.
All terms of this Agreement shall apply to any such Lending Installation and any promissory notes
requested to be issued hereunder shall be deemed held by
each Lender for the benefit of such Lending Installation. Each Lender may, by written or
facsimile notice to the Agent and the Borrowers, designate a Lending Installation through which
Loans will be made by it and for whose account Loan payments and/or payments of LC Obligations are
to be made.



     2.19. Non-U.S. Subsidiary Borrowers. The Parent Borrower may at any time during the
term of this Agreement, with the consent of the Agent, add as a party to this Agreement not more
than one First-Tier Foreign Subsidiary to be an additional “Non-U.S. Subsidiary Borrower” hereunder
by (a) the execution and delivery to the Agent of a duly completed Assumption Letter by such
Subsidiary, with the written consent of the Parent Borrower at the foot thereof and (b) the
execution and delivery to the Agent of such other guaranties, security documents, pledge
agreements, legal opinions from counsel and such other instruments and documents as may be
reasonably required by the Agent. Upon such execution, delivery and consent, such Subsidiary shall
for all purposes be a party hereto as a Non-U.S. Subsidiary Borrower as fully as if it had executed
and delivered this Agreement.



     2.20. Non-Receipt of Funds by the Agent. Unless any Borrower or a Lender, as the case may
be, notifies the Agent prior to the date on which it is scheduled to make payment to the Agent of
(i) in the case of a Lender, the proceeds of a Loan or (ii) in the case of any Borrower, a payment
of principal, interest or fees to the Agent for the account of any of the Lenders or, in the case
of the Parent Borrower, the Swing Line Lender, that it does not intend to make such payment, the
Agent may assume that such payment has been made. The Agent may, but shall not be obligated to,
make the amount of such payment available to the intended recipient in reliance upon such
assumption. If such Lender or such Borrower, as the case may be, has not in fact made such payment
to the Agent, the recipient of such payment shall, on demand by the Agent, repay to the Agent the
amount so made available together with interest thereon in respect of each day during the period
commencing on the date such amount was so made available by the Agent until the date the Agent
recovers such amount at a rate per annum equal to (i) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day or (ii) in the case of payment by such Borrower, the
interest rate applicable to the relevant Loan.



37









 





     2.21. [Reserved]



     2.22. Withholding Tax Exemption. (i) At least five Business Days prior to the first
date on which interest or fees are payable hereunder for the account of any Lender, each Lender
that is not incorporated or otherwise organized under the laws of the United States of America, or
a state thereof (a “Non-U.S. Lender”) agrees that it will deliver to each of the Parent Borrower
and the Agent two duly completed copies of United States Internal Revenue Service Form W-8BEN or
W-8ECI, certifying in either case that such Non-U.S. Lender is entitled to receive payments under
this Agreement without deduction or withholding of any United States federal income taxes, and (ii)
deliver to each of the Parent Borrower and the Agent a United States Internal Revenue Form W-8 or
W-9, as the case may be, and certify that it is entitled to an exemption from United States backup
withholding tax. Each Non-U.S. Lender further undertakes to deliver to each of the Parent Borrower
and the Agent (x) two renewals or additional copies of such form (or a successor form) on or before
the date that such form expires or becomes obsolete, and (y) after the occurrence of any event
requiring a change in the most recent forms so delivered by it, such amendments thereto as may be
reasonably requested by the Parent Borrower or the Agent. All forms or amendments described in the
preceding sentence shall certify that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income taxes,
unless an event (including without limitation any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such Non-U.S. Lender from
duly completing and delivering any such form with respect to it and such Non-U.S. Lender advises
the Parent Borrower and the Agent that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax. For any period during which a
Non-U.S. Lender has failed to provide the Parent Borrower with an appropriate form pursuant to this
Section 2.22, above (unless such failure is due to a change in treaty, law or regulation,
or any change in the interpretation or administration thereof by any governmental authority,
occurring subsequent to the date on which a form originally was required to be provided), such
Non-U.S. Lender shall not be entitled to indemnification with respect to taxes imposed by the
United States; provided that, should a Non-U.S. Lender which is otherwise exempt from or subject to
a reduced rate of withholding tax become subject to taxes because of its failure to deliver a form
required under this Section 2.22, the Borrowers, respectively, shall take such steps as
such Non-U.S. Lender shall reasonably request to assist such Non-U.S. Lender to recover such taxes.



     2.23. Facility LCs.



     (a) The LC Issuer hereby agrees, on the terms and conditions set forth in this Agreement, to
issue stand-by and commercial Facility LCs in Dollars or an Agreed Currency for the account of a
Borrower or any Subsidiary (each, a “Facility LC”) and to renew, extend, increase, decrease or
otherwise modify each Facility LC (each a “Modification”), from time to time from and including the
Closing Date and prior to the Maturity Date (or, if earlier, the date of termination in whole of
the Aggregate Revolving Loan Commitment pursuant to Section 2.7 hereof or the Commitments
pursuant to Section 8.1 hereof) upon the request of the Parent Borrower or, in the case of
a Non-U.S. Subsidiary Borrower, upon the request of the Parent Borrower on its behalf;
provided, that immediately after each such Facility LC is issued or subject to a
Modification, (i) the aggregate Dollar Amount of the outstanding LC Obligations shall not exceed
$100,000,000, (ii) the Dollar Amount of all Eurocurrency Loans and Facility LCs in Agreed
Currencies other than Dollars is less than or equal to the Maximum Foreign Currency Amount, (iii)
the Revolving Credit Obligations shall not exceed the Aggregate Revolving Loan Commitment, (iv) the
aggregate outstanding principal Dollar Amount of all Revolving Loans and Facility LCs made to or
issued for the account of the Non-U.S. Subsidiary Borrowers shall not exceed the Maximum Non-U.S.
Subsidiary Borrower Amount and (v) the conditions precedent set forth in Section 4.3 shall
have been



38









 







satisfied; provided, further, that if the applicable Borrower has
requested a Lender other than JPMorgan to act as LC Issuer with respect to the issuance or
Modification of a particular Facility LC, such issuance or Modification shall be made only in the
sole discretion of such Lender. No Facility LC shall have an expiry date later than the day which
is two years after the Maturity Date; provided that any Facility LC with a one-year term may
provide for the renewal thereof for additional one-year periods (which in no event shall extend
beyond the date which is two years after the Maturity Date).



     (b) On the Revolving Loan Funding Date with respect to the Existing LCs and upon the issuance
or Modification by the LC Issuer of a Facility LC in accordance with this Section 2.23, the
LC Issuer shall be deemed, without further action by any party hereto, to have sold to each
Revolving Loan Lender, and each Revolving Loan Lender shall be deemed, without further action by
any party hereto, to have purchased from the LC Issuer, a participation in such Facility LC (and
each Modification thereof) and the related LC Obligations in an amount equal to the stated amount
available for drawing under the applicable Facility LC and any such related LC Obligations,
multiplied by such Revolving Loan Lender’s Revolving Loan Percentage, provided,
however, that no Revolving Loan Lender’s participation shall extend to Reimbursement
Obligations or amounts available for drawing under outstanding Facility LCs to
the extent such Obligations and amounts have been cash collateralized in accordance with the
terms of Section 2.23(m). Such participation shall constitute usage of each such Revolving
Loan Lenders’ Revolving Loan Commitment.



     (c) Subject to subsection (a), the applicable Borrower (or in the case of a Non-U.S.
Subsidiary Borrower, the Parent Borrower on its behalf) shall give the LC Issuer notice prior to
10:00 a.m. (Chicago time) at least (i) three Business Days for Dollar denominated Facility LCs and
(ii) five Business Days for Facility LCs denominated in any Agreed Currency other than Dollars
prior to the proposed date of issuance or Modification of each Facility LC, specifying the
beneficiary, the Agreed Currency in which the Facility LC is to be denominated, the proposed date
of issuance (or Modification) and the expiry date of such Facility LC, and describing the proposed
terms of such Facility LC and the nature of the transactions proposed to be supported thereby.
Upon receipt of such notice, the LC Issuer shall promptly notify the Agent, and the Agent shall
promptly notify each Lender, of the contents thereof and of the amount of such Lender’s
participation in such proposed Facility LC. The issuance or Modification by the LC Issuer of any
Facility LC shall, in addition to the conditions precedent set forth in Article IV (the
satisfaction of which the LC Issuer shall have no duty to ascertain), be subject to the conditions
precedent that such Facility LC shall be satisfactory to the LC Issuer and that the applicable
Borrower shall have executed and delivered such application agreement and/or such other instruments
and agreements relating to such Facility LC as the LC Issuer shall have reasonably requested (each,
a “Facility LC Application Agreement”). In the event of any conflict between the terms of this
Agreement and the terms of any Facility LC Application Agreement, the terms of this Agreement shall
control.



     (d) The Borrowers shall pay to the Agent, for the account of the Revolving Loan Lenders
ratably in accordance with their respective Revolving Loan Percentages (except as provided in
Section 8.2), a letter of credit fee equal to (i) a percentage per annum equal to the
Applicable Stand-by Facility LC Fee in effect from time to time on the average daily aggregate
amount available for drawings under all stand-by Facility LCs outstanding during such quarter and
(ii) a percentage per annum equal to the Applicable Commercial Facility LC Fee in effect from time
to time on the average daily aggregate amount available for drawings under all commercial Facility
LCs outstanding during such quarter (it being understood and agreed that a Non-U.S. Subsidiary
Borrower shall be liable to pay such fees only with respect to Facility LCs issued for its
account). Each such fee under clauses (i) and (ii) shall be payable in arrears on
each Payment Date after the Revolving Loan Funding Date and on the Maturity



39









 







Date (or, if earlier,
the date of termination in whole of the Aggregate Revolving Loan Commitment pursuant to Section
2.7 hereof or the Commitments pursuant to Section 8.1 hereof). The applicable Borrower
shall pay to the LC Issuer on the date of issuance of each Facility LC, a Facility LC fronting fee
equal to the Applicable Facility LC Fronting Fee of the stated amount available for drawing under
each such Facility LC, and such additional fees and expenses relating to the issuance,
Modification, and payment of Facility LCs in the amounts and at the times agreed between the Parent
Borrower and the LC Issuer (it being understood and agreed that a Non-U.S. Subsidiary Borrower
shall be liable to pay such fronting fee only with respect to Facility LCs issued for its account).
The LC Issuer shall furnish to the Agent upon request its calculations with respect to the amount
of any fee payable under this subsection (d).



     (e) Upon receipt from the beneficiary of any Facility LC of any demand for payment under such
Facility LC, the LC Issuer shall notify the Agent and the Agent shall promptly notify the
applicable Borrower and each other Revolving Loan Lender as to the amount to be paid by the LC
Issuer as a result of such demand and the proposed payment date (the “LC Payment Date”). The
responsibility of the LC Issuer to the applicable Borrower and each Revolving Loan Lender shall be
only to determine that the
documents (including each demand for payment) delivered under each Facility LC in connection
with such presentment shall be in conformity in all material respects with such Facility LC. The
LC Issuer shall endeavor to exercise the same care in the issuance and administration of the
Facility LCs as it does with respect to letters of credit in which no participations are granted,
it being understood that in the absence of any gross negligence or willful misconduct by the LC
Issuer, each Revolving Loan Lender shall be unconditionally and irrevocably liable without regard
to the occurrence of any Default or any condition precedent whatsoever, to reimburse the LC Issuer
on demand for (i) such Revolving Loan Lender’s Revolving Loan Percentage of the amount of each
payment made by the LC Issuer under each Facility LC to the extent such amount is not reimbursed by
the applicable Borrower pursuant to subsection (f) below plus (ii) interest on the foregoing amount
to be reimbursed by such Revolving Loan Lender, for each day from the date of the LC Issuer’s
demand for such reimbursement (or, if such demand is made after 11:00 a.m. (Chicago time) on such
date, from the next succeeding Business Day) to the date on which such Revolving Loan Lender pays
the amount to be reimbursed by it, at a rate of interest per annum equal to the Federal Funds
Effective Rate for such day; provided, however, that upon any such demand by the LC
Issuer for reimbursement from the Revolving Loan Lenders of the amounts described in clauses
(i) and (ii) above (the “LC Reimbursement Amounts”), the LC Reimbursement Amounts shall
be immediately and automatically converted to and redenominated in Dollars equal to the Dollar
Amount of such LC Reimbursement Amounts determined as of the date of such conversion.



     (f) Each Borrower shall be irrevocably and unconditionally obligated to reimburse the LC
Issuer on or by the applicable LC Payment Date for any amounts to be paid by the LC Issuer upon any
drawing under any Facility LC, without presentment, demand, protest or other formalities of any
kind (it being understood and agreed that each Non-U.S. Subsidiary Borrower shall be liable to
reimburse any LC Issuer only for amounts attributable to drawings under Facility LCs issued for its
account); provided, that neither the Borrowers nor any Revolving Loan Lender shall hereby
be precluded from asserting any claim for direct (but not consequential) damages suffered by the
applicable Borrower or such Revolving Loan Lender to the extent, but only to the extent, caused by
(i) the willful misconduct or gross negligence of the LC Issuer in determining whether a request
presented under any Facility LC issued by it complied with the terms of such Facility LC or (ii)
the LC Issuer’s failure to pay under any Facility LC issued by it after the presentation to it of a
request strictly complying with the terms and conditions of such Facility LC. All such amounts
paid by the LC Issuer and remaining unpaid by the applicable Borrower after the applicable LC
Payment Date shall bear interest, payable on demand, for each day until paid, at a rate per annum
equal to the sum of 2% plus the rate applicable to Floating Rate Advances for such day. The LC



40









 







Issuer will pay to each Revolving Loan Lender ratably in accordance with its Revolving Loan
Percentage all amounts received by it from the applicable Borrower for application in payment, in
whole or in part, of the Reimbursement Obligation in respect of any Facility LC issued by the LC
Issuer, but only to the extent such Revolving Loan Lender has made payment to the LC Issuer in
respect of such Facility LC pursuant to subsection (e). Subject to the terms and conditions of
this Agreement (including without limitation the submission of a Borrowing Notice in compliance
with Section 2.9 and the satisfaction of the applicable conditions precedent set forth in
Article IV), any Borrower may request an Advance or, in the case of the Parent Borrower
only, a Swing Line Loan hereunder for the purpose of satisfying any Reimbursement Obligation.



     (g) If after the Revolving Loan Funding Date, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, 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 the LC Issuer or
any Revolving Loan Lender with any request or directive (whether or not having the force of law) of
any such authority, central bank or comparable agency shall impose, modify or deem applicable any
tax, reserve, special
deposit or similar requirement against or with respect to or measured by reference to Facility
LCs issued or to be issued hereunder or participation therein, and the result shall be to increase
the cost to the LC Issuer or any Revolving Loan Lender of issuing or maintaining any Facility LC or
any participation therein, or reduce any amount receivable hereunder by the LC Issuer or any
Revolving Loan Lender in respect of any Facility LC (which increase in cost, or reduction in amount
receivable, shall be the result of such Revolving Loan Lender’s or the LC Issuer’s reasonable
allocation of the aggregate of such increases or reductions resulting from such event), then, upon
demand by the LC Issuer or such Revolving Loan Lender, each Borrower agrees, as applicable, to pay
to the LC Issuer or such Revolving Loan Lender, from time to time as specified by the LC Issuer or
such Revolving Loan Lender, such additional amounts as shall be sufficient to compensate the LC
Issuer or such Revolving Loan Lender for such increased costs or reductions in amounts received by
the LC Issuer or such Revolving Loan Lender (it being understood and agreed that each Non-U.S.
Subsidiary Borrower shall be liable to compensate any LC Issuer only for such costs or reductions
in amounts received with respect to Facility LCs issued for its account). A certificate of the LC
Issuer or such Revolving Loan Lender submitted by the LC Issuer or such Revolving Loan Lender to
the applicable Borrower shall be conclusive as to the amount thereof in the absence of manifest
error.



     (h) The Borrowers’ obligations under this Section 2.23 shall be absolute and
unconditional under any and all circumstances and irrespective of any set off, counterclaim or
defense to payment which the applicable Borrower may have or have had against the LC Issuer, any
Revolving Loan Lender or any beneficiary of a Facility LC. Each Borrower further agrees with the
LC Issuer and the Revolving Loan Lenders that the LC Issuer and the Revolving Loan Lenders shall
not be responsible for, and such Borrower’s Reimbursement Obligation in respect of any Facility LC
shall not be affected by, among other things, the validity or genuineness of documents or of any
endorsements thereon, even if such documents should in fact prove to be in any or all respects
invalid, fraudulent or forged, or any dispute between or among such Borrower, any of its
Subsidiaries, the beneficiary of any Facility LC or any financing institution or other party to
whom any Facility LC may be transferred or any claims or defenses whatsoever of such Borrower or of
any of its Subsidiaries against the beneficiary of any Facility LC or any such transferee. Absent
willful misconduct or gross negligence, the LC Issuer shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Facility LC. Each Borrower agrees that any action taken or
omitted by the LC Issuer or any Revolving Loan Lender under or in connection with each Facility LC
and the related drafts and documents, if done without gross negligence or willful misconduct, shall
be binding



41









 







upon such Borrower and shall not put the LC Issuer or any Revolving Loan Lender under
any liability to such Borrower. Nothing in this subsection (h) is intended to limit the right of
any Borrower to make a claim against the LC Issuer for damages as contemplated by the proviso to
the first sentence of subsection (f) above.



     (i) To the extent not inconsistent with subsection (h) above, the LC Issuer shall be entitled
to rely, and shall be fully protected in relying upon, any Facility LC, draft, writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document 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, independent accountants and other experts selected by the LC Issuer. The LC Issuer shall
be fully justified in failing or refusing to take any action under this Agreement unless it shall
first have received such advice or concurrence of the Required Revolving Loan Lenders as it
reasonably deems appropriate or it shall first be indemnified to its reasonable satisfaction by the
Revolving Loan Lenders against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. Notwithstanding any other provision of
this Section 2.23, the LC Issuer shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement in accordance with a request of the Required
Revolving Lenders (or all of the Lenders, if required hereunder), and such request and any action
taken or failure to act pursuant thereto shall be binding upon the Revolving Loan Lenders and all
future holders of participations in any Facility LCs.



     (j) Each Borrower hereby agrees to indemnify and hold harmless each Lender, the LC Issuer and
the Agent, and their respective directors, officers, agents and employees from and against any and
all claims and damages, losses, liabilities, costs or expenses which such Lender, the LC Issuer or
the Agent may incur (or which may be claimed against such Lender, the LC Issuer or the Agent by any
Person whatsoever) by reason of or in connection with the execution and delivery or transfer of or
payment or failure to pay under any Facility LC or any actual or proposed use of any Facility LC,
including, without limitation, any claims, damages, losses, liabilities, costs or expenses which
the LC Issuer may incur by reason of or in connection with (i) the failure of any other Lender to
fulfill or comply with its obligations to the LC Issuer hereunder (but nothing herein contained
shall affect any rights such Borrower may have against any defaulting Lender) or (ii) by reason of
or on account of the LC Issuer issuing any Facility LC which specifies that the term “Beneficiary”
included therein includes any successor by operation of law of the named Beneficiary, but which
Facility LC does not require that any drawing by any such successor Beneficiary be accompanied by a
copy of a legal document, satisfactory to the LC Issuer, evidencing the appointment of such
successor Beneficiary (it being understood and agreed that each Non-U.S. Subsidiary Borrower shall
be liable pursuant to this subsection (j) only with respect to Facility LCs issued for its
account); provided, that such Borrower shall not be required to indemnify the LC Issuer for
any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent,
caused by (i) the willful misconduct or gross negligence of the LC Issuer in determining whether a
request presented under any Facility LC complied with the terms of such Facility LC or (ii) the LC
Issuer’s failure to pay under any Facility LC after the presentation to it of a request strictly
complying with the terms and conditions of such Facility LC. Nothing in this subsection (j) is
intended to limit the obligations of any Borrower under any other provision of this Agreement.



     (k) Each Revolving Loan Lender shall, ratably in accordance with its Revolving Loan
Percentage, indemnify the LC Issuer, its affiliates and their respective directors, officers,
agents and employees (to the extent not reimbursed by the applicable Borrower) against any cost,
expense (including reasonable counsel fees and disbursements), claim, demand, action, loss or
liability (except such as result from such indemnitees’ gross negligence or willful misconduct or
the LC Issuer’s failure to pay under any




42











 




Facility LC after the presentation to it of a request
strictly complying with the terms and conditions of the Facility LC) that such indemnitees may
suffer or incur in connection with this Section 2.23 or any action taken or omitted by such
indemnitees hereunder.




     (l) In its capacity as a Lender, the LC Issuer shall have the same rights and obligations as
any other Lender.



     (m) Notwithstanding anything to the contrary herein or in any application for a Facility LC,
the applicable Borrower shall, not later than the Maturity Date (or, if earlier, the date of
termination in whole of the Aggregate Revolving Loan Commitment pursuant to Section 2.7
hereof or the Commitments pursuant to Section 8.1 hereof or otherwise to the extent
required in connection with a Designated Prepayment pursuant to Section 2.4(d) hereof) or
on any earlier Business Day after the occurrence and during the continuance of a Default or
Unmatured Default that it receives the Agent’s demand, deliver to the Agent for the benefit of the
Revolving Loan Lenders and the LC Issuer, cash having a value, as determined by the Agent, equal to
one hundred and five percent (105%) of each of the aggregate amount of the outstanding
Reimbursement Obligations and the aggregate amount available for drawing under
Facility LCs that are outstanding. Any such collateral shall be held by the Agent in a
separate account appropriately designated as a cash collateral account in relation to this
Agreement and the Facility LCs and retained by the Agent for the benefit of the Revolving Loan
Lenders and the LC Issuer as collateral security for such Borrower’s obligations in respect of this
Agreement and each of the Facility LCs and LC Drafts. Such amounts shall be applied to reimburse
the LC Issuer for drawings or payments under or pursuant to Facility LCs or LC Drafts, or if no
such reimbursement is required, to payment of such of the other Obligations as the Agent shall
determine (it being understood and agreed that each Non-U.S. Subsidiary Borrower shall be required
to provide collateral only in connection with Facility LCs issued for its account, and any
collateral provided by any Non-U.S. Subsidiary Borrower pursuant to this subsection (m) shall be
applied only toward drawings or payments under or in connection with Facility LCs issued for the
account of such Non-U.S. Subsidiary Borrower and Obligations incurred by such Non-U.S. Subsidiary
Borrower). Amounts remaining in any cash collateral account established pursuant to this
Section 2.23 which are not to be applied to reimburse the Agent or any LC Issuer for
amounts actually paid or to be paid by the Agent or any LC Issuer in respect of Obligations
hereunder shall be promptly returned to the applicable Borrower upon the payment in full of all
Obligations hereunder, after deduction of the Agent’s reasonable expenses incurred in connection
with such cash collateral account.



     2.24. Transitional Letter of Credit Provisions. From and after the Revolving Loan
Funding Date, the Existing LCs shall be deemed to constitute Facility LCs issued pursuant to
Section 2.23 in which the Revolving Loan Lenders participate. Fees shall accrue in respect
of the Existing LCs as provided in Section 2.23(d) beginning as of the Revolving Loan
Funding Date.



     2.25. Judgment Currency. If, for the purposes of obtaining judgment in any court, it
is necessary to convert a sum due from any Borrower hereunder in the currency expressed to be
payable herein (the “specified currency”) into another currency, the parties hereto agree, to the
fullest extent that they may effectively do so, that the rate of exchange used shall be that at
which in accordance with normal banking procedures the Agent could purchase the specified currency
with such other currency at the Agent’s main office in Chicago, Illinois on the Business Day
preceding that on which the final, non-appealable judgment is given. The obligations of the
applicable Borrower in respect of any sum due to any Lender or the Agent hereunder shall,
notwithstanding any judgment in a currency other than the specified currency, be discharged only to
the extent that on the Business Day following receipt by such Lender or the Agent (as the case may
be) of any sum adjudged to be so due in such other currency such Lender or the Agent (as the case
may be) may in accordance with normal, reasonable banking procedures purchase the



43









 







specified
currency with such other currency. If the amount of the specified currency so purchased is less
than the sum originally due to such Lender or the Agent, as the case may be, in the specified
currency, such Borrower agrees, to the fullest extent that it may effectively do so, as a separate
obligation and notwithstanding any such judgment, to indemnify such Lender or the Agent, as the
case may be, against such loss, and if the amount of the specified currency so purchased exceeds
(a) the sum originally due to any Lender or the Agent, as the case may be, in the specified
currency and (b) any amounts shared with other Lenders as a result of allocations of such excess as
a disproportionate payment to such Lender under Section 11.2, such Lender or the Agent, as
the case may be, agrees to remit such excess to the applicable Borrower (it being understood and
agreed that each Non-U.S. Subsidiary Borrower shall be liable under this Section 2.25 only
in connection with Obligations incurred by such Non-U.S. Subsidiary Borrower).



     2.26. Market Disruption. Notwithstanding the satisfaction of all conditions referred to in Article II with
respect to any Advance in any Agreed Currency other than Dollars, if there shall occur on or prior
to the date of such Advance any change in national or international financial, political or
economic conditions or currency exchange rates or exchange controls which would in the reasonable
opinion of the applicable Borrower, the Agent or the Required Lenders make it impracticable for the
Eurocurrency Loans comprising such Advance to be denominated in the Agreed Currency specified by
the applicable Borrower, then the Agent shall forthwith give notice thereof to such Borrower and
the Lenders or such Borrower shall give notice thereof to the Lenders, as the case may be, and such
Eurocurrency Loans shall not be denominated in such currency but shall be made on such Borrowing
Date in Dollars, in an aggregate principal amount equal to the Dollar Amount of the aggregate
principal amount specified in the related Borrowing Notice, as Floating Rate Loans, unless the
applicable Borrower notifies the Agent at least one Business Day before such date that (i) it
elects not to borrow on such date or (ii) it elects to borrow on such date in a different Agreed
Currency, as the case may be, in which the denomination of such Eurocurrency Loans would in the
opinion of the Agent, the Required Lenders be practicable and in an aggregate principal amount
equal to the Dollar Amount of the aggregate principal amount specified in the related Borrowing
Notice.



     2.27. Increase of Commitments. (a) At any time, the Parent Borrower may request
that the Aggregate Revolving Loan Commitment be increased or incremental term loans be extended;
provided that (i) the aggregate amount of such increases and such incremental term loans
shall at no time exceed $200,000,000; (ii) the Parent Borrower shall not make any such request
during the six month period following any reduction in the Aggregate Revolving Loan Commitment
previously made pursuant to Section 2.7; (iii) the Parent Borrower shall not be entitled to
make any such request more frequently than once in each 12-month period; and (iv) each such request
shall be in a minimum amount of at least $20,000,000 and increments of $5,000,000 in excess
thereof. Such request shall be made in a written notice given to the Agent and the applicable
Lenders by the Parent Borrower not less than twenty (20) Business Days prior to the proposed
effective date of such increase or incremental term loan extension, which notice (a “Commitment
Increase Notice”) shall specify the amount of the proposed increase or extension and the proposed
effective date of such increase or extension. No Lender shall have any obligation to increase its
Revolving Loan Commitment or commit to such extension pursuant to a Commitment Increase Notice. On
or prior to the date that is ten (10) Business Days after receipt of the Commitment Increase
Notice, each Lender shall submit to the Agent a notice indicating the maximum amount by which it is
willing to increase its Revolving Loan Commitment or commit to such extension in connection with
such Commitment Increase Notice (any such notice to the Agent being herein a “Lender Increase
Notice”). Any Lender which does not submit a Lender Increase Notice to the Agent prior to the
expiration of such ten (10) Business Day period shall be deemed to have denied any such increase or
extension. In the event that the increases or extensions set forth in the Lender Increase Notices
exceed the amount requested by the Parent Borrower in the Commitment Increase Notice, the Agent and
the



44









 







Arranger shall have the right, in consultation with the Parent Borrower, to allocate the amount
of increases or extensions necessary to meet the Parent Borrower’s Commitment Increase Notice. In
the event that the Lender Increase Notices are less than the amount requested by the Parent
Borrower, the Agent shall so advise the Parent Borrower not later than ten (10) Business Days prior
to the proposed effective date, and not later than three (3) Business Days prior to the proposed
effective date the Parent Borrower may notify the Agent of any financial institution that shall
have agreed to become a “Lender” party hereto (a “Proposed New Lender”) in connection with the
Commitment Increase Notice. Any Proposed New Lender shall be consented to by the Agent (which
consent shall not be unreasonably withheld). If the Parent Borrower shall not have arranged any
Proposed New Lender(s) to commit to the shortfall from the Lender Increase Notices, then the Parent
Borrower shall be deemed to have reduced the amount of its Commitment
Increase Notice to the aggregate amount set forth in the Lender Increase Notices. Based upon
the Lender Increase Notices, any allocations made in connection therewith and any notice regarding
any Proposed New Lender, if applicable, the Agent shall notify the Parent Borrower and the Lenders
on or before the Business Day immediately prior to the proposed effective date of the amount of
each Lender’s and Proposed New Lenders’ Revolving Loan Commitment and/or incremental term loan
commitment amount (the “Effective Commitment Amount”) and the amount of the Aggregate Revolving
Loan Commitment and aggregate incremental term loan commitment amount, which amount shall be
effective on the following Business Day. No consent of any Lender (other than the Lenders
participating in any increase in the Aggregate Revolving Loan Commitment or extension of
incremental term loans) shall be required for any increase in the Aggregate Revolving Loan
Commitment or extension of incremental term loans pursuant to this Section 2.27. Any
increase in the Aggregate Revolving Loan Commitment or extension of incremental term loans shall be
subject to the following conditions precedent: (A) the Parent Borrower shall have obtained the
consent thereto of each Subsidiary party to the Subsidiary Guaranty (each, a “Guarantor”) and its
reaffirmation of the Credit Document(s) executed by it, which consent and reaffirmation shall be in
writing and in form and substance reasonably satisfactory to the Agent, (B) as of the date of the
Commitment Increase Notice and as of the proposed effective date of such increase or extension, all
representations and warranties shall be true and correct in all material respects as though made on
such date and no event shall have occurred and then be continuing which constitutes a Default or
Unmatured Default, (C) the Parent Borrower, the Agent and each Proposed New Lender or Lender that
shall have agreed to provide a “Revolving Loan Commitment” in support of such increase in the
Aggregate Revolving Loan Commitment or to provide an incremental term loan commitment shall have
executed and delivered a “Commitment and Acceptance” substantially in the form of Exhibit J
hereto, (D) counsel for the Parent Borrower and for the Guarantors shall have provided to the Agent
supplemental opinions in form and substance reasonably satisfactory to the Agent and (E) the Parent
Borrower and the Proposed New Lender shall otherwise have executed and delivered such other
instruments and documents as may be required under Article IV or that the Agent shall have
reasonably requested in connection with such increase or extension. If any fee shall be charged by
the applicable Lenders in connection with any such increase or extension, such fee shall be in
accordance with then prevailing market conditions, which market conditions shall have been
reasonably documented by the Agent to the Parent Borrower. Upon satisfaction of the conditions
precedent to any increase in the Aggregate Revolving Loan Commitment or extension of incremental
term loans, the Agent shall promptly advise the Parent Borrower and each Lender of the effective
date of such increase or extension. Upon the effective date of any such increase or extension that
is supported by a Proposed New Lender, such Proposed New Lender shall be a party to this Agreement
as a Lender and shall have the rights and obligations of a Lender hereunder. Nothing contained
herein shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to
increase its Revolving Loan Commitment or provide an incremental term loan commitment at any time.



45









 





          (b) For purposes of this clause (b), (A) the term “Buying Lender(s)” shall mean (1)
each Revolving Loan Lender the Effective Commitment Amount of which is greater than its Revolving
Loan Commitment prior to the effective date of any increase in the Aggregate Revolving Loan
Commitment, and (2) each Proposed New Lender that is allocated an Effective Commitment Amount in
connection with any Commitment Increase Notice and (B) the term “Selling Lender(s)” shall mean each
Revolving Loan Lender whose Revolving Loan Commitment is not being increased from that in effect
prior to such increase in the Aggregate Revolving Loan Commitment. Effective on the effective date
of any increase in the Aggregate Revolving Loan Commitment pursuant to clause (a) above, each
Selling Lender hereby sells, grants, assigns and conveys to each Buying Lender, without recourse,
warranty, or representation of any kind, except as specifically provided herein, an undivided
percentage in such Selling Lender’s right, title and interest in and to its Outstanding Credit
Exposure in the respective Dollar Amounts and
percentages necessary so that, from and after such sale, each such Selling Lender’s
Outstanding Credit Exposure shall equal such Selling Lender’s Percentage (calculated based upon the
Effective Commitment Amounts) of the Aggregate Outstanding Credit Exposure. Effective on the
effective date of the increase in the Aggregate Revolving Loan Commitment pursuant to clause (a)
above, each Buying Lender hereby purchases and accepts such grant, assignment and conveyance from
the Selling Lenders. Each Buying Lender hereby agrees that its respective purchase price for the
portion of the Outstanding Credit Exposure purchased hereby shall equal the respective Dollar
Amount necessary so that, from and after such payments, each Buying Lender’s Outstanding Credit
Exposure shall equal such Buying Lender’s Percentage (calculated based upon the Effective
Commitment Amounts) of the Aggregate Outstanding Credit Exposure. Such amount shall be payable on
the effective date of the increase in the Aggregate Revolving Loan Commitment by wire transfer of
immediately available funds to the Agent. Each Selling Lender hereby represents and warrants to
each Buying Lender that such Selling Lender owns the Outstanding Credit Exposure being sold and
assigned hereby for its own account and has not sold, transferred or encumbered any or all of its
interest in such Loans, except for participations which will be extinguished upon payment to
Selling Lender of an amount equal to the portion of the Outstanding Credit Exposure being sold by
such Selling Lender. Each Buying Lender hereby acknowledges and agrees that, except for each
Selling Lender’s representations and warranties contained in the foregoing sentence, each such
Buying Lender has entered into its Commitment and Acceptance with respect to such increase on the
basis of its own independent investigation and has not relied upon, and will not rely upon, any
explicit or implicit written or oral representation, warranty or other statement of the Lenders or
the Agent concerning the authorization, execution, legality, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or the other Credit Documents. The Parent Borrower
hereby agrees to compensate each Selling Lender for all losses, expenses and liabilities incurred
by each Selling Lender in connection with the sale and assignment of any Eurocurrency Loan
hereunder on the terms and in the manner as set forth in Section 3.4.




ARTICLE III: CHANGE IN CIRCUMSTANCES




     3.1. Yield Protection. If, after the Closing Date, the adoption of or change in, any
law or any governmental or quasi-governmental rule, regulation, policy, guideline or directive
(whether or not having the force of law), or any interpretation thereof, or the compliance of any
Lender therewith,




     (i) subjects any Lender or any applicable Lending Installation to any tax, duty, charge
or withholding on or from payments due from any Borrower (excluding taxation of the overall
net income of any Lender or applicable Lending Installation), or changes the basis of
taxation of payments to any Lender in respect of its Revolving Loan Commitment, Loans, LC
Obligations or other amounts due it hereunder, or



46









 






     (ii) imposes or increases or deems applicable any reserve, assessment, insurance
charge, special deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or any applicable Lending Installation (other
than reserves and assessments taken into account in determining the interest rate applicable
to Eurocurrency Advances) in respect of its Revolving Loan Commitment, Loans, LC Obligations
or other amounts due it hereunder, or




     (iii) imposes any other condition the result of which is to increase the cost to any
Lender or any applicable Lending Installation of making, funding or maintaining its
Revolving Loan Commitment, Loans or LC Obligations or reduces any amount receivable by any
Lender or any applicable Lending Installation in connection with Loans under this Agreement
or its LC Obligations, or requires any Lender or any applicable Lending Installation to make
any payment calculated by reference to the amount of its Revolving Loan Commitment, Loans or
LC Obligations held or interest received by it, by an amount deemed material by such Lender,


then, within 15 days of demand by such Lender, the applicable Borrower shall pay such Lender that
portion of such increased expense incurred or reduction in an amount received which such Lender
determines is attributable to making, funding and maintaining its Loans, LC Obligations and its
Revolving Loan Commitment.




     3.2. Changes in Capital Adequacy Regulations. If a Lender determines the amount of
capital required or expected to be maintained by such Lender, any Lending Installation of such
Lender or any corporation controlling such Lender is increased as a result of a “Change” (as
defined below), then, within 15 days of demand by such Lender the applicable Borrower shall pay
such Lender the amount necessary to compensate, on an after-tax basis, for any shortfall in the
rate of return on the portion of such increased capital which such Lender reasonably determines is
attributable to this Agreement, its Outstanding Credit Exposure or its Commitments (after taking
into account such Lender’s policies as to capital adequacy and the Change). “Change” means (i) any
change after the Closing Date in the “Risk-Based Capital Guidelines” (as defined below) or (ii) any
adoption of or change in any other law, governmental or quasi-governmental rule, regulation,
policy, guideline, interpretation, or directive (whether or not having the force of law) after the
Closing Date which affects the amount of capital required or expected to be maintained by any
Lender or any Lending Installation or any corporation controlling any Lender. “Risk-Based Capital
Guidelines” means (i) the risk-based capital guidelines in effect in the United States on the
Closing Date, including transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States implementing the July 1988 report
of the Basel Committee on Banking Regulation and Supervisory Practices Entitled “International
Convergence of Capital Measurements and Capital Standards,” including transition rules, and any
amendments to such regulations adopted prior to the Closing Date.



     3.3. Availability of Types of Advances. If any Lender determines that maintenance of
any of its Eurocurrency Loans at a suitable Lending Installation would violate any applicable law,
rule, regulation or directive, whether or not having the force of law, such Lender shall promptly
give notice thereof to the Borrowers and the Agent shall suspend the availability of Eurocurrency
Advances and require any and all outstanding Eurocurrency Advances to be repaid. If the Required
Lenders determine that (i) deposits of a type, currency or maturity appropriate to match fund
Eurocurrency Advances are not available or (ii) the interest rate applicable to Eurocurrency
Advances does not accurately reflect the cost of making Eurocurrency Advances, then the Agent shall
promptly give notice thereof to the Borrowers and the Lenders shall suspend the availability of
Eurocurrency Advances until such time as the circumstances giving rise to such suspension no longer
exist.



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     3.4. Funding Indemnification. If any payment of a Eurocurrency Advance occurs on a date which is not the last day of the
applicable Eurocurrency Interest Period, whether because of acceleration, prepayment or otherwise
(but excluding any such prepayment arising pursuant to Section 3.3), or a Eurocurrency
Advance is not made or prepaid on the date specified by the applicable Borrower for any reason
other than default by the Lenders, or a Eurocurrency Loan is assigned other than on the last day of
the Eurocurrency Interest Period applicable thereto as a result of a request by the Parent Borrower
pursuant to Section 3.6, the applicable Borrower will indemnify each Lender for any loss or
cost incurred by it resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain such Advance.



     3.5. Lender Statements; Survival of Indemnity. To the extent reasonably possible,
each Lender shall designate an alternate Lending Installation with respect to its Eurocurrency
Loans to reduce any liability of any Borrower to such Lender under Sections 3.1 and
3.2 or to avoid the unavailability of a Type of Advance under Section 3.3, so long
as such designation is not disadvantageous to such Lender. Each Lender shall deliver to the
applicable Borrower a written statement of such Lender as to the amount due, if any, under
Sections 3.1, 3.2 or 3.4. Such written statement shall set forth in
reasonable detail the calculations upon which such Lender determined such amount and shall be
final, conclusive and binding on the applicable Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in connection with a Eurocurrency Loan shall
be calculated as though each Lender funded its Eurocurrency Loan through the purchase of a deposit
of the type, currency and maturity corresponding to the deposit used as a reference in determining
the Eurocurrency Rate applicable to such Loan, whether in fact that is the case or not. Unless
otherwise provided herein, the amount specified in the written statement or certificate shall be
payable on demand after receipt by the applicable Borrower of the written statement. The
obligations of each Borrower under Sections 3.1, 3.2 and 3.4 shall survive
payment of the Obligations and termination of this Agreement.



     3.6. Replacement Lenders. If any Lender either (i) failed to fund its Revolving Loan
Percentage or Term Loan Percentage (or Term Tranche Percentage), as applicable, of any Advance
requested by any Borrower, or to fund a Revolving Loan in order to repay Swing Line Loans or
Reimbursement Obligations or participations with respect to Letters of Credit, which such Lender is
obligated to fund under the terms of this Agreement and which failure has not been cured; (ii)
makes a demand for compensation pursuant to Section 2.23(g), Section 3.1 or
Section 3.2, (iii) is unable to fund at the Eurocurrency Rate or determines that such rate
is unavailable or does not accurately reflect its cost of making or maintaining any Eurocurrency
Loan pursuant to Section 3.3 for reasons not generally applicable to the other Lenders or
(iv) invokes the provisions of Section 9.2, the Parent Borrower may require and have such
Lender transfer, pursuant to and in accordance with Section 12.3, all of its rights and
obligations under the Credit Documents to one or more Purchasers selected by the Parent Borrower,
acceptable to the Agent and the LC Issuer, and willing to accept such assignment provided such
Lender is paid upon such assignment all amounts of principal, interest and fees and all other
amounts accrued hereunder to the date of such assignment. No such assignment shall affect (a) any
liability or obligation of any Borrower or any other Lender to such replaced Lender, which accrued
on or prior to the date of such assignment or (b) such replaced Lender’s rights or obligations
hereunder in respect of any such liability or obligation.



     3.7. Payments by Non-U.S. Subsidiary Borrowers. Notwithstanding anything herein to the contrary, no Non-U.S. Subsidiary Borrower shall be
liable under Sections 3.1, 3.2 and 3.4 with respect to payments required in
connection with Loans made to, or Obligations incurred by or on behalf of, any other Borrower.



48









 





     3.8. Tax Gross-Up re . Non-U.S. Subsidiary Borrower. Each Non-U.S. Subsidiary
Borrower hereby confirms that if such Non-U.S. Subsidiary Borrower shall be required to make any
deduction or withholding for or on account of any tax imposed by its jurisdiction of organization
(or any subdivision thereof) from a payment of interest and/or any fee payable under this Agreement
and the other Credit Documents, then the amount payable in respect of any such interest and/or fee
shall be increased as necessary so that the Agent and each Lender shall receive an amount equal to
the amount the Agent or such Lender (as applicable) would have received had no such deduction or
withholding been made; provided, however, that such Non-U.S. Subsidiary Borrower
shall not be required to increase any amount payable for interest and/or fees on account of any
deduction or withholding for or on account of any tax imposed by its jurisdiction of organization
(or any subdivision thereof) to the extent that such deduction or withholding is caused by the
failure of the Agent to make reasonable efforts to obtain any applicable exemption from the
requirement for such Non-U.S. Subsidiary Borrower to make such deduction or withholding. If the
Agent or a Lender determines, in its reasonable discretion, that it has received a refund of,
credit against or remission for any taxes as to which it has been indemnified by a Borrower or with
respect to which such Borrower has paid additional amounts pursuant to this Section 3.8, it shall
pay over such refund or the amount of such credit or remission to such Borrower (but only to the
extent of indemnity payments made by such Borrower, or additional amounts paid by such Borrower
under this Section 3.8 with respect to such taxes giving rise to such refund, credit or remission),
net of all reasonable out-of-pocket expenses of the Agent or such Lender and without interest
(other than any interest paid by the relevant governmental authority with respect to such refund,
credit or remission); provided, that each such Borrower, upon the request of the Agent or such
Lender, agrees to repay the amount paid over to such Borrower (plus any penalties, interest or
other charges imposed by the relevant governmental authority) to the Agent or such Lender in the
event the Agent or such Lender is required to repay such refund to such governmental authority.
This Section shall not be construed to require the Agent or any Lender to make available its tax
returns (or any other information relating to its taxes which it deems confidential) to any
Borrower or any other Person. As used herein, “governmental authority” means the government of the
United States of America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.



     3.9. UK Taxes. The parties hereto hereby agree with and acknowledge the following
provisions:




     (i) Each Revolving Loan Lender:




     (a) irrevocably appoints the Agent to act as syndicate manager under,
and authorizes the Agent to operate, and take any action necessary or
desirable under, the Provisional Treaty Relief scheme as described in the
HMRC (formerly the Inland Revenue) Guidelines dated January 2003 and
administered by the HMRC (the “PTR Scheme”) in connection with the
Credit Agreement




     (b) shall cooperate with the Agent in completing any procedural
formalities necessary under the PTR Scheme, and shall promptly supply to the
Agent such information as the Agent may request in connection with the
operation of the PTR Scheme; and




     (c) without limiting the liability of the UK Borrower under the Credit
Agreement, shall, within 5 Business Days of demand, indemnify the Agent for
any liability or loss incurred by the Agent as a result of the Agent acting
as



49









 







syndicate manager under the PTR Scheme in connection with such Lender’s
participation in any Credit Extension (except to the extent that the
liability or loss arises directly from the Agent’s gross negligence or
willful misconduct).




     (ii) The UK Borrower acknowledges that it is fully aware of its contingent obligations
under the PTR Scheme and shall (A) promptly supply to the Agent such information as the
Agent may request in connection with the operation of the PTR Scheme and (B) act in
accordance with any provisional notice issued by the HMRC under the PTR Scheme.




     (iii) All of the parties hereto acknowledge that the Agent (A) is entitled to rely
completely upon information provided to it in connection with sub-paragraph (i) or (ii)
above, (B) is not obliged to undertake any inquiry into the accuracy of such information,
nor into the taxation status of any Lender or, as the case may be, the UK Borrower providing
such information and (C) shall have no liability to any Person for the accuracy of any
information the Agent submits in connection with sub-paragraph (i)(a) above.



ARTICLE IV: CONDITIONS PRECEDENT




     4.1. Closing Date. The Term Loan Lenders shall not be required to make the Term
Loans, the Revolving Loan Lenders shall not be required to make any initial Revolving Credit
Advance, the Swing Line Lender shall not be required to make Swing Line Loans, no LC Issuer shall
be required to issue a Facility LC hereunder unless the Parent Borrower has furnished (if
applicable) to the Agent, with sufficient copies for the Lenders, all in form and substance
satisfactory to the Agent:




	 	(a)	 	Copies of the articles or certificate of incorporation (or other comparable
constituent document) of each Borrower and the initial Obligor Subsidiaries, together,
in each case, with all amendments, and a certificate of good standing, both certified
by the appropriate governmental officer in its jurisdiction of organization, as well as
any other information required by Section 326 of the USA Patriot Act, 31 U.S.C. Section
5318 or otherwise necessary for the Agent or any Lender to verify the identity of any
Borrower and the initial Obligor Subsidiaries as required by Section 326 of the USA
Patriot Act, 31 U.S.C. Section 5318.
	 
	 	(b)	 	Copies, certified by the Secretary or Assistant Secretary of each Borrower and
the initial Obligor Subsidiaries, of its by-laws (or other comparable governing
document) and of its Board of Directors’ resolutions (and resolutions of other bodies,
if any are deemed necessary by counsel for any Lender) authorizing the execution of the
Parent Borrower Credit Documents and Subsidiary Guaranties, as applicable, to which such person is a
party.
	 
	 	(c)	 	An incumbency certificate, executed by the Secretary or Assistant Secretary of
each Borrower and the initial Obligor Subsidiaries, which shall identify by name and
title and bear the signature of the officers of such Borrower and each initial Obligor
Subsidiary, as applicable, authorized to sign the Parent Borrower Credit Documents,
Subsidiary Guaranties and initial Collateral Documents, as applicable, and, in the case
of each Borrower, to incur Credit Extensions hereunder, upon which certificate the
Agent and, the LC Issuer, the Swing Line Lender and the Lenders shall be entitled to
rely until informed of any change in writing by the Parent Borrower.




50









 






	 	(d)	 	A certificate, signed by the chief financial officer of the Parent Borrower,
stating that on the Closing Date (i) no Default or Unmatured Default has occurred and
is continuing and (ii) no material adverse change in the business, operations, property
or financial condition of the Parent Borrower and its Subsidiaries (taken as a whole)
has occurred since December 31, 2007.
	 
	 	(e)	 	The written opinions of Bryan Cave, counsels to each Borrower and the initial
Obligor Subsidiaries, and, to the extent requested by the Agent, each Material Foreign
Subsidiary’s foreign counsel (if any), dated as of the Closing Date and in the forms of
the opinions attached hereto as Exhibit E, in each case addressed to the Agent
and the Lenders, with respect to the (without limitation) due authorization, execution
and enforceability of this Agreement and the other Credit Documents, as applicable.
	 
	 	(f)	 	A written opinion of foreign counsel with respect to each Pledge Agreement (if
any) to be delivered on the Closing Date, addressed to the Agent and the Lenders, in
form and substance satisfactory to the Agent.
	 
	 	(g)	 	[Intentionally Omitted].
	 
	 	(h)	 	Written money transfer instructions, in substantially the form of Exhibit
G hereto, addressed to the Agent and signed by an Authorized Officer, together with
such other related money transfer authorizations as the Agent may have reasonably
requested.
	 
	 	(i)	 	The Lenders, the Arranger and the Agent shall have received (i) all fees
required to be paid and (ii) reimbursement for all expenses for which invoices have
been presented, in each case on or before the Closing Date.
	 
	 	(j)	 	Promissory notes payable to each of the Lenders requesting promissory notes
pursuant to Section 2.14(iv) hereof.
	 
	 	(k)	 	Such other documents as the Agent or any Lender or its counsel may have
reasonably requested including, without limitation, the Parent Guaranty, the Subsidiary
Guaranty, Pledge Agreements, and each other document reflected on the List of Closing
Documents attached in Exhibit H to this Agreement.





     The Agent shall notify the Parent Borrower and the Lenders of the date on which the foregoing
conditions have been met, and such notice shall be conclusive and binding.



     4.1A Revolving Loan Funding. The Revolving Loan Lenders shall not be required to
make the Revolving Loans unless the Parent Borrower has furnished (if applicable) to the Agent,
with sufficient copies for the Lenders, all in form and substance satisfactory to the Agent:




(i) Evidence satisfactory to the Agent and its counsel that, concurrently with the
satisfaction of the other conditions precedent under this Section 4.1A: (1)
the entire principal amount (together with accrued interest and premium, if any) of
the Existing Indebtedness shall be repaid in full (other than the Existing LCs) and
(2) any and all lender commitments under the Existing Credit Agreement shall have
been terminated.



51









 






(ii) The Lenders, the Arranger and the Agent shall have received (i) all fees
required to be paid and (ii) reimbursement for all expenses for which invoices have
been presented, in each case on or before the Revolving Loan Funding Date.



     The Agent shall notify the Parent Borrower and the Lenders of the date on which the foregoing
conditions have been met, and such notice shall be conclusive and binding. Notwithstanding the
foregoing, if the foregoing conditions in Section 4.1A are not satisfied (or waived
pursuant to Section 8.3 and Section 8.4) at or prior to 5 p.m., Chicago time, on
October 31, 2008, then, in such event, the Revolving Loan Commitments shall terminate at such time.



     4.1B. Term Loan Funding. The Term Loan Lenders shall not be required to make the
Term Loans unless the CompAir Acquisition shall be consummated, substantially concurrently with the
making of the Term Loans, in compliance with the following terms and conditions:




(i) Evidence reasonably satisfactory to the Agent that all required governmental and
material third party approvals required by the CompAir Acquisition pursuant to the
CompAir Acquisition Agreement, the financing contemplated hereby and the continuing
operations of the Parent Borrower and its Subsidiaries (including shareholder
approvals, if any) shall have been obtained and be in full force and effect, and all
applicable waiting periods shall have expired without any action being taken or
threatened by any competent authority which would restrain, prevent or otherwise
impose adverse conditions on the CompAir Acquisition or the financing thereof.




(ii) There shall be no injunction or temporary restraining order which, in the
reasonable judgment of the Agent would prohibit the funding of the Term Loans or the
consummation of the CompAir Acquisition; and there shall be no pending litigation
which would reasonably be expected to result in a material adverse effect on the
Parent Borrower and its Subsidiaries, taken as a whole, both before and after giving
effect, including pro forma effect, to the CompAir Acquisition.




(iii) The CompAir Acquisition shall be consummated in accordance with the terms of
the CompAir Acquisition Agreement and all applicable requirements of the law. The
capitalization, structure and equity ownership of the Parent Borrower, the Target
and their respective subsidiaries after the Acquisition shall be consistent in all
respects with the capitalization, structure and equity ownership previously
discussed with the Agent.




(iv) No provision of the CompAir Acquisition Agreement shall have been waived,
amended, supplemented or otherwise modified in any respect materially adverse to the
Parent Borrower, the Agent or the Lenders.




(v) Each of the Lenders shall have received consolidating pro forma balance sheets
and income statements of the Parent Borrower as of the date of the most recently
completed publicly reported consolidated quarterly balance sheet of the Parent
Borrower, giving effect to the CompAir Acquisition and the financings contemplated
thereby (including pursuant to this Agreement) as if such transactions had occurred
on such date, prepared on a pro forma basis reasonably acceptable to the Agent.



52









 






(vi) The Agent shall have reviewed a copy of any fairness opinion relating to the
terms of the CompAir Acquisition, if any such opinion is delivered to the Parent
Borrower in connection with the CompAir Acquisition.




(vii) The Agent shall have received a certificate from the chief financial officer
of the Parent Borrower supporting the conclusions that after giving effect to the
CompAir Acquisition, the Parent Borrower is solvent and will be solvent subsequent
to incurring the indebtedness in connection with the CompAir Acquisition, will be
able to pay its debts and liabilities as they become due and will not be left with
unreasonably small capital with which to engage in its businesses.




(viii) The Agent shall have received evidence satisfactory to it of the concurrent
termination of, payment in full of all obligations and release and discharge of any
and all liens under, the GMAC Facility pursuant to payoff letters in form and
substance reasonably satisfactory to the Agent and its counsel. The consummation of
the CompAir Acquisition and related transactions (financing or otherwise) shall not
trigger any change of control rights under any indebtedness in excess of $15,000,000
to remain outstanding.




(ix) There shall not exist (pro forma for the CompAir Acquisition and the financing
thereof) any Unmatured Default or Default or any default under the Senior
Subordinated Notes, and the Agent shall have received a compliance certificate in
substantially the form of Exhibit F hereto signed by the Parent Borrower’s
chief financial officer showing the calculations necessary to determine compliance
with Sections 6.21 and 6.22 of this Agreement after giving pro forma
effect to the CompAir Acquisition.




(x) No material adverse change in the business, operations, property or financial
condition of the Parent Borrower and its Subsidiaries (taken as a whole) (both
before and after giving effect, including pro forma effect, to the CompAir
Acquisition) shall have occurred since December 31, 2007.




(xi) The Lenders, the Arranger and the Agent shall have received (i) all fees
required to be paid and (ii) reimbursement for all expenses for which invoices have
been presented, in each case on or before the Term Loan Funding Date.




(xii) The Agent should have received, for distribution to the Lenders, updated
Schedules hereto reflecting the CompAir Acquisition.



     The Agent shall notify the Parent Borrower and the Lenders of the date on which the foregoing
conditions have been met, and such notice shall be conclusive and binding. Notwithstanding the
foregoing, if the foregoing conditions in Section 4.1B are not satisfied (or waived
pursuant to Section 8.3 and Section 8.4) at or prior to 5 p.m., Chicago time, on
January 6, 2009, then, in such event, the Term Loan Commitments shall terminate at such time.



     4.2. Initial Advance to each Additional Non-U.S. Subsidiary Borrower. The Lenders
shall not be required to make a Revolving Credit Advance hereunder and no LC Issuer shall be
required to issue a Facility LC hereunder, in each case, to or with respect to any Non-U.S.
Subsidiary Borrower (other than the German Borrower or the UK Borrower), which may become a party
hereto after the Revolving Loan Funding Date, unless (a) all such documents, instruments and
agreements required by the Agent granting a first priority security interest in the Applicable
Pledge Percentage of the issued and outstanding capital



53









 







stock or other ownership interests in such
Non-U.S. Subsidiary Borrower in favor of the Agent on behalf of the Lenders shall have been
executed and ready to be filed in the appropriate jurisdictions and (b) the Parent Borrower or such
Non-U.S. Subsidiary Borrower has furnished or caused to be furnished to the Agent with sufficient
copies for the Lenders:(i) The Assumption Letter executed and delivered by such Non-U.S. Subsidiary
Borrower and containing the written consent of the Parent Borrower at the foot thereof, as
contemplated by Section 2.19.



     (ii) Copies, certified by the Secretary or Assistant Secretary of such Non-U.S. Subsidiary
Borrower, of its Board of Directors’ resolutions (and resolutions of other bodies, if any are
deemed necessary by counsel for any Lender) approving the Assumption Letter and the other Non-U.S.
Subsidiary Borrower Credit Documents.



     (iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of such
Non-U.S. Subsidiary Borrower, which shall identify by name and title and bear the signature of the
officers of such Non-U.S. Subsidiary Borrower authorized to sign the Assumption Letter and the
other Non-U.S. Subsidiary Borrower Credit Documents, upon which certificate the Agent and the
Lenders shall be entitled to rely until informed of any change in writing by the Parent Borrower.



     (iv) An opinion of counsel to such Non-U.S. Subsidiary Borrower, with respect to the laws of
its jurisdiction of organization, addressed to the Agent and the Lenders, substantially in the
pertinent form attached as part of Exhibit E hereto.



     (v) Promissory notes payable to each of the Lenders requesting promissory notes pursuant to
Section 2.14(iv) hereof.



     4.3. Each Credit Extension. The Lenders shall not be required to make any Advance
(other than an Advance that, after giving effect thereto and to the application of the proceeds
thereof, does not increase the aggregate amount of outstanding Advances), the Swing Line Lender
shall not be obligated to make a Swing Line Loan, and no LC Issuer shall be required to issue any
Facility LC, unless on the applicable Credit Extension Date, both immediately prior to, and
immediately after giving effect to, such Credit Extension and the application of proceeds thereof:




	 	(a)	 	Either (i) in the case of an Advance, the Agent shall have received a Notice of
Borrowing in compliance with Section 2.9, (ii) in the case of a Swing Line
Loan, the Swing Line Lender shall have received a notice of borrowing in compliance
with Section 2.2(b) or (iii) in the case of a Facility LC, the LC Issuer shall
have received a request for the issuance of a Facility LC in compliance with
Section 2.23 (together with any Facility LC Application Agreement requested by
the LC Issuer pursuant to Section 2.23(c)).
	 
	 	(b)	 	The Revolving Credit Obligations do not and would not exceed the Aggregate
Revolving Loan Commitment.
	 
	 	(c)	 	The aggregate outstanding principal Dollar Amount of all Eurocurrency Advances
which are Revolving Loans in currencies other than Dollars does not and would not
exceed the Maximum Foreign Currency Amount.
	 
	 	(d)	 	In the case of an Advance proposed to be made to a Non-U.S. Subsidiary
Borrower, the aggregate principal Dollar Amount of Revolving Loans and Facility LCs
made to or




54









 






	 	 	 	issued for the account of the Non-U.S. Subsidiary Borrowers do not and would
not exceed the Maximum Non-U.S. Subsidiary Borrower Amount.






	 	(e)	 	There exists no Default or Unmatured Default.
	 
	 	(f)	 	The representations and warranties contained in Article V are true and
correct in all material respects as of such Borrowing Date except to the extent any
such representation or warranty is stated to relate solely to an earlier date, in which
case such representation or warranty shall have been true and correct in all material
respects on and as of such earlier date.
	 
	 	(g)	 	There exists no material adverse change in the business, financial condition or
operations of the Parent Borrower and its Subsidiaries taken as a whole since the
Parent Borrower’s consolidated financial statements as of December 31, 2007 (it being
understood and agreed that consummation of the CompAir Acquisition shall not constitute
such a material adverse change).





     Each Borrowing Notice with respect to each such Advance, each notice of borrowing with respect
to any Swing Line Loan and each request for the issuance of a Facility LC pursuant to Section
2.23, shall constitute a representation and warranty by the applicable Borrower that the
conditions contained in Sections 4.3(b), (c), (d), (e) and
(f) have been satisfied.



ARTICLE V: REPRESENTATIONS AND WARRANTIES




     Each Borrower (as to itself and its Subsidiaries) represents and warrants to the Lenders that:



     5.1. Existence and Standing. Each of the Parent Borrower and its Subsidiaries is a
corporation, partnership or limited liability company duly incorporated or organized, as the case
may be, validly existing and (except to the extent such concept is not applicable to such entity or
such jurisdiction) in good standing under the laws of its jurisdiction of incorporation or
organization and has all requisite authority to conduct its business in each jurisdiction in which
its business is conducted except any jurisdiction in which the failure to have such requisite
authority could not reasonably be expected to have a Material Adverse Effect.



     5.2. Authorization and Validity. The Parent Borrower has the corporate power and
authority and legal right to execute and deliver the Parent Borrower Credit Documents and to
perform its obligations thereunder. The execution
and delivery by the Parent Borrower of the Parent Borrower Credit Documents and the
performance of its obligations thereunder have been duly authorized by proper corporate
proceedings, and the Parent Borrower Credit Documents constitute legal, valid and binding
obligations of the Parent Borrower enforceable against the Parent Borrower in accordance with their
terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting
the enforcement of creditors’ rights generally and general equitable principles.



     5.3. No Conflict; Government Consent. Neither the execution and delivery by the
Parent Borrower of the Parent Borrower Credit Documents, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate (i) any law, rule,
regulation, order, writ, judgment, injunction, decree or award binding on the Parent Borrower or
any of its Subsidiaries or (ii) the Parent Borrower’s or any Subsidiary’s articles or certificate
of incorporation (or other comparable



55









 







constituent document) or by-laws (or other comparable
governing document) or (iii) the provisions of any indenture, material instrument or material
agreement to which the Parent Borrower or any of its Subsidiaries is a party or is subject, or by
which it, or its Property, is bound, or conflict with or constitute a default thereunder, or result
in the creation or imposition of any Lien in, of or on the Property of the Parent Borrower or a
Subsidiary pursuant to the terms of any such indenture, material instrument or material agreement.
No order, consent, approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection with the execution,
delivery and performance of, or the legality, validity, binding effect or enforceability of, any of
the Parent Borrower Credit Documents.



     5.4. Financial Statements. The December 31, 2007 audited consolidated financial
statements of the Parent Borrower and its Subsidiaries heretofore delivered to the Lenders were
prepared in accordance with generally accepted accounting principles in effect on the respective
dates such statements were prepared and fairly present the consolidated financial condition and
operations of the Parent Borrower and its Subsidiaries at such dates and the consolidated results
of their operations for the respective periods then ended.



     5.5. Material Adverse Change. Since December 31, 2007, there has been no change in
the business, Property, financial condition or results of operations of the Parent Borrower and its
Subsidiaries which could reasonably be expected to have a Material Adverse Effect (it being
understood and agreed that consummation of the CompAir Acquisition shall not constitute such a
material adverse change).



     5.6. Taxes. The Parent Borrower and its Subsidiaries have filed all United States
federal tax returns and all other material tax returns which are required to be filed and have paid
all taxes due pursuant to said returns or pursuant to any assessment received by the Parent
Borrower or any of its Subsidiaries, except (i) such taxes, if any, as are being contested in good
faith and as to which adequate reserves have been provided, and (ii) as could not reasonably be
expected to have a Material Adverse Effect. As of the Closing Date, the United States income tax
returns of the Parent Borrower and its Subsidiaries have been audited by the Internal Revenue
Service through the fiscal year ended December 31, 2002. No tax liens in an aggregate amount in
excess of $1,000,000 have been filed and, to the knowledge of Parent
Borrower, no claims are being asserted with respect to any such material taxes. The charges,
accruals and reserves on the books of the Parent Borrower and its Subsidiaries in respect of any
taxes or other governmental charges are adequate.



     5.7. Litigation and Contingent Obligations. Except as set forth on Schedule
4 hereto, there is no litigation, arbitration, governmental investigation, proceeding or
inquiry pending or, to the knowledge of any of their officers, threatened against or affecting the
Parent Borrower or any of its Subsidiaries which could reasonably be expected to have a Material
Adverse Effect. Other than any liability incident to any litigation, arbitration or proceedings
which could not reasonably be expected to have a Material Adverse Effect, no Borrower has any
material contingent obligations not provided for or disclosed in the financial statements referred
to in Section 5.4.



     5.8. Subsidiaries. Schedule 5 hereto contains an accurate list as of the
Closing Date of all of the presently existing Subsidiaries of the Parent Borrower, setting forth
their respective jurisdictions of organization and the percentage of their respective capital stock
or other ownership interests owned by the Parent Borrower or other Subsidiaries together with a
calculation, as of the quarter ended immediately prior to the Closing Date, of such Subsidiaries’
total assets as a percentage of consolidated total assets. All of the issued and outstanding
shares of capital stock or other ownership interests of such Subsidiaries



56









 







have been (to the extent
such concepts are relevant with respect to such ownership interests) duly authorized and issued and
are fully paid and non-assessable.



     5.9. ERISA. The Unfunded Liabilities of all Single Employer Plans do not in the
aggregate exceed $25,000,000. Neither the Parent Borrower nor any other member of the Controlled
Group has failed to make a required contribution or payment to any Multiemployer Plan or made a
complete or partial withdrawal from a Multiemployer Plan. Each Plan complies in all material
respects with all applicable requirements of law and regulations, no Reportable Event has occurred
with respect to any Plan, neither the Parent Borrower nor any other members of the Controlled Group
has withdrawn from any Plan or initiated steps to do so, and no steps have been taken to reorganize
or terminate any Plan.



     5.10. Accuracy of Information. All written information, exhibits and reports (other
than any financial projections, any other forward-looking information of a general economic or
industry nature) taken as a whole, furnished by the Parent Borrower or any of its Subsidiaries to
the Agent, the LC Issuer, the Swing Line Lender or to any Lender in connection with the negotiation
of, or compliance with, the Credit Documents did not contain any material misstatement of fact or
omit to state a material fact or any fact necessary to make the statements contained therein not
materially misleading in light of the circumstances under which such information, exhibits and
reports were furnished.



     5.11. Regulation U. Margin stock (as defined in Regulation U) constitutes less than 25% of those assets of the
Parent Borrower and its Subsidiaries which are subject to any limitation on sale, pledge, or other
restriction hereunder.



     5.12. Material Agreements. Neither the Parent Borrower nor any Subsidiary is a party
to any agreement or instrument or subject to any charter or other corporate restriction which could
reasonably be expected to have a Material Adverse Effect. Neither the Parent Borrower nor any
Subsidiary is in default in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any agreement to which it is a party, which default could
reasonably be expected to have a Material Adverse Effect.



     5.13. Compliance With Laws. The Parent Borrower and its Subsidiaries have complied
in all material respects with all applicable statutes, rules, regulations, orders and restrictions
of any domestic or foreign government or any instrumentality or agency thereof, having jurisdiction
over the conduct of their respective businesses or the ownership of their respective Property. As
of the Closing Date, except for matters identified on Schedule 6 hereto, neither the Parent
Borrower nor any Subsidiary has received any notice to the effect that its operations are not in
material compliance with any of the requirements of applicable federal, state and local
environmental, health and safety statutes and regulations or the subject of any federal or state
investigation evaluating whether any remedial action is needed to respond to a release of any toxic
or hazardous waste or substance into the environment, which non-compliance or remedial action could
reasonably be expected to have a Material Adverse Effect.



     5.14. Ownership of Property. On the Closing Date, the Parent Borrower and its
Subsidiaries have good title, free of all Liens other than those permitted by Section 6.18,
to all of the Property and assets reflected in the financial statements referred to in Section
5.4 as owned by it. The Parent Borrower and each of its Subsidiaries owns (or is licensed to
use) all Intellectual Property which is necessary or appropriate in any material respect for the
conduct of its respective business as conducted on the Closing Date, without any material conflict
with the rights of any other Person. Neither the Parent Borrower nor any Subsidiary is aware of
(i) any material existing or threatened infringement or misappropriation of any of its Intellectual
Property by any third party or (ii) any material third party claim that any aspect of the



57









 







business
of the Parent Borrower or any Subsidiary (as conducted on the Closing Date) infringes or will
infringe upon, any Intellectual Property or other property right of any other Person.



     5.15. Labor Matters. There are no labor controversies pending against the Parent
Borrower or any Subsidiary which could reasonably be expected to have a Material Adverse Effect.
The Parent Borrower and each of its Subsidiaries are in substantial compliance in all material
respects with the Fair Labor Standards Act, as amended.



     5.16. Investment Company Act. Neither the Parent Borrower nor any Subsidiary thereof is an “investment company” or a
company “controlled” by an “investment company”, within the meaning of the Investment Company Act
of 1940, as amended.



     5.17. [Reserved]



     5.18. Insurance. The Parent Borrower and its Subsidiaries maintain with financially
sound and reputable insurance companies insurance for property, casualty, business interruption and
liability losses in such amounts and covering such risks as is consistent with sound business
practice.



     5.19. Special Representations and Warranties of each Non-U.S. Subsidiary Borrower.
Each Non-U.S. Subsidiary Borrower which may be a party hereto or which may become a party hereto
after the Closing Date represents and warrants to the Lenders as provided in this Section
5.19 that:



          (a) Existence and Standing. Such Non-U.S. Subsidiary Borrower is a company duly
organized and validly existing and (except to the extent such concept is not applicable to such
entity or such jurisdiction) in good standing under the laws of its jurisdiction of organization
(hereinafter referred to as its “Home Country”) and has all requisite authority to conduct its
business as it is now being conducted except where the failure to have such requisite authority
would not have a Material Adverse Effect.




          (b) Authorization and Validity. Such Non-U.S. Subsidiary Borrower has the requisite
power and authority and legal right to execute and deliver the Non-U.S. Subsidiary Borrower Credit
Documents to which its is a party and to perform its obligations thereunder. The execution and
delivery by such Non-U.S. Subsidiary Borrower of the Non-U.S. Subsidiary Borrower Credit Documents
to which it is a party and the performance by it of its obligations thereunder have been duly
authorized by proper corporate proceedings, and such Non-U.S. Subsidiary Borrower Credit Documents
constitute legal, valid and binding obligations of such Non-U.S. Subsidiary Borrower enforceable
against such Non-U.S. Subsidiary Borrower in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency or similar laws affecting the enforcement
of creditors’ rights generally and general equitable principles.




          (c) No Conflict; Government Consent. Neither the execution and delivery by such
Non-U.S. Subsidiary Borrower of the Non-U.S. Subsidiary Borrower Credit Documents to which it is a
party, nor the consummation by it of the transactions therein contemplated to be consummated by it,
nor compliance by such Non-U.S. Subsidiary Borrower with the provisions thereof will violate any
law, rule, regulation, order, writ, judgment, injunction, decree or award binding on such Non-U.S.
Subsidiary Borrower or any of its Subsidiaries or such Non-U.S. Subsidiary Borrower’s or any of its
Subsidiaries’ articles of association (or other comparable constituent documents) or the provisions
of any indenture, instrument or agreement to which such Non-U.S. Subsidiary Borrower or any of its
Subsidiaries is a party or is subject, or by which it, or its Property, is bound, or conflict with
or constitute a default thereunder, or




58









 




result in the creation or imposition of any Lien in, of or
on the Property of such Non-U.S. Subsidiary Borrower or any of its Subsidiaries pursuant to the
terms of any such indenture, instrument or agreement in any such case which violation, conflict,
default, creation or imposition could reasonably be expected to have a Material Adverse Effect. No
order, consent, approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, any governmental agency is required to authorize,
or is required in connection with the execution, delivery and performance of, or the legality,
validity, binding effect or enforceability of, any of the Non-U.S. Subsidiary Borrower Credit
Documents to which it is a party.




          (d) Filing. To ensure the enforceability or admissibility in evidence of this
Agreement and any promissory notes requested to be issued hereunder by any Non-U.S. Subsidiary
Borrower in its Home Country, it is not necessary that this Agreement or any such promissory notes
or any other document be filed or recorded with any court or other authority in its Home Country or
that any stamp or similar tax be paid to or in respect of this Agreement or any such promissory
notes of such Non-U.S. Subsidiary Borrower. The qualification by any Lender or the Agent for
admission to do business under the laws of its Home Country does not constitute a condition to, and
the failure to so qualify does not affect, the exercise by any Lender or the Agent of any right,
privilege, or remedy afforded to any Lender or the Agent in connection with the Non-U.S. Subsidiary
Borrower Credit Documents to which such Non-U.S. Subsidiary Borrower is a party or the enforcement
of any such right, privilege, or remedy against such Non-U.S. Subsidiary Borrower. The performance
by any Lender or the Agent of any action required or permitted under the Credit Documents will not
(i) violate any law or regulation of such Non-U.S. Subsidiary Borrower’s Home Country or any
political subdivision thereof, (ii) to the knowledge of the Borrowers, result in any tax (other
than any withholding tax for which the Parent Borrower has provided an indemnity in accordance with
the proviso set forth below) or other monetary liability to such party pursuant to the laws of such
Non-U.S. Subsidiary Borrower’s Home Country or political subdivision or taxing authority thereof
or otherwise (provided that, should any such action result in any such tax or other monetary
liability to the Lender or the Agent, the Parent Borrower hereby agrees to indemnify such Lender or
the Agent, as the case may be, against (x) any such tax or other monetary liability and (y) any
increase in any tax or other monetary liability which results from such action by such Lender or
the Agent and, to the extent the Parent Borrower makes such indemnification, the incurrence of such
liability by the Agent or any Lender will not constitute a Default) or (iii) violate any rule or
regulation of any federation or organization or similar entity of which such Non-U.S. Subsidiary
Borrower’s Home Country is a member.




          (e) No Immunity. Neither such Non-U.S. Subsidiary Borrower nor any of its assets is
entitled to immunity from suit, execution, attachment or other legal process. Such Non-U.S.
Subsidiary Borrower’s execution and delivery of the Non-U.S. Subsidiary Borrower Credit Documents
to which it is a party constitute, and the exercise of its rights and performance of and compliance
with its obligations under such Credit Documents will constitute, private and commercial acts done
and performed for private and commercial purposes.




ARTICLE VI: COVENANTS




     During the term of this Agreement from and after the Closing Date, unless the Required Lenders
shall otherwise consent in writing:



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     6.1. Financial Reporting. The Parent Borrower will maintain, for itself and each
Subsidiary, a system of accounting established and administered in accordance with generally
accepted accounting principles, and furnish to the Agent (which shall promptly provide copies to
the Lenders):




	 	(i)	 	Within 90 days after the close of each of its fiscal years, (A) an unqualified
(except for qualifications relating to changes in accounting principles or practices
reflecting changes in generally accepted principles of accounting and required or
approved by the Parent Borrower’s independent certified public accountants) audit
report certified by independent certified public accountants, acceptable to the
Lenders, prepared in accordance with Agreement Accounting Principles on a consolidated
and consolidating basis (consolidating statements need not be certified by such
accountants) for itself and the Subsidiaries, including balance sheets as of the end of
such period, related profit and loss and reconciliation of surplus statements, and a
statement of cash flows and (B) (1) any letter prepared by said accountants regarding
internal controls and addressed to the board of directors of the Parent Borrower and
(2) a certificate of said accountants that, in the course of their examination
necessary for their certification of the foregoing, they have obtained no knowledge of
any Default or Unmatured Default, or if, in the opinion of such accountants, any
Default or Unmatured Default shall exist, stating the nature and status thereof;
provided that (so long as such items are readily available for public viewing
on the Commission’s Electronic Data Gathering and Retrieval System) the delivery within
the time period specified above of the Parent Borrower’s Form 10-K for such fiscal year
filed with the Commission shall be deemed to satisfy the requirements of sub-clause (A)
of this Section 6.1(i).
	 
	 	(ii)	 	Within 45 days after the close of the first three quarterly periods of each of
its fiscal years, for itself and the Subsidiaries, consolidated and consolidating
unaudited balance sheets as at the close of each such period and consolidated and
consolidating profit and loss and reconciliation of surplus statements and a statement
of cash flows for the period from the beginning of such fiscal year to the end of such
quarter, all certified by its chief financial officer as being prepared, to the best of
his or her knowledge in accordance with Agreement Accounting Principles, consistently
applied, subject to normal year-end audit adjustments; provided that (so long
as such items are readily available for public viewing on the Commission’s Electronic
Data Gathering and Retrieval System) the delivery within the time period specified
above of the Parent Borrower’s Form 10-Q for such fiscal quarter filed with the
Commission shall be deemed to satisfy the requirements of this Section 6.1(ii).
	 
	 	(iii)	 	Together with the financial statements required hereunder, a compliance
certificate in substantially the form of Exhibit F hereto signed by its chief
financial officer showing the calculations necessary to determine compliance with
Sections 6.21 and 6.22 of this Agreement and stating that no Default or
Unmatured Default exists, or if any Default or Unmatured Default exists, stating the
nature and status thereof.
	 
	 	(iv)	 	As soon as possible and in any event not later than the last Business Day in
February of each fiscal year commencing with the fiscal year beginning January 1, 2009,
a copy of the plan and forecast (including a projected balance sheet, income statement
and statement of cash flow) of the Parent Borrower and its Subsidiaries for the
upcoming fiscal year prepared in such detail as shall be reasonably satisfactory to the
Agent.






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	 	(v)	 	[Reserved]
	 
	 	(vi)	 	As soon as possible and in any event within 10 days after receipt by the Parent
Borrower, a copy of (a) any notice or claim to the effect that the Parent Borrower or
any of its Subsidiaries is or may be liable to any Person as a result of the release by
the Parent Borrower, any of its Subsidiaries, or any other Person of any toxic or
hazardous waste or substance into the environment, and (b) any notice alleging any
violation of any federal, state or local environmental, health or safety law or
regulation by the Parent Borrower or any of its Subsidiaries, which, in either case,
could reasonably be expected to have a Material Adverse Effect.
	 
	 	(vii)	 	Promptly upon the furnishing thereof to the shareholders of the Parent
Borrower, copies of all financial statements, reports and proxy statements so
furnished.
	 
	 	(viii)	 	Promptly upon the filing thereof, copies of all registration statements and annual,
quarterly, monthly or other regular reports which the Parent Borrower or any of its
Subsidiaries files with the Commission (other than routine filings relating solely to
employee benefit plans and filings on Forms 3, 4 or 5 regarding insider trading
activities). In the event the Parent Borrower is no longer required to file reports
with the Commission, the Parent Borrower need not furnish such reports to the Agent,
but nonetheless shall provide the Agent the financial statements previously contained
in such reports.
	 
	 	(ix)	 	Promptly after the execution thereof, copies of all material amendments to any
of the Receivables Purchase Documents.
	 
	 	(x)	 	Such other information (including non-financial information) as the Agent or
any Lender may from time to time reasonably request.





     6.2. Use of Proceeds. The Parent Borrower will, and will cause each Subsidiary to,
use the proceeds of the Advances, Swing Line Loans and Facility LCs to repay certain existing
Indebtedness, for working capital purposes, for general corporate purposes, including, without
limitation, for the CompAir Acquisition (in the case of the Term Loans) and other Acquisitions
permitted by Section 6.15 hereof, and to repay outstanding Advances and Reimbursement
Obligations. After it has become a party hereto, each Non-U.S. Subsidiary Borrower will use the
proceeds of the Revolving Credit Advances and Facility LCs for working capital and general
corporate purposes, including, without limitation, for Acquisitions permitted by Section
6.15 hereof, and to repay its outstanding Advances and Reimbursement Obligations. The Parent
Borrower and each Non-U.S. Subsidiary Borrower will not, nor will they permit any Subsidiary to,
use any of the proceeds of the Advances either (i) to purchase or carry any “margin stock” (as
defined in Regulation U) or (ii) to make any other Acquisition (except as specifically permitted by
Section 6.15). Notwithstanding anything herein to the contrary, Facility LCs may be
applied for by the Parent Borrower hereunder for the benefit of the Parent Borrower’s Subsidiaries.



     6.3. Notice of Default. After knowledge thereof shall have come to the attention of
an Authorized Officer of any Borrower, such Borrower will give prompt notice in writing to the
Agent, and the Agent shall promptly notify each other Lender, of the occurrence of any Default or
Unmatured Default and of any other development, financial or otherwise, which could reasonably be
expected to have a Material Adverse Effect.



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     6.4. Conduct of Business. The Parent Borrower will, and will cause each Subsidiary
to, carry on and conduct its business in substantially the same manner and in substantially the
same fields of enterprise as conducted on the Closing Date, or as conducted on the date of its
formation, in the case of any Non-U.S. Subsidiary Borrower or other Subsidiary that may be formed
after the Closing Date, and to do all things necessary to remain duly incorporated, validly
existing and (except to the extent such concept is not applicable to such entity or such
jurisdiction) in good standing as a domestic corporation in its jurisdiction of incorporation and
maintain all requisite authority to conduct its business in each jurisdiction in which its business
is conducted; provided that the Parent Borrower and its Subsidiaries may (i) consummate the Tax
Restructuring, (ii) dissolve any inactive or dormant Subsidiaries with de minimis or immaterial
assets, and (iii) consummate transactions permitted by Section 6.13.



     6.5. Taxes. The Parent Borrower will, and will cause each Subsidiary to, pay when
due all taxes, assessments and governmental charges and levies upon it or its income, profits or
Property, except (i) those which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves have been set aside and (ii) where the failure to so pay,
discharge or otherwise satisfy such taxes could not reasonably be expected to have a Material
Adverse Effect.



     6.6. Insurance. The Parent Borrower will, and will cause each Subsidiary to,
maintain with financially sound and reputable insurance companies insurance for property, casualty,
business interruption and liability losses in such amounts and covering such risks as is consistent
with sound business practice, and the Parent Borrower will furnish to Agent, upon request of the
Agent or any Lender, a certificate setting forth in summary form, the nature and extent of the
insurance maintained pursuant to this provision and such other information as shall be reasonably
requested. The Parent Borrower will, within ten (10) Business Days of its receipt of notice of
termination or cancellation of any products liability or other liability insurance policy insuring
the Parent Borrower or any of its Subsidiaries, give written notice thereof to the Lenders if such
termination or cancellation could reasonably be expected to have a Material Adverse Effect.



     6.7. Compliance with Laws. The Parent Borrower will, and will cause each Subsidiary
to, comply with all laws, rules, regulations, orders, writs, judgments, injunctions, decrees or
awards to which it may be subject including, without limitation, all applicable federal, state and
local environmental, health and safety statutes and regulations; provided, however,
neither the Parent Borrower nor any Subsidiary shall be required to comply with any such laws,
rules, regulations, orders, writs, judgments, injunctions, decrees or awards if its failure to
comply therewith could not be reasonably expected to have a Material Adverse Effect.



     6.8. Maintenance of Property and Books and Records. The Parent Borrower will, and
will cause each Subsidiary to, do all things reasonably necessary to maintain, preserve, protect
and keep its tangible personal and real Property in good repair, working order and condition, and
make all necessary and proper repairs, renewals and replacements so that its business carried on in
connection therewith may be properly conducted at all times. The Parent Borrower will, and will
cause each Subsidiary to, do all things reasonably necessary to maintain, preserve and protect its
material Intellectual Property including, without limitation, perform each of its respective
obligations under any and all license agreements and other contracts and agreements evidencing or
relating to such Intellectual Property, using the same in interstate or foreign commerce, properly
marking such Intellectual Property and maintaining all necessary and appropriate governmental
registrations (both domestic and foreign). The Parent Borrower will keep and maintain, and cause
each of its Subsidiaries to keep and maintain, in all material respects, proper books of record and
account in which entries in conformity with Agreement Accounting Principles (in the case of the
Parent Borrower and the Domestic Subsidiaries) and generally accepted accounting principles



62









 







in the applicable jurisdiction (in the case of the Foreign Subsidiaries) shall be made of all
dealings and transactions in relation to their respective businesses and activities.



     6.9. Inspection. The Parent Borrower will, and will cause each Subsidiary to, permit
the Lenders, at their cost, by their respective representatives and agent, during normal business
hours, to inspect any of the Property, corporate books and financial records of the Parent Borrower
and each Subsidiary, to examine and make copies of the books of accounts and other financial
records of the Parent Borrower and each Subsidiary (provided, that no Lender may make any
such inspection or examination more often than once in any calendar year unless a Default is in
existence (in which case such inspections may occur as often and at such times as such Lender
reasonably determines) and any such inspection made when no Default is in existence shall be at the
expense of such Lender), and to discuss the affairs, finances and accounts of the Parent Borrower
and each Subsidiary with, and to be advised as to the same by, their respective officers at such
reasonable times and intervals as the Lenders may reasonably designate.



     6.10. Subsidiaries. The Parent Borrower will cause each Person (other than a SPV)
that becomes a direct or indirect Subsidiary of the Parent Borrower after the Closing Date (whether
as the result of an Acquisition, creation, or otherwise) to execute and deliver a Subsidiary
Guaranty to and in favor of the Agent, the Swing Line Lender, the LC Issuer, the Lenders and the
other Holders of Secured Obligations (together with an opinion of counsel, corporate resolutions
and such other corporate documentation as the Agent may reasonably request, all in form and
substance satisfactory to the Agent), in each case within 30 days after becoming a direct or
indirect Subsidiary of the Parent Borrower. Notwithstanding the foregoing, in the case of a
Foreign Subsidiary, or a Domestic Subsidiary owned by a Foreign Subsidiary, no such Subsidiary
shall be required to give, execute and deliver a Subsidiary Guaranty if the delivery of such
Subsidiary Guaranty would either (i) cause the undistributed earnings of any such Foreign
Subsidiary, or Domestic Subsidiary owned by a Foreign Subsidiary, to be treated as a deemed
dividend to the Parent Borrower for federal income tax purposes (a “Deemed Dividend Problem”) or
(ii) be limited on account of legal or financial limitations imposed by the jurisdiction of
organization of such Subsidiary (or the parent of such Subsidiary) or other relevant jurisdictions
having authority over such Subsidiary (a “Financial Assistance Problem”), in which event the terms
of Section 6.16 shall be applicable.



     6.11. Dividends. The Parent Borrower will not, nor will it permit any Subsidiary to,
declare or pay any dividends on its capital stock (other than dividends payable in its own capital
stock) or redeem, repurchase or otherwise acquire or retire any of its capital stock at any time
outstanding, except that:




	 	(i)	 	Any Subsidiary may declare and pay dividends to the Parent Borrower or to a
Wholly-Owned Subsidiary of the Parent Borrower.
	 
	 	(ii)	 	Any Subsidiary may declare and pay dividends to a Subsidiary other than a
Wholly-Owned Subsidiary of the Parent Borrower so long as at the time of and upon
giving effect to each such dividend (a) the Parent Borrower shall be in compliance with
Section 6.22 and (b) no other Default or Unmatured Default shall exist.
	 
	 	(iii)	 	The Parent Borrower may declare or pay any dividends on its capital stock or
redeem, repurchase or otherwise acquire or retire any of its capital stock at any time
outstanding so long as at the time of and upon giving effect (including pro forma
effect) to each such dividend, repurchase, acquisition or retirement, (a) no Default or
Unmatured Default shall exist and (b) so long as the Leverage Ratio (calculated as of
the most recently completed fiscal quarter and upon giving effect (including pro forma
effect) thereto) exceeds 2.0 to




63









 






	 	 	 	1.0, the aggregate amount of such dividends, redemptions, repurchases, acquisitions
and retirements during any fiscal year does not exceed the Maximum Amount. As used
herein, the “Maximum Amount” means (1) $120,000,000 if the Leverage Ratio
(so calculated) is greater than 2.0 to 1.0 but less than 3.0 to 1.0, (2) $60,000,000
if the Leverage Ratio (so calculated) is equal to or greater than 3.0 to 1.0 but
less than 3.5 to 1.0 and (3) $10,000,000 if the Leverage Ratio (so calculated) is
equal to or greater than 3.5 to 1.0.






	 	(iv)	 	Any Subsidiary may declare and pay dividends and redeem, repurchase or
otherwise acquire or retire any of its capital stock under the Tax Restructuring.





     6.12. Indebtedness. The Parent Borrower will not, nor will it permit any Subsidiary
to, create, incur or suffer to exist any Indebtedness, except:




	 	(i)	 	The Loans and other Obligations.
	 
	 	(ii)	 	Indebtedness existing on the Closing Date and described in Schedule 7
hereto.
	 
	 	(iii)	 	Contingent Obligations permitted by Section 6.17.
	 
	 	(iv)	 	Hedging Obligations entered into in the ordinary course of business as bona
fide hedges against interest rate or commodity price or currency fluctuations and not
for speculative purposes.
	 
	 	(v)	 	Indebtedness of one or more Subsidiaries owing to one or more other
Subsidiaries, but only to the extent permitted by clauses (vi), (x) and
(xii) of Section 6.15.
	 
	 	(vi)	 	Indebtedness incurred in connection with the Receivables Purchase Documents,
provided, that Receivables Facility Attributed Indebtedness incurred in
connection therewith does not exceed $100,000,000 in the aggregate at any time.
	 
	 	(vii)	 	Indebtedness incurred by Foreign Subsidiaries of the Parent Borrower
(excluding Obligations incurred hereunder) in an amount not to exceed the Equivalent
Amount of $60,000,000 in the aggregate at any time.
	 
	 	(viii)	 	Indebtedness under the Senior Subordinated Notes.
	 
	 	(ix)	 	Intercompany Indebtedness incurred as a result of the Tax Restructuring.
	 
	 	(x)	 	Unsecured Indebtedness of the Parent Borrower and its Subsidiaries so long as
(1) such Indebtedness is subordinated to the Obligations on terms and conditions
reasonably satisfactory to the Agent and such Indebtedness matures no earlier than six
(6) months after the Maturity Date (or, if later, the maturity date applicable to any
incremental term loans) and (2) at the time of incurring such Indebtedness and after
giving effect (including pro forma effect) thereto, the Parent Borrower is in
compliance with Section 6.22.
	 
	 	(xi)	 	Indebtedness of the Parent Borrower or any Subsidiary incurred to finance the
acquisition, construction or improvement of any fixed or capital assets, including




64









 






	 	 	 	Capitalized Lease Obligations and any Indebtedness assumed in connection with the
acquisition of any such assets or secured by a Lien on any such assets prior to the
acquisition thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof;
provided that (1) such Indebtedness is incurred prior to or within 90 days
after such acquisition or the completion of such construction or improvement and (2)
the aggregate principal amount of Indebtedness permitted by this clause (xi) shall
not exceed $35,000,000 at any time outstanding.






	 	(xii)	 	Additional unsecured Indebtedness of the Parent Borrower and its Subsidiaries
in an aggregate principal amount at any one time outstanding not to exceed $75,000,000.




In addition to the foregoing, the Parent Borrower shall not, and shall not permit any Subsidiary
to, prepay the Indebtedness permitted under the foregoing clauses (viii) and (x) so long as the
Leverage Ratio (calculated at the time of such prepayment and after giving pro forma effect
thereto) exceeds 2.0 to 1.0; provided that the foregoing shall not prohibit (1) payments of
regularly scheduled interest and principal payments in respect of such Indebtedness and (2) a
replacement or a refinancing of the Indebtedness under the Senior Subordinated Notes with
Indebtedness under replacement senior subordinated notes of the Parent Borrower that matures no
earlier than six (6) months after the Maturity Date.




     6.13. Merger. The Parent Borrower will not, nor will it permit any Subsidiary to,
merge or consolidate with any other Person, except that:




	 	(i)	 	A Subsidiary may merge with a Borrower (so long as such Borrower is the
surviving corporation).
	 
	 	(ii)	 	A Subsidiary may merge with a Wholly-Owned Subsidiary (so long as a
Wholly-Owned Subsidiary is the surviving corporation).
	 
	 	(iii)	 	The Parent Borrower or a Subsidiary may merge with any other Person subject to
the terms and conditions of clause (xi) of Section 6.15.
	 
	 	(iv)	 	Mergers and consolidations may be made in connection with the Tax
Restructuring.





     6.14. Sale of Assets. The Parent Borrower will not, nor will it permit any
Subsidiary to, lease, sell or otherwise dispose of its Property, to any other Person except for




	 	(i)	 	sales or leases of inventory in the ordinary course of business,
	 
	 	(ii)	 	the sale, discount, or transfer of delinquent accounts receivable in the
ordinary course of business for purposes of collection only,
	 
	 	(iii)	 	sales, leases or other dispositions of immaterial assets for consideration not
less than fair market value,
	 
	 	(iv)	 	sales, leases or other dispositions of assets that are obsolete or have
negligible fair market value;




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	 	(v)	 	sales of equipment for a fair and adequate consideration (but if replacement
equipment is necessary for the proper operation of the business of the seller, the
seller must promptly replace the sold equipment);
	 
	 	(vi)	 	any transfer of an interest in Receivables, Receivables and Related Security,
accounts or notes receivable on a limited recourse basis under the Receivables Purchase
Documents, provided that such transfer qualifies as a legal sale and as a sale
under Agreement Accounting Principles and that the amount of Receivables Facility
Attributed Indebtedness does not exceed $100,000,000 at any one time outstanding;
	 
	 	(vii)	 	transactions contemplated in connection with the Tax Restructuring; and
	 
	 	(viii)	 	the transfer of Property from (a) one Domestic or Foreign Subsidiary to the Parent
Borrower or to another Wholly-Owned Subsidiary which is a Domestic Subsidiary or (b)
one Foreign Subsidiary to another Wholly-Owned Subsidiary which is a Foreign
Subsidiary;






provided, however, that the aggregate amount of Property of the Parent
Borrower and its Subsidiaries leased, sold or disposed of pursuant to any of clauses
(ii) through (vi) of this Section (excluding any equipment which has been
promptly replaced) during the twelve-month period ending with the month in which any such
lease, sale or other disposition occurs shall not constitute a Substantial Portion of the
Property of the Parent Borrower and its Subsidiaries.



     6.15. Investments and Acquisitions. The Parent Borrower will not, nor will it permit
any Subsidiary to, make or suffer to exist any Investments (including without limitation, loans and
advances to, and other Investments in, Subsidiaries), or commitments therefor, or to create any
Subsidiary or to become or remain a partner in any partnership or joint venture, or to make any
Acquisition of any Person, except:




	 	(i)	 	Short-term obligations (i.e., maturing within one year) of, or fully guaranteed
by, the United States of America.
	 
	 	(ii)	 	Commercial paper rated A-l or better by Standard and Poor’s Ratings Group, a
division of McGraw Hill Corporation or P-l or better by Moody’s Investors Service, Inc.
	 
	 	(iii)	 	Certificates of deposit issued by and time deposits with commercial banks
(whether domestic or foreign) having capital and surplus in excess of $100,000,000.
	 
	 	(iv)	 	Money-market funds or money-market mutual funds which (a) seek to maintain a
constant net asset value, (b) maintain fund assets under management having an aggregate
market value of at least $500,000,000 and (c) invest primarily in Investments referred
to in clauses (i) through (iii) above.
	 
	 	(v)	 	Demand deposit accounts maintained in the ordinary course of business.
	 
	 	(vi)	 	Investments in existence on the Closing Date and described in Schedule
8 hereto.
	 
	 	(vii)	 	Current trade and customer accounts receivable that are for goods furnished or
services rendered in the ordinary course of business and that are payable on terms
customary in




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	 	 	 	the trade, including the existing floor plan program offered to distributors of the
Borrowers’ products.






	 	(viii)	 	Investments evidenced by promissory notes executed by customers of the Parent
Borrower or a Subsidiary and payable to the Parent Borrower or such Subsidiary in an
aggregate principal amount not to exceed $1,000,000 at any one time outstanding.
	 
	 	(ix)	 	Investments in the SPVs (a) required in connection with the Receivables
Purchase Documents and (b) resulting from the transfers permitted by Section 6.14
(vi).
	 
	 	(x)	 	Loans, capital contributions and other Investments made subsequent to the
Closing Date, whether in existing Subsidiaries, new Subsidiaries or Persons which are
not Subsidiaries of the Parent Borrower; provided, that (a) the aggregate
outstanding amount of such Investments by the Parent Borrower or an Obligor Subsidiary
in or to Persons which are not Obligor Subsidiaries either (I) does not exceed
$100,000,000 (exclusive of the CompAir Acquisition) or (II) is made in connection with
the Tax Restructuring, and (b) the Parent Borrower shall have complied with Section
6.10 in respect of each Subsidiary not identified on Schedule 5 hereto.
	 
	 	(xi)	 	Acquisitions of other Persons made by the Parent Borrower or a Subsidiary
where:






	 	(a)	 	upon giving effect to each such Acquisition (1) the Person so
acquired by the Parent Borrower or such Subsidiary shall have either been
merged into the Parent Borrower or such Subsidiary (with the Parent Borrower or
such Subsidiary as the surviving entity) or such Person shall have become a
Wholly-Owned Subsidiary of the Parent Borrower (and the Parent Borrower shall
have complied with Section 6.10 in respect of such Subsidiary) and (2)
no Default or Unmatured Default exists or would exist after giving effect to
the proposed Acquisition; and
	 
	 	(b)	 	prior to the date of such Acquisition, such Acquisition shall
have been approved by the board of directors and, if applicable, the
shareholders of the Person whose stock or assets are being acquired in
connection with such Acquisition and no claim or challenge has been asserted or
threatened by any shareholder or director of such Person which could reasonably
be expected to have a material adverse effect on such Acquisition or a Material
Adverse Effect; and
	 
	 	(c)	 	if the aggregate consideration to be paid by the Parent
Borrower and its Subsidiaries is greater than $50,000,000, then the Parent
Borrower shall have supplied the Lenders, at least 10 days prior to any such
proposed Acquisition, with financial statements for the Person to be acquired
for the most recently available twelve month period and pro forma financial
statements for such Person and the Parent Borrower on a consolidated basis, in
a manner acceptable to the Agent, which shall demonstrate in the reasonable
judgment of the Agent that, if such Acquisition were to be consummated, the
Leverage Ratio would not exceed (i) 3.50 to 1.0 for the four-quarter periods
ending on or before September 30, 2009 and (ii) 3.25 to 1.0 for the
four-quarter periods ending at the end of each fiscal quarter thereafter (it
being understood and agreed that if such historic and pro forma financial
statements demonstrate, in the reasonable judgment of the




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	 	 	 	Agent, that the Leverage Ratio would exceed these limits, the Required
Lenders’ consent shall be required for consummation of the proposed
Acquisition).






	 	(xii)	 	Loans, capital contributions and other Investments among the Parent Borrower,
the Non-U.S. Subsidiary Borrowers and the Obligor Subsidiaries.
	 
	 	(xiii)	 	The CompAir Acquisition.
	 
	 	(xiv)	 	Stock or other securities issued by customers of the Parent Borrower or a
Subsidiary to the Parent Borrower or such Subsidiary pursuant to plans of
reorganization in bankruptcy cases or negotiated agreements with respect to settlement
of such customers’ accounts.




For the purposes of this Section 6.15, Investments and Acquisitions shall be valued at
their initial principal amount, or cost, as the case may be, without giving effect to any interest
or dividends paid thereon or any appreciation or depreciation in the market value thereof;
provided, however, that Investments consisting of loans and advances shall be valued at the
principal amount thereof then remaining unpaid.




     6.16. Guaranty or Pledge Documentation for New Subsidiaries. The Parent Borrower
will not, nor will it permit any consolidated Subsidiary to, create or acquire a Subsidiary (a “New
Subsidiary”) other than in connection with an Acquisition permitted hereunder or pursuant to any
transaction that is permitted by or not otherwise prohibited by this Agreement; provided that:




	 	(i)	 	Upon the creation or acquisition of each New Subsidiary (other than a SPV), the
Parent Borrower shall, and shall cause each such New Subsidiary to, comply with
Section 6.10;
	 
	 	(ii)	 	Upon the creation or acquisition of each New Subsidiary which is a Material
Domestic Subsidiary or a Material Foreign Subsidiary (other than a SPV), the Parent
Borrower shall or shall cause its applicable Domestic Subsidiary which is the parent of
such Material Domestic Subsidiary or Material Foreign Subsidiary to promptly (but in
any event within 45 days (in the case of the pledge of equity in a Material Domestic
Subsidiary) and 75 days (in the case of the pledge of equity in a Material Foreign
Subsidiary) following the creation or acquisition thereof, subject, in the case of a
Non-U.S. Subsidiary Borrower, to the conditions set forth in Section 4.2) to
execute a Pledge Agreement with respect to 100% of the capital stock and other equity
interests of such Material Domestic Subsidiary and the Applicable Pledge Percentage of
the voting capital stock and other equity interests of such Material Foreign
Subsidiary; and
	 
	 	(iii)	 	In case of (i) and (ii), the Parent Borrower shall deliver appropriate
corporate resolutions, opinions and other documentation in form and substance
reasonably satisfactory to the Agent in connection therewith.




In addition to the foregoing provisions, if any Subsidiary becomes a Material Domestic Subsidiary
or a Material Foreign Subsidiary (other than a SPV) (whether through investment, add-on
acquisitions, growth or otherwise), the Parent Borrower shall or shall cause its applicable
Domestic Subsidiary which is the parent of such Material Domestic Subsidiary or Material Foreign
Subsidiary to promptly (but in any event within 45 days (in the case of the pledge of equity in a
Material Domestic Subsidiary) or 75 days (in the case of the pledge of equity in a Material Foreign
Subsidiary) following the end of the fiscal quarter during which such Subsidiary becomes a Material
Domestic Subsidiary or a Material Foreign Subsidiary)


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execute a Pledge Agreement with respect to 100% (in the case of a Material Domestic Subsidiary) or
the Applicable Pledge Percentage (in the case of a Material Foreign Subsidiary) of the voting
capital stock and other equity interests of such Subsidiary; and shall deliver appropriate
corporate resolutions, opinions and other documentation in form and substance satisfactory to the
Agent in connection therewith; provided, however, that no Pledge Agreement in
respect of a Material Foreign Subsidiary shall be required to be delivered hereunder (x) to the
extent such Pledge Agreement would cause a Deemed Dividend Problem or a Financial Assistance
Problem and (y) until the date which is seventy-five (75) days after the Closing Date (or such
later date as the Agent may agree to in the exercise of its reasonable discretion; it being
understood and agreed that the failure to deliver such Pledge Agreements by such date or such later
date shall constitute a Default under Section 7.3).




     6.17. Contingent Obligations and Off Balance Sheet Liabilities. The Parent Borrower
will not, nor will it permit any Subsidiary to, make or suffer to exist any Contingent Obligation
(including, without limitation, any Contingent Obligation with respect to the obligations of a
Subsidiary) or Off Balance Sheet Liabilities, except




	 	(i)	 	By endorsement of instruments for deposit or collection in the ordinary course
of business,
	 
	 	(ii)	 	Facility LCs issued hereunder,
	 
	 	(iii)	 	The Parent Guaranty and the Subsidiary Guaranties,
	 
	 	(iv)	 	Litigation indemnities in favor of Cooper existing on the Closing Date,
	 
	 	(v)	 	Contingent Obligations constituting guarantees by the Parent Borrower or any
Subsidiary with respect to the obligations of any Subsidiary or other Person in which
any Borrower has a direct or indirect Investment, provided that the aggregate amount of
all such Contingent Obligations, when added to the aggregate amount of all outstanding
Investments permitted by clause (x) of Section 6.15, shall not at any time
exceed $150,000,000;
	 
	 	(vi)	 	Contingent Obligations of any Obligor Subsidiary which is a party to a
Subsidiary Guaranty consisting of a guaranty by such Obligor Subsidiary of the
Indebtedness evidenced by the Senior Subordinated Notes;
	 
	 	(vii)	 	Off Balance Sheet Liabilities which are included in the definition of
Consolidated Total Debt provided the Parent Borrower is in compliance with the
financial covenants of this Agreement;
	 
	 	(viii)	 	Contingent Obligations of the Parent Borrower or any of its Subsidiaries arising
under the Receivables Purchase Documents;
	 
	 	(ix)	 	Contingent Obligations of the Parent Borrower or any of its Subsidiaries
consisting of a guaranty of any Hedging Obligations of the Parent Borrower or its
Subsidiaries owing to any Lender or Affiliate of a Lender it its separate capacity as
the hedge counterparty or provider thereunder, but only to the extent such Hedging
Obligations are permitted under Section 6.12(iv),




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	 	(x)	 	Contingent Obligations under letters of credit identified in Schedule 7
hereto,
	 
	 	(xi)	 	Contingent Obligations of any Subsidiary consisting of guarantees in respect of
the obligations of other Subsidiaries under multi-employer pension plans;
	 
	 	(xii)	 	Contingent Obligations of any Subsidiary consisting of guarantees in respect
of notional pooling arrangements;
	 
	 	(xiii)	 	Contingent Obligations constituting customary guarantees to a seller under a purchase
agreement or merger agreement in connection with an Acquisition permitted hereunder;
	 
	 	(xiv)	 	Contingent Obligations of the Parent Borrower and of any Obligor Subsidiary
which is a party to a Subsidiary Guaranty consisting of a guaranty by such Obligor
Subsidiary of the Existing Indebtedness; provided that such Contingent
Obligations shall be terminated on the Revolving Loan Funding Date; and
	 
	 	(xv)	 	Additional Contingent Obligations in the aggregate amount not to exceed
$125,000,000 at any one time outstanding consisting of Letters of Credit (excluding all
Facility LCs), surety bonds and bank guarantees.





     6.18. Liens. The Parent Borrower will not, nor will it permit any Subsidiary to,
create, incur, or suffer to exist any Lien in, of or on the Property of the Parent Borrower or any
of its Subsidiaries, except:




	 	(i)	 	Liens for taxes, assessments or governmental charges or levies on its Property
if the same shall not at the time be delinquent or thereafter can be paid without
penalty, or are being contested in good faith and by appropriate proceedings and for
which adequate reserves in accordance with generally accepted principles of accounting
shall have been set aside on its books.
	 
	 	(ii)	 	Liens imposed by law, such as carriers’, warehousemen’s and mechanics’ liens
and other similar liens arising in the ordinary course of business which secure payment
of obligations not more than 60 days past due or which are being contested in good
faith by appropriate proceedings and for which adequate reserves shall have been set
aside on its books.
	 
	 	(iii)	 	Liens arising out of pledges or deposits under worker’s compensation laws,
unemployment insurance, old age pensions, or other social security or retirement
benefits, or similar legislation.
	 
	 	(iv)	 	Utility easements, building restrictions and such other encumbrances or charges
against real property as are of a nature generally existing with respect to properties
of a similar character and which do not in any material way affect the marketability of
the same or interfere with the use thereof in the business of the Parent Borrower or
the Subsidiaries.
	 
	 	(v)	 	Good faith deposits incurred in the ordinary course of business to secure
public or statutory obligations, to secure or in lieu of surety bonds, or in connection
with bids or contracts (including, without limitation, the purchase or lease of real
estate).




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	 	(vi)	 	Liens securing judgments or orders for the payment of money, or surety or
appeal bonds with respect to any such judgment or order, in an aggregate amount not
exceeding $5,000,000, so long as no Default exists with respect thereto under
Section 7.9.
	 
	 	(vii)	 	The interest of a lessor under any conditional sale or Capitalized Lease to
the Parent Borrower or any Subsidiary so long as the related Indebtedness is permitted
by Section 6.12
	 
	 	(viii)	 	Any Lien on any asset securing Indebtedness permitted by Section 6.12(xi)
which is incurred or assumed for the purpose of financing all or any part of the cost
of acquiring any asset, provided that such Lien attaches to such asset concurrently
with or within 90 days after the acquisition thereof.
	 
	 	(ix)	 	Any Lien existing on any asset of any Person at the time such Person becomes a
Subsidiary or is merged or consolidated with or into the Parent Borrower or a
Subsidiary, provided that the Indebtedness secured by each such Lien is permitted by
Section 6.12.
	 
	 	(x)	 	Liens existing on the Closing Date and described in Schedule 9 hereto
which secure Indebtedness in existence on the Closing Date.
	 
	 	(xi)	 	Liens arising out of any renewal, extension or refinancing of any Indebtedness
secured by any Lien permitted by any of clauses (vii), (viii),
(ix) or (x) above, so long as the principal amount of such Indebtedness
in not increased thereby and such Indebtedness is not secured by any additional
Property.
	 
	 	(xii)	 	Liens in favor of the United States of America or any state thereof, or any
department, agency or instrumentality or political subdivision thereof, in favor of any
other country or political subdivision, to secure partial, progress, advance or other
payments pursuant to any contract or statute or to secure any Indebtedness permitted by
Section 6.12 and incurred or guaranteed for the purpose of financing or
refinancing all or any part of the purchase price of Property subject to such Liens, or
the cost of constructing or improving the Property subject to such Liens, including,
without limitation, Liens incurred in connection with pollution control, industrial
revenue or similar tax-advantaged financings; provided the aggregate amount of
Indebtedness secured under this clause (xii) shall not exceed $20,000,000.
	 
	 	(xiii)	 	Liens in favor of the Agent granted pursuant to any Collateral Document.
	 
	 	(xiv)	 	Liens arising under the Receivables Purchase Documents, so long as the related
Indebtedness is permitted by Section 6.12.





     6.19. Rentals. The Parent Borrower will not, nor will it permit any Subsidiary to,
create, incur or suffer to exist obligations for Rentals net of any income received from sublease
arrangements in excess of $50,000,000 during any one fiscal year on a non-cumulative basis in the
aggregate for the Parent Borrower and its Subsidiaries.



     6.20. Affiliates. The Parent Borrower will not, and will not permit any Subsidiary
to, enter into any transaction (including, without limitation, the purchase or sale of any Property
or service) with, or make any payment or transfer to, any Affiliate except (i) Permitted
Receivables Transfers, (ii)



71









 







transactions in the ordinary course of business and pursuant to the reasonable requirements of
the Parent Borrower’s or such Subsidiary’s business and upon fair and reasonable terms no less
favorable to the Parent Borrower or such Subsidiary than the Parent Borrower or such Subsidiary
would obtain in a comparable arms-length transaction, (iii) in connection with the Tax
Restructuring and (iv) pursuant to transactions expressly permitted elsewhere under this Agreement.



     6.21. Minimum Consolidated Interest Coverage Ratio. The Parent Borrower will not, as
of the last day of any fiscal quarter of the Parent Borrower, commencing with the first fiscal
quarter-end after the Closing Date, permit the Consolidated Interest Coverage Ratio for the period
of four fiscal quarters ending on such day, to be less than 3.00 to 1.0.



     6.22. Maximum Leverage Ratio. The Parent Borrower will not, as of the last day of
any fiscal quarter of the Parent Borrower, commencing with the first fiscal quarter-end after the
Closing Date, permit the Leverage Ratio for the period of four consecutive fiscal quarters ending
on such day, to be greater than (i) 3.75 to 1.0 for the four-quarter periods ending on or before
September 30, 2009 and (ii) 3.50 to 1.0 at the end of each fiscal quarter thereafter.



     6.23. Capital Expenditures. The Parent Borrower will not, nor will it permit any
Subsidiary to, expend, or be committed to expend, during any period of twelve consecutive months on
a non-cumulative basis an amount for Consolidated Capital Expenditures in the aggregate for the
Parent Borrower and its Subsidiaries which exceeds five percent (5%) of consolidated revenues for
such twelve-month period, calculated in each case as of the end of each fiscal-quarter for the
twelve months then ended



     6.24. Pledge Agreements. The Parent Borrower shall not at any time permit the
aggregate assets of all of the Parent Borrower’s Subsidiaries in connection with which the Agent
has not received a pledge of the required equity pursuant to a Pledge Agreement in accordance with
Section 6.16 to exceed fifteen percent (15%) of consolidated total assets of the Parent
Borrower and its Subsidiaries.



ARTICLE VII: DEFAULTS




     The occurrence of any one or more of the following events shall constitute a Default:



     7.1 Any representation or warranty made (or deemed made pursuant to Section 4.3 of
this Agreement, any relevant provision of any Pledge Agreement or any relevant provision of any
Subsidiary Guaranty) by the Parent Borrower or any Subsidiary to the Lenders, the Swing Line
Lender, the LC Issuer or the Agent under or in connection with this Agreement, any Credit
Extension, any Subsidiary Guaranty, any Pledge Agreement or any certificate or information
delivered in connection with this Agreement, any Credit Extension or any other Credit Document
shall be materially false on the date as of which made.



     7.2 Nonpayment of (a) any Reimbursement Obligation or the principal of any Loan when due, or
(b) interest upon any Loan or Reimbursement Obligation or of any fee payable pursuant to
Section 2.7 or Section 2.23(d) within five days after the same becomes due, or (c)
any other obligations under any of the Credit Documents not referred to in clauses (a) and
(b) above within five days after receipt by the applicable Borrower of a written demand
therefor from the Agent or any Lender, as applicable.



     7.3 The breach by a Borrower of any of the terms or provisions of Section 6.2,
6.3 or any of Sections 6.10 through 6.23.



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     7.4 The breach by any Borrower (other than a breach which constitutes a Default under
Section 7.1, 7.2 or 7.3) of any of the terms or provisions of this
Agreement, and such breach continues for 30 days after the first to occur of (i) the date the
applicable Borrower first knows of such breach or (ii) the date the applicable Borrower receives
written notice from any Lender (acting through the Agent) of such breach.



     7.5 Failure of the Parent Borrower or any of its Subsidiaries to pay any Material Indebtedness
when due; or either (i) the Parent Borrower or any of its Subsidiaries shall default in the
performance of any term, provision or condition contained in any agreement or agreements under
which any Material Indebtedness was created or is governed (and any applicable grace period(s)
expressly set forth therein shall have expired) or (ii) any other event shall occur or condition
exist (including any “Amortization Event” or event of like import in connection with the
Receivables Purchase Facility), (a) the effect of which (under either clause (i) or
(ii), as the case may be) is to cause, or to permit the holder or holders of such Material
Indebtedness to cause, such Material Indebtedness to become due prior to its stated maturity; or
any Material Indebtedness of the Parent Borrower or any of its Subsidiaries shall be declared to be
due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to
the stated maturity thereof or (b) if such event or condition shall occur under any Receivables
Purchase Documents, the effect thereof is to (x) terminate the reinvestment of collections or
proceeds of Receivables and Related Security under any Receivables Purchase Document (other than a
termination resulting solely from the request of the Parent Borrower or any of its Subsidiaries),
or (y) cause the replacement of, or permit the investors thereunder to replace, the Person then
acting as servicer for the related Receivables Purchase Facility; or the Parent Borrower or any of
its Subsidiaries shall not pay, or shall admit in writing its inability to pay, its debts generally
as they become due.



     7.6 The Parent Borrower or any of its Subsidiaries shall (i) have an order for relief entered
with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make an
assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the
appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or
any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief
with respect to it under the Federal bankruptcy laws as now or hereafter in effect or seeking to
adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed against it, (v) take any
corporate action to authorize or effect any of the foregoing actions set forth in this Section
7.6 or (vi) fail to contest in good faith any appointment or proceeding described in
Section 7.7.



     7.7 Without the application, approval or consent of the Parent Borrower or any of its
Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for
the Parent Borrower or any of its Subsidiaries or any Substantial Portion of its Property; or a
proceeding described in Section 7.6(iv) shall be instituted against the Parent Borrower or
any of its Subsidiaries and such appointment continues undischarged or such proceeding continues
undismissed or unstayed for a period of 60 consecutive days.



     7.8 Any court, government or governmental agency shall condemn, seize or otherwise
appropriate, or take custody or control (each a “Condemnation”), of all or any portion of the
Property of the Parent Borrower or any of its Subsidiaries, which, when taken together with all
other Property of the Parent Borrower and its Subsidiaries, or any of them, so Condemned during the
twelve-month period ending with the month in which any such Condemnation occurs, constitutes a
Substantial Portion of the consolidated Property of the Parent Borrower and its Subsidiaries.



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     7.9 The Parent Borrower or any of its Subsidiaries shall fail within 30 days to pay, bond or
otherwise discharge any one or more judgments or orders for the payment of money in excess of
$30,000,000 (other than any judgment for which a financially sound and reputable insurer has
admitted in writing liability) in the aggregate, which are not stayed on appeal or otherwise being
appropriately contested in good faith with adequate reserves set aside on its books in accordance
with generally accepted accounting principles.



     7.10 The Unfunded Liabilities of all Single Employer Plans shall exceed in the aggregate
$25,000,000; or any Reportable Event shall occur in connection with any Plan; or the Parent
Borrower or any of its Subsidiaries or any other member of the Controlled Group shall become party
to any Multiemployer Plan.



     7.11 Except for matters identified on Schedule 6 hereto, the Parent Borrower or any of
its Subsidiaries shall be the subject of any proceeding or investigation pertaining to the release
by the Parent Borrower or any of its Subsidiaries or any other Person of any toxic or hazardous
waste or substance into the environment, or any violation of any federal, state or local
environmental, health or safety law or regulation, which, in either case, could reasonably be
expected to have a Material Adverse Effect.



     7.12 Any Change in Control shall occur.



     7.13 Other than in connection with any transactions which shall be permitted by the terms
hereof or of any other Credit Document or which shall otherwise have been approved in writing by
Required Lenders (or, if required by the terms of Section 8.3 and Section 8.4, all
of the Lenders), the Parent Borrower shall cease to own directly or indirectly at least 80% of the
capital stock of each Obligor Subsidiary and each Non-U.S. Subsidiary Borrower.



     7.14 The Parent Guaranty, any Subsidiary Guaranty or any Pledge Agreement shall fail to remain
in full force or effect; or any action shall be taken to discontinue or to assert the invalidity or
unenforceability of the Parent Guaranty, any Subsidiary Guaranty or any Pledge Agreement; or the
Parent Borrower or any Subsidiary shall fail to comply with any of the terms or provisions of the
Parent Guaranty, any Subsidiary Guaranty or any Pledge Agreement to which it is a party and any
grace or cure period set forth therein shall have expired; or the Parent Borrower or any Subsidiary
denies that it has any further liability under the Parent Guaranty, any Subsidiary Guaranty or any
Pledge Agreement to which it is a party, or gives notice to such effect.



     7.15 Any of the following shall occur: (i) any Credit Document shall for any reason fail to
create a valid and perfected first priority security interest in any collateral purported to be
covered thereby, except as permitted by the terms of any Credit Document, (ii) any Credit Document
shall fail to remain in full force or effect, (iii) any action shall be taken to discontinue or to
assert the invalidity or unenforceability of any Credit Document, or (iv) any Borrower shall fail
to comply with any of the terms or provisions of any Credit Document (subject to any applicable
cure or grace periods expressly set forth herein or therein, including, with respect to the Credit
Agreement, Section 7.4 hereof).



ARTICLE VIII: ACCELERATION, DEFAULTING LENDERS, WAIVERS, AMENDMENTS AND

REMEDIES




     8.1. Remedies.



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     (a) If any Default described in Section 7.6 or 7.7 occurs with respect to any
Borrower, the Commitments of the Lenders hereunder (and the obligation of the Swing Line Lender to
make Swing Line Loans and the obligation of a LC Issuer to issue Facility LCs) shall automatically
terminate and the Obligations shall immediately become due and payable without any election or
action on the part of the Agent, the Swing Line Lender, the LC Issuer or any Lender. If any other
Default occurs and is continuing, the Required Revolving Lenders may terminate or suspend the
Revolving Loan Commitments of the Lenders (and the obligation of the Swing Line Lender to make
Swing Line Loans and the obligation of a LC Issuer to issue Facility LCs), the Required Lenders may
terminate or suspend the other Commitments of the Lenders, or the Required Lenders may declare the
Obligations to be due and payable, or both, whereupon the Obligations shall become immediately due
and payable, without presentment, demand, protest or notice of any kind, all of which each Borrower
hereby expressly waives. The Agent shall notify the Borrowers of any action taken by the Required
Revolving Lenders or the Required Lenders pursuant to the preceding sentence.



     (b) In addition, each Borrower agrees that upon the occurrence and during the continuance of
any Default, it shall, if requested at any time by the Agent upon instruction from the Required
Revolving Lenders, pay (and, in the case of any of the Defaults specified in Section 7.6 or
7.7 with respect to any Borrower, forthwith, without any demand or the taking of any other
action by the Agent or any Lender, it shall pay) to the Agent an amount in immediately available
funds equal to the then aggregate amount of the LC Obligations attributable to it (in the
applicable currency or currencies of the Facility LCs under which such LC Obligations arose) to be
held as security therefor for the benefit of the Revolving Loan Lenders and the LC Issuer (it being
understood and agreed that no Non-U.S. Subsidiary Borrower shall be required to make any such
payments with respect to any LC Obligations incurred by another Borrower).



     (c) If, within 30 days after acceleration of the maturity of the Obligations or termination of
the Commitments of the relevant Lenders hereunder (and the obligation of the Swing Line Lender to
make Swing Line Loans and the obligation of the LC Issuer to issue Facility LCs) as a result of any
Default (other than any Default as described in Section 7.6 or 7.7 with respect to
any Borrower) and before any judgment or decree for the payment of the Obligations due shall have
been obtained or entered, the Required Lenders (in their sole discretion) shall so direct, the
Agent shall, by notice to the Borrowers, rescind and annul such acceleration and/or termination.



     8.2. Defaulting Lender. In the event that any Lender fails to fund its Revolving
Loan Percentage or Term Loan Percentage, as applicable, of any Advance requested or deemed
requested by any Borrower which such Lender is obligated to fund under the terms of this Agreement
(the funded portion of such Advance being hereinafter referred to as a “Non Pro Rata Loan”), until
the earlier of such Lender’s cure of such failure and the termination of the Commitments, the
proceeds of all amounts thereafter repaid to the Agent by the applicable Borrower and otherwise
required to be applied to such Lender’s share of all other Obligations pursuant to the terms of
this Agreement shall be advanced to the applicable Borrower by the Agent (“Cure Loans”) on behalf
of such Lender to cure, in full or in part, such failure by such Lender, but shall nevertheless be
deemed to have been paid to such Lender in satisfaction of such other Obligations. Notwithstanding
anything in this Agreement to the contrary:




     (i) the foregoing provisions of this Section 8.2 shall apply only with respect
to the proceeds of payments of Obligations and shall not affect the conversion or
continuation of Loans pursuant to Section 2.10;




     (ii) any such Lender shall be deemed to have cured its failure to fund its Revolving
Loan Percentage or Term Loan Percentage of any Advance at such time as an amount equal to



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such Lender’s original Revolving Loan Percentage or Term Loan Percentage, as
applicable, of the requested principal portion of such Advance is fully funded to the
applicable Borrower, whether made by such Lender itself or by operation of the terms of this
Section 8.2, and whether or not the Non Pro Rata Loan with respect thereto has been
repaid, converted or continued;




     (iii) amounts advanced to the applicable Borrower to cure, in full or in part, any such
Lender’s failure to fund its Revolving Loan Percentage or Term Loan Percentage, as
applicable, of any Advance shall bear interest at the rate applicable to Loans which are
Floating Rate Loans, in effect from time to time, and for all other purposes of this
Agreement shall be treated as if they were Floating Rate Loans;




     (iv) regardless of whether or not a Default has occurred or is continuing, and
notwithstanding the instructions of the applicable Borrower as to its desired application,
all repayments of principal which, in accordance with the other terms of this Agreement,
would be applied to the outstanding Floating Rate Loans shall be applied first,
ratably to all Floating Rate Loans constituting Non Pro Rata Loans, second, ratably
to Floating Rate Loans other than those constituting Non Pro Rata Loans or Cure Loans and,
third, ratably to Floating Rate Loans constituting Cure Loans (it being understood
and agreed that all payments of principal made by any Non-U.S. Subsidiary Borrower shall be
applied as set forth above only to Loans made to such Non-U.S. Subsidiary Borrower);




     (v) for so long as and until the earlier of any such Lender’s cure of the failure to
fund its Revolving Loan Percentage or Term Loan Percentage, as applicable, of any Advance
and the termination of the Commitments, the term “Required Lenders” for purposes of this
Agreement shall include those applicable Lenders (excluding all Lenders whose failure to
fund their respective applicable Percentages of such Advance have not been so cured) whose
Percentage represents at least fifty-one percent (51%) of the aggregate Percentages of such
Lenders; and




     (vi) for so long as and until any such Lender’s failure to fund its Revolving Loan
Percentage or Term Loan Percentage, as applicable, of any Advance is cured in accordance
with Section 8.2(ii), (A) such Lender shall not be entitled to and the Borrowers
shall not be required to pay any facility fees with respect to its Commitments and (B) such
Lender shall not be entitled to and the Borrowers shall not be required to pay any letter of
credit fees which would otherwise be payable to such Lender.



     8.3. Amendments. Subject to the provisions of this Article VIII and except
as otherwise set forth in this Section 8.3, the Required Lenders (or the Agent with the
consent in writing of the Required Lenders), the Parent Borrower and (after it has become a party
hereto) each Non-U.S. Subsidiary Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Credit Documents or changing in any manner the
rights of the Lenders or the Borrowers hereunder or thereunder or waiving any Default hereunder;
provided, that no such supplemental agreement shall, without the consent of each Lender
directly affected thereby:




	 	(a)	 	Increase (other than pursuant to and in accordance with Section 2.27)
or decrease the amount of, the Commitment of any Lender (except for a ratable decrease
in the Commitments of all Lenders) or otherwise subject any Lender to any additional
obligation; or




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	 	(b)	 	Reduce the principal of or rate of interest on any Loan, any Reimbursement
Obligation or any fees hereunder or reduce the amount of any principal payment of the
Term Loan required by Section 2.3(d); or
	 
	 	(c)	 	Postpone the date fixed for any payment of principal of or interest on any
Loan, any Reimbursement Obligation or any fees hereunder (other than modifications to
the provisions relating to Designated Prepayments (as defined in Section
2.4(d)) of the Loans and other Obligations); or
	 
	 	(d)	 	Extend the Maturity Date, or otherwise extend the term of the Commitment of any
Lender; or
	 
	 	(e)	 	Change the definition of Required Lenders or the percentage of the Commitments,
the Outstanding Credit Exposures or the Outstanding LC Exposures, or the number of
Lenders, which shall be required for the Lenders or any of them to take any action
under this Section 8.3 or any other provision of the Credit Documents; or
	 
	 	(f)	 	Permit any Borrower to assign any of its rights or obligations under this
Agreement; or
	 
	 	(g)	 	Other than in connection with any transactions which shall be permitted by the
terms hereof or of any other Credit Document or which shall otherwise have been
approved in writing by Required Lenders (or, if required by the other terms of this
Section 8.3. all of the Lenders), release the Parent Borrower or any Subsidiary
from all or any portion of its guaranty liability under its respective Parent Guaranty
or Subsidiary Guaranty; or
	 
	 	(h)	 	Other than in connection with any transactions which shall be permitted by the
terms hereof or of any other Credit Document or which shall otherwise have been
approved in writing by Required Lenders (or, if required by the other terms of this
Section 8.3, all of the Lenders), release any of the collateral pledged pursuant to
the Pledge Agreements;
	 
	 	(i)	 	Waive the requirements of Section 4.1(i); or
	 
	 	(j)	 	Change Sections 11.2 or 11.4 in a manner that would alter the pro rata sharing
of payments and/or application of payments required thereby; or
	 
	 	(k)	 	Amend or waive any of the provisions of this Section 8.3.





     No amendment of any provision of this Agreement relating to the Agent, the Swing Line Lender
or the LC Issuer shall be effective without the written consent of the Agent, the Swing Line Lender
or the LC Issuer, as the case may be. The Agent may waive payment of the fee required under
Section 12.3.2 without obtaining the consent of any other party to this Agreement.



     Notwithstanding the foregoing, this Agreement and any other Credit Document may be amended (or
amended and restated) with the written consent of the Required Lenders, the Agent and the Borrowers
to each relevant Credit Document (x) to add one or more credit facilities to this Agreement and to
permit extensions of credit from time to time outstanding thereunder and the accrued interest and
fees in respect thereof to share ratably in the benefits of this Agreement and the other Credit
Documents with the Revolving Loans, Term Loans and the accrued interest and fees in respect thereof
and (y) to include



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appropriately the Lenders holding such credit facilities in any determination of the Required
Lenders and Lenders.



     8.4. Preservation of Rights. No delay or omission of the Lenders, the Swing Line
Lender or the Agent to exercise any right under the Credit Documents shall impair such right or be
construed to be a waiver of any Default or Unmatured Default or an acquiescence therein, and the
making of a Loan or issuance of a Letter of Credit notwithstanding the existence of a Default or
Unmatured Default or the inability of the applicable Borrower to satisfy the conditions precedent
to such Loan shall not constitute any waiver or acquiescence. Any single or partial exercise of
any such right shall not preclude other or further exercise thereof or the exercise of any other
right, and no waiver, amendment or other variation of the terms, conditions or provisions of the
Credit Documents whatsoever shall be valid unless in writing signed by the Lenders required
pursuant to Section 8.3, and then only to the extent in such writing specifically set
forth. All remedies contained in the Credit Documents or by law afforded shall be cumulative and
all shall be available to the Agent and the Lenders until the Obligations have been paid in full.



ARTICLE IX: GENERAL PROVISIONS




     9.1. Survival of Representations. All representations and warranties of the
Borrowers contained in this Agreement shall survive delivery of this Agreement and the making of
the Loans herein contemplated.



     9.2. Governmental Regulation. Anything contained in this Agreement to the contrary
notwithstanding, no Lender shall be obligated to extend credit to any Borrower in violation of any
limitation or prohibition provided by any applicable statute or regulation.



     9.3. Taxes. Any taxes (excluding income taxes on the overall net income of any
Lender and except as otherwise provided in Section 2.22) or other similar assessments or
charges made by any governmental or revenue authority in respect of the Credit Documents shall be
paid by the applicable Borrower, together with interest and penalties, if any. As of the Closing
Date, neither the Parent Borrower nor any Lender is aware of any such taxes, assessments or
charges.



     9.4. Headings. Section headings in the Credit Documents are for convenience of
reference only, and shall not govern the interpretation of any of the provisions of the Credit
Documents.



     9.5. Entire Agreement. The Credit Documents embody the entire agreement and
understanding among the Borrowers, the Agent and the Lenders and, on and after the Closing Date,
supersede all prior agreements and understandings among the Borrowers, the Agent and the Lenders
relating to the subject matter thereof.



     9.6. Several Obligations; Benefits of this Agreement. The respective obligations of
the Lenders hereunder are several and not joint and no Lender shall be the partner or agent of any
other (except to the extent to which the Agent is authorized to act as such). The failure of any
Lender to perform any of its obligations hereunder shall not relieve any other Lender from any of
its obligations hereunder. This Agreement shall not be construed so as to confer any right or
benefit upon any Person other than the parties to this Agreement and their respective successors
and assigns; provided, however, that the parties hereto expressly agree that the
Arranger shall enjoy the benefits of the provisions of Sections 9.7, 9.12



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and 10.10 to the extent specifically set forth therein and shall have the right to
enforce such provisions on its own behalf and in its own name to the same extent as if it were a
party to this Agreement.




     9.7. Expenses; Indemnification. The Parent Borrower and each Non-U.S. Subsidiary
Borrower shall reimburse the Agent and the Arranger for any costs, internal charges and
out-of-pocket expenses (including reasonable attorneys’ fees and time charges of attorneys for the
Agent and the Arranger, which attorneys may be employees of the Agent or the Arranger) paid or
incurred by the Agent or the Arranger in connection with the preparation, negotiation, execution,
delivery, syndication, amendment, modification and administration of the Credit Documents. The
Parent Borrower and each Non-U.S. Subsidiary Borrower also agree to reimburse the Agent, the Swing
Line Lender, any LC Issuer, the Arranger and the Lenders for any costs, internal charges and
out-of-pocket expenses (including reasonable attorneys’ fees and time charges of attorneys for the
Agent, the Swing Line Lender, any LC Issuer, the Arranger and the Lenders, which attorneys may be
employees of the Agent, the Swing Line Lender, any LC Issuer, the Arranger or the Lenders and other
advisors and professionals engaged by the Agent or the Arranger) paid or incurred by the Agent, the
Swing Line Lender, any LC Issuer, the Arranger or any Lender in connection with the collection and
enforcement of the Credit Documents. The Parent Borrower and each Non-U.S. Subsidiary Borrower
further agree to indemnify the Agent, the Swing Line Lender, any LC Issuer, the Arranger and each
Lender, its directors, officers and employees against all losses, claims, damages, penalties,
judgments, liabilities and expenses (including, without limitation, all expenses of litigation or
preparation therefor whether or not the Agent, the Swing Line Lender, an LC Issuer, the Arranger or
any Lender is a party thereto) (collectively “Losses”) which any of them may pay or incur arising
out of or relating to this Agreement, the other Credit Documents, the transactions contemplated
hereby or the direct or indirect application or proposed application of the proceeds of any Credit
Extension hereunder. The obligations of each Borrower under this Section shall survive the
termination of this Agreement; provided, however, that no Borrower shall be
obligated to indemnify any Lender, the Agent, the Swing Line Lender, the Arranger or any LC Issuer
with respect to Losses which arise solely from such Lender’s, Agent’s Swing Line Lender’s,
Arranger’s or LC Issuer’s gross negligence or willful misconduct. Notwithstanding anything to the
contrary herein, no Borrower shall be liable to reimburse the Agent, the Swing Line Lender, the LC
Issuers, the Arranger or any of the Lenders in respect of disputes which arise or Losses which are
incurred by the Agent, the Swing Line Lender, the LC Issuers, the Arranger or any of the Lenders
which arise solely as a result of an action or failure to act on the part of the Agent, the Swing
Line Lender, an LC Issuer, the Arranger or a Lender and which do not relate in any way to actions
or failures to act on the part of the applicable Borrower or any of the Parent Borrower’s
Subsidiaries. Without otherwise limiting the foregoing, it is understood and agreed that no
Non-U.S. Subsidiary Borrower shall be obligated to indemnify or reimburse any Lender, the Agent,
the Swing Line Lender, the Arranger or any LC Issuer with respect to any amounts determined to be
attributable to Loans made to, or Obligations incurred by or on behalf of, another Borrower.



     9.8. Numbers of Documents. All statements, notices, closing documents, and requests
hereunder shall be furnished to the Agent with sufficient counterparts so that the Agent may
furnish one to each of the Lenders.



     9.9. Accounting. Except as provided to the contrary herein, all accounting terms
used herein shall be interpreted and all accounting determinations hereunder shall be made in
accordance with Agreement Accounting Principles.



     9.10. [Reserved]



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     9.11. Severability of Provisions. Any provision in any Credit Document that is held
to be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be
inoperative, unenforceable, or invalid without affecting the remaining provisions in that
jurisdiction or the operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Credit Documents are declared to be severable.



     9.12. Nonliability of Lenders. The relationship between the Borrowers on the one
hand and the Lenders, the Swing Line Lender, the LC Issuers and the Agent on the other hand shall
be solely that of borrower and lender. Neither the Agent, the Arranger, the Swing Line Lender, the
LC Issuers nor any Lender shall have any fiduciary responsibilities to any Borrower or vice versa.
Neither the Agent, the Arranger, the Swing Line Lender, the LC Issuers nor any Lender undertakes
any responsibility to the Borrowers to review or inform any Borrower of any matter in connection
with any phase of the Borrowers’ business or operations.



     9.13. CHOICE OF LAW. THE CREDIT DOCUMENTS (OTHER THAN THOSE CONTAINING A CONTRARY
EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT
THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO
NATIONAL BANKS.



     9.14. CONSENT TO JURISDICTION. THE BORROWERS, THE AGENT, THE LC ISSUER AND EACH
LENDER EACH HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY CREDIT DOCUMENTS AND EACH SUCH PARTY HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY
WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN
SHALL LIMIT THE RIGHT OF THE AGENT, THE LC ISSUER OR ANY LENDER TO BRING PROCEEDINGS AGAINST ANY
BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY BORROWER AGAINST
THE AGENT, THE LC ISSUER OR ANY LENDER OR ANY AFFILIATE OF THE AGENT, THE LC ISSUER OR ANY LENDER
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH ANY CREDIT DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.



     9.15. WAIVER OF JURY TRIAL. THE BORROWERS, THE AGENT, THE LC ISSUER AND EACH LENDER
HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH ANY CREDIT DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.



     9.16. Agent for Service of Process. Upon becoming a party hereto, each Non-U.S.
Subsidiary Borrower hereby irrevocably appoints the Parent Borrower as its agent for service of
process in any proceeding referred to in Section 9.14 of this Agreement and agrees that
service of process in any such proceeding may be made by mailing or delivering a copy thereof to it
care of Parent Borrower at its address for notices set forth in Article XIII of this
Agreement.



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     9.17. Confidentiality. Each Lender agrees to hold any confidential information which
it may receive from any Borrower pursuant to this Agreement in confidence, except for disclosure
(i) to other Lenders and their respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to that Lender or to a Transferee, (iii) to regulatory officials exercising
regulatory functions over or with respect to any Lender, (iv) to any Person as required by law,
regulation, or legal process, (v) to any Person in connection with any legal proceeding to which
that Lender is a party, and (vi) as permitted by Section 12.4.



     9.18. USA Patriot Act Notification. The following notification is provided to the
Borrowers pursuant to Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section 5318:


IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the government of the
United States of America fight the funding of terrorism and money laundering activities, Federal
law requires all financial institutions to obtain, verify, and record information that identifies
each Person that opens an account, including any deposit account, treasury management account,
loan, other extension of credit, or other financial services product. Accordingly, when any
Borrower opens an account, the Agent and the Lenders will ask for such Borrower’s name, tax
identification number, business address, and other information that will allow the Agent and the
Lenders to identify such Borrower. The Agent and the Lenders may also ask to see such Borrower’s
legal organizational documents or other identifying documents.




ARTICLE X: THE AGENT




     10.1. Appointment. JPMorgan is hereby appointed Agent hereunder and under each other
Credit Document, and each of the Lenders irrevocably authorizes the Agent to act as the contractual
representative of such Lender with the rights and duties as expressly set forth herein. The Agent
agrees to act as such upon the express conditions contained in this Article X. The Agent
shall not have a fiduciary relationship in respect of any Borrower or any Lender by reason of this
Agreement.



     10.2. Powers. The Agent shall have and may exercise such powers under the Credit
Documents as are specifically delegated to the Agent by the terms of each thereof, together with
such powers as are reasonably incidental thereto. The Agent shall have no implied duties to the
Lenders, or any obligation to the Lenders to take any action thereunder except any action
specifically provided by the Credit Documents to be taken by the Agent.



     10.3. General Immunity. Neither the Agent nor any of its directors, officers, agents
or employees shall be liable to any Borrower, the Lenders or any Lender for any action taken or
omitted to be taken by it or them hereunder or under any other Credit Document or in connection
herewith or therewith except for its or their own gross negligence or willful misconduct.



     10.4. No Responsibility for Loans, Recitals, etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be responsible for or have any duty to ascertain,
inquire into, or verify (i) any statement, warranty or representation made in connection with any
Credit Document or any borrowing hereunder; (ii) the performance or observance of any of the
covenants or agreements of any obligor under any Credit Document, including, without limitation,
any agreement by any Borrower to furnish information directly to each Lender; (iii) the
satisfaction of any condition specified in Article IV, except receipt of items required to
be delivered to the Agent; (iv) the value, sufficiency, creation, perfection or priority of any
Lien in any collateral security; or (v) the validity, effectiveness or genuineness of any Credit
Document or any other instrument or writing furnished in connection



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therewith. The Agent shall have no duty to disclose to the Lenders information that is not
required to be furnished by a Borrower to the Agent at such time, but is voluntarily furnished by a
Borrower to the Agent (either in its capacity as Agent or in its individual capacity).




     10.5. Action on Instructions of Lenders. The Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder and under any other Credit Document in
accordance with written instructions signed by the Required Lenders (except to the extent
Section 8.3 requires the unanimous consent of all Lenders), and such instructions and any
action taken or failure to act pursuant thereto shall be binding on all of the Lenders. The Agent
shall be fully justified in failing or refusing to take any action hereunder and under any other
Credit Document unless it shall first be indemnified to its satisfaction by the Lenders pro rata
against any and all liability, cost and expense that it may incur by reason of taking or continuing
to take any such action.



     10.6. Employment of Agents and Counsel. The Agent may execute any of its duties as
Agent hereunder and under any other Credit Document by or through employees, agents, and
attorneys-in-fact and shall not be answerable to the Lenders, except as to money or securities
received by it or its authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning all matters pertaining to the agency hereby created and its duties hereunder and
under any other Credit Document.



     10.7. Reliance on Documents; Counsel. The Agent shall be entitled to rely upon any
notice, consent, certificate, affidavit, letter, telegram, statement, paper or document believed by
it to be genuine and correct and to have been signed or sent by the proper person or persons, and,
in respect to legal matters, upon the opinion of counsel selected by the Agent, which counsel may
be employees of the Agent.



     10.8. Agent’s Reimbursement and Indemnification. The Lenders agree to reimburse and
indemnify the Agent ratably in proportion to their respective Commitments or, if the Commitments
have terminated, their Outstanding Credit Exposure (i) for any amounts not reimbursed by any
Borrower for which the Agent is entitled to reimbursement by the applicable Borrower pursuant to
Section 9.7, (ii) for any other expenses incurred by the Agent on behalf of the Lenders, in
connection with the collection and enforcement of the Credit Documents and (iii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted
against the Agent in any way relating to or arising out of the Credit Documents or any other
document delivered in connection therewith or the transactions contemplated thereby, or the
enforcement of any of the terms thereof or of any such other documents, provided that no Lender
shall be liable for any of the foregoing to the extent any of the foregoing arise from the gross
negligence or willful misconduct of the Agent. The obligations of the Lenders under this
Section 10.8 shall survive payment of the Obligations and termination of this Agreement.



     10.9. Rights as a Lender. In the event the Agent is a Lender, the Agent shall have
the same rights and powers hereunder and under any other Credit Document as any Lender and may
exercise the same as though it were not the Agent, and the term “Lender” or “Lenders” shall, at any
time when the Agent is a Lender, unless the context otherwise indicates, include the Agent in its
individual capacity. The Agent may accept deposits from, lend money to, and generally engage in
any kind of trust, debt, equity or other transaction, in addition to those contemplated by this
Agreement or any other Credit Document, with the Borrowers or any of the Borrower’s Subsidiaries in
which such Borrower or such Subsidiary is not restricted hereby from engaging with any other
Person. The Agent, in its individual capacity, is not obligated to remain a Lender.



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     10.10. Lender Credit Decision. Each Lender acknowledges that it has, independently
and without reliance upon the Agent, the Arranger or any other Lender and based on the financial
statements prepared by the Borrowers and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Agreement and the other
Credit Documents. Each Lender also acknowledges that it will, independently and without reliance
upon the Agent, the Arranger 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 and the other Credit Documents.



     10.11. Successor Agent. The Agent may resign at any time by giving written notice
thereof to the Lenders and the Parent Borrower, such resignation to be effective upon the
appointment of a successor Agent or, if no successor Agent has been appointed, forty-five days
after the retiring Agent gives notice of its intention to resign. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Agent on behalf of the Lenders and the
Borrowers, with the Parent Borrower’s consent (provided such consent may not be unreasonably
withheld or delayed and provided further no such consent shall be required if a Default shall have
occurred and be continuing). If no successor Agent shall have been so appointed by the Required
Lenders or consented to by the Parent Borrower (if such consent is required) within thirty days
after the resigning Agent’s giving notice of its intention to resign, then the resigning Agent may
appoint, on behalf of the Borrowers and the Lenders, a successor Agent. If the Agent has resigned
and no successor Agent has been appointed, the Lenders may perform all the duties of the Agent
hereunder and each Borrower shall make all payments in respect of its respective Obligations to the
applicable Lender and for all other purposes shall deal directly with the Lenders. No successor
Agent shall be deemed to be appointed hereunder until such successor Agent has accepted the
appointment. Any such successor Agent shall be a commercial bank having capital and retained
earnings of at least $100,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigning or removed Agent. Upon the effectiveness of
the resignation of the Agent, the resigning Agent shall be discharged from its duties and
obligations hereunder and under the Credit Documents. After the effectiveness of the resignation
of an Agent, the provisions of this Article X shall continue in effect for the benefit of
such Agent in respect of any actions taken or omitted to be taken by it while it was acting as the
Agent hereunder and under the other Credit Documents.



     10.12. Agent’s Fees. The Borrowers agree to pay to the Agent and the Lenders, for
their own respective accounts, the fees agreed to by the Parent Borrower pursuant to that certain
letter agreement dated July 25, 2008, or as otherwise agreed from time to time (it being understood
and agreed that no Non-U.S. Subsidiary Borrower shall be liable for payment of any fees determined
to be attributable to another Borrower).



     10.13. Execution of Guarantees and Collateral Documents. The Lenders, the Swing Line
Lender and the LC Issuers hereby empower and authorize the Agent to execute and deliver to the
applicable Borrower on their behalf the Parent Guaranty, Subsidiary Guaranties, Pledge Agreement(s)
and all related agreements, documents or instruments as shall be necessary of appropriate to effect
the purposes of the Parent Guaranty, Subsidiary Guaranties and Pledge Agreement(s).



     10.14. Collateral and Guaranty Releases. The Lenders, the Swing Line Lender and the
LC Issuers hereby empower and authorize the Agent to execute and deliver to the applicable Borrower
on their behalf any agreements, documents or instruments as shall be necessary or appropriate to
effect any releases of any entities’ liability with respect to the Parent Guaranty or any
Subsidiary Guaranty or release



83









 




of any collateral pledged pursuant to any Pledge Agreement in connection with any transactions
which shall be permitted by the terms hereof or of any other Credit Document or which shall
otherwise have been approved in writing by the Required Lenders (or, if required by the terms of
Section 8.3 and Section 8.4, all of the Lenders).




     10.15. No Duties Imposed on the Syndication Agent, Documentation Agents or the
Arranger. Except as specifically provided otherwise herein with respect to the rights and
benefits of the Arranger hereunder, none of the Persons identified on the cover page to this
Agreement, the signature pages to this Agreement or otherwise in this Agreement as a “Syndication
Agent”, ”Documentation Agent” or “Arranger” shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than if such Person is a Lender, those applicable
to all Lenders as such. Without limiting the foregoing, none of the Persons identified on the
cover page to this Agreement, the signature pages to this Agreement or otherwise in this Agreement
as a “Syndication Agent”, ”Documentation Agent” or “Arranger” shall have or be deemed to have any
fiduciary duty to or fiduciary relationship with any Lender. In addition to the agreement set
forth in Section 10.10, each of the Lenders acknowledges that it has not relied, and will
not rely, on any of the Persons so identified in deciding to enter into this Agreement or in taking
or not taking action hereunder.



     10.16. Foreign Pledge Provisions.



          (a) The Parent Borrower, on its behalf and on behalf of its Domestic Subsidiaries, and each
Lender, on its behalf and on the behalf of its affiliated Holders of Secured Obligations, hereby
irrevocably constitute the Agent as the holder of an irrevocable power of attorney (fondé de
pouvoir within the meaning of Article 2692 of the Civil Code of Québec) in order to hold hypothecs
and security granted by the Parent Borrower or any Domestic Subsidiary on property pursuant to the
laws of the Province of Quebec to secure obligations of any Borrower or any Subsidiary under any
bond, debenture or similar title of indebtedness issued by any Borrower or any Subsidiary in
connection with this Agreement, and agree that the Agent may act as the bondholder and mandatary
with respect to any bond, debenture or similar title of indebtedness that may be issued by any
Borrower or any Subsidiary and pledged in favor of the Holders of Secured Obligations in connection
with this Agreement. Notwithstanding the provisions of Section 32 of the An Act respecting the
special powers of legal persons (Quebec), JPMorgan Chase Bank, N.A. as Agent may acquire and be the
holder of any bond issued by any Borrower or any Subsidiary in connection with this Agreement
(i.e., the fondé de pouvoir may acquire and hold the first bond issued under any deed of hypothec
by the Parent Borrower or any Domestic Subsidiary).




          (b) The Agent is hereby authorized by the Parent Borrower and the Lenders to execute and
deliver any documents necessary or appropriate to create and perfect the rights of pledge of assets
governed by the laws of the Netherlands for the benefit of the Holders of Secured Obligations
including a right of pledge with respect to the entitlements to profits, the balance left after
winding up and the voting rights of the Parent Borrower as parent of any subsidiary of the Parent
Borrower which is organized under the laws of the Netherlands and the equity interests of which are
pledged by the Parent Borrower in connection herewith (a “Dutch Pledge”). Without
prejudice to the provisions of this Agreement and the other Credit Documents, the parties hereto
acknowledge and agree with the creation of parallel debt obligations of the Parent Borrower as will
be described in any Dutch Pledge (the “Parallel Debt”), including that any payment received
by the Agent in respect of the Parallel Debt will — conditionally upon such payment not
subsequently being avoided or reduced by virtue of any provisions or enactments relating to
bankruptcy, insolvency, preference, liquidation or similar laws of general application — be deemed
a satisfaction of a pro rata portion of the corresponding amounts of the



84









 






Obligations, and any payment to the Holders of Secured Obligations in satisfaction of the
Obligations shall conditionally upon such payment not subsequently being avoided or reduced by
virtue of any provisions or enactments relating to bankruptcy, insolvency, preference, liquidation
or similar laws of general application be deemed as satisfaction of the corresponding amount of the
Parallel Debt. The parties hereto acknowledge and agree that, for purposes of a Dutch Pledge, any
resignation by the Agent is not effective until its rights under the Parallel Debt are assigned to
the successor Agent.




          (c) The parties hereto agree for the purposes of taking and ensuring the continuing validity
of German law governed pledges (Pfandrechte) to the creation of parallel debt obligations of the
Parent Borrower under a separate German law governed parallel debt undertaking. The Agent shall
hold such parallel debt undertaking as fiduciary agent (Treuhaender) in its own name and for the
account of the Holders of the Secured Obligations. The Agent shall administer and hold as fiduciary
agent (Treuhaender) any German law pledge (Pfandrecht) which is created in favor of any Holder of
the Secured Obligations or otherwise transferred to any Holder of Secured Obligations due to its
accessory nature (Akzessorietaet) in its own name and on behalf of the Holders of Secured
Obligations. Each Lender, on its own behalf and on behalf of its affiliated Holders of Secured
Obligations, hereby authorizes the Agent as its representative (Vertreter) to enter into any Credit
Document governed by the laws of Germany, to accept any pledge or other creation of any accessory
security right in relation to this Agreement and to agree to and execute on its behalf as its
representative amendments, supplements and other alterations to any Credit Document governed by the
laws of Germany and to release on behalf of such party any Credit Document governed by the laws of
Germany in accordance with the provisions herein and/or the provisions in the relevant German law
governed Credit Document.




ARTICLE XI: SETOFF; RATABLE PAYMENTS




     11.1. Setoff. In addition to, and without limitation of, any rights of the Lenders
under applicable law, if any Default or Unmatured Default occurs, any and all deposits (including
all account balances, whether provisional or final and whether or not collected or available) and
any other Indebtedness at any time held or owing by any Lender to or for the credit or account of
the applicable Borrower may be offset and applied toward the payment of the Obligations owing to
such Lender, whether or not the Obligations, or any part hereof, shall then be due (it being
understood and agreed that deposits of any Non-U.S. Subsidiary Borrower or Indebtedness held or
owing by a Lender to or for the credit or account of any Non-U.S. Subsidiary Borrower shall be
offset by such Lender and applied only toward any Obligations incurred by or on behalf of such
Non-U.S. Subsidiary Borrower to that Lender); it being understood that, in order to effect
such setoff, any Lender may combine currencies at the then-effective buy and sell spot rate of
exchange of such Lender with respect to such currencies.



     11.2. Ratable Payments. If any Lender, whether by setoff or otherwise, has payment
made to it upon its share of any Advance (other than payments received pursuant to Sections
3.1, 3.2 or 3.4) in a greater proportion than that received by any other
Lender, such Lender agrees, promptly upon demand, to purchase a portion of the Loans comprising
that Advance held by the other Lenders so that after such purchase each Lender will hold its
ratable proportion of Loans comprising that Advance. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives collateral or other
protection for its Obligations or such amounts which may be subject to setoff, such Lender agrees,
promptly upon demand, to take such action necessary such that all Lenders share in the benefits of
such collateral ratably in proportion to their Loans. In case any such payment is disturbed by
legal process, or otherwise, appropriate further adjustments shall be made.



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     11.3. Relations Among Lenders. The Lenders are not partners or co-venturers, and no
Lender shall be liable for the acts or omissions of or (except as otherwise set forth herein with
respect to the Agent) authorized to act for or on behalf of any other Lender.



     11.4. Application of Payments. Subject to the provisions of Section 8.2 and
the provisions in this Agreement regarding the Obligations of and payments by Non-U.S. Subsidiary
Borrowers, the Agent shall, unless otherwise specified at the direction of the Required Lenders
which direction shall be consistent with the last sentence of this Section 11.4, apply all
payments and prepayments in respect of any Obligations and all proceeds of collateral in the
following order:



          (a) first, to pay Obligations in respect of any fees, expense reimbursements or
indemnities then due to the Agent;




          (b) second, to the ratable payment of Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Lenders and the LC Issuer(s);




          (c) third, to the ratable payment of interest due in respect of Loans and LC
Obligations;




          (d) fourth, to the ratable payment or prepayment of principal outstanding on Loans,
Reimbursement Obligations and Hedging Obligations;




          (e) fifth, to provide required cash collateral, if required pursuant to Section
2.23 and




          (f) sixth, to the ratable payment of all other Obligations.



Unless otherwise designated (which designation shall only be applicable prior to the occurrence of
a Default) by the Parent Borrower, all principal payments in respect of Loans (other than Swing
Line Loans) shall be applied first, to repay outstanding Floating Rate Loans, and
then to repay outstanding Eurocurrency Loans with those Eurocurrency Loans which have
earlier expiring Interest Periods being repaid prior to those which have later expiring Interest
Periods. The order of priority set forth in this Section 11.4 and the related provisions
of this Agreement are set forth solely to determine the rights and priorities of the Agent, the
Lenders, the LC Issuer(s) and other holders of Obligations as among themselves. The order of
priority set forth in clauses (b) through (f) of this Section 11.4 may at
any time and from time to time be changed by the Required Lenders without necessity of notice to or
consent of or approval by the Parent Borrower, or any other Person. The order of priority set
forth in clause (a) of this Section 11.4 may be changed only with the prior written
consent of the Agent.




ARTICLE XII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATION




     12.1. Successors and Assigns. The terms and provisions of the Parent Borrower Credit
Documents and the Non-U.S. Subsidiary Borrower Credit Documents shall be binding upon and inure to
the benefit of the Parent Borrower and the Non-U.S. Subsidiary Borrowers, respectively, and the
Lenders and their respective successors and assigns, except that (i) neither the Parent Borrower
nor any Non-U.S. Subsidiary Borrower shall have the right to assign its rights or obligations under
the Parent Borrower Credit Documents or the Non-U.S. Subsidiary Borrower Credit Documents,
respectively, and (ii) any assignment by any Lender must be made in compliance with Section 12.3.
Notwithstanding clause (ii) of this Section, any Lender may at any time, without the consent of the
Parent Borrower, any Non-U.S.



86









 




Subsidiary Borrower or the Agent, assign all or any portion of its rights under the Credit
Documents to a Federal Reserve Bank; provided, however, that no such assignment shall release the
transferor Lender from its obligations hereunder. The Agent may treat any Lender as the owner of
the Loans made by such Lender hereunder for all purposes hereof unless and until such payee
complies with Section 12.3 in the case of an assignment thereof or, in the case of any other
transfer, a written notice of the transfer is filed with the Agent. Any assignee or transferee of
a Loan agrees by acceptance thereof to be bound by all the terms and provisions of the Credit
Documents. Any request, authority or consent of any Person, who at the time of making such request
or giving such authority or consent is the owner of any Loan, shall be conclusive and binding on
any subsequent holder, transferee or assignee of such Loan.




     12.2. Participation.



          12.2.1. Permitted Participants; Effect. Any Lender may, in the ordinary course of
its business and in accordance with applicable law, at any time sell to one or more banks or other
entities (“Participants”) participating interests in any Outstanding Credit Exposure owing to such
Lender, any Loans owned by such Lender, any Commitment of such Lender or any other interest of such
Lender under the Credit Documents. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender’s obligations under the Credit Documents shall remain
unchanged, such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, such Lender shall remain the owner of all Loans made by it for all
purposes under the Credit Documents, all amounts payable by each Borrower under this Agreement
shall be determined as if such Lender had not sold such participating interests, and each Borrower,
the LC Issuer and the Agent shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under the Credit Documents except that, for
purposes of Sections 3.1, 3.2 or 3.4 hereof, the Participants shall be
entitled to the same rights as if they were Lenders provided however that no Participant shall be
entitled to receive any greater payment under Sections 3.1, 3.2 or 3.4 than
the Lender would have been entitled to receive with respect to the rights participated.




          12.2.2. Voting Rights. Each Lender shall retain the sole right to approve, without
the consent of any Participant, any amendment, modification or waiver of any provision of the
Credit Documents, other than any such amendment, modification or waiver which requires the
unanimous consent of the Lenders under Section 8.3 and Section 8.4.




          12.2.3. Benefit of Setoff. Each Borrower agrees that each Participant shall be
deemed to have the right of setoff provided in Section 11.1 in respect of its participating
interest in amounts owing under the Credit Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the Credit Documents, provided
that each Lender shall retain the right of setoff provided in Section 11.1 with respect to
the amount of participating interests sold to each Participant. The Lenders agree to share with
each Participant, and each Participant, by exercising the right of setoff provided in Section
11.1, agrees to share with each Lender, any amount received pursuant to the exercise of its
right of setoff, such amounts to be shared in accordance with Section 11.2 as if each
Participant were a Lender.




     12.3. Assignments.



          12.3.1. Permitted Assignments. Any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time assign to one or more banks or other
entities (“Purchasers”) all or any part of its rights and obligations under the Credit Documents;
provided, that, unless the assignment is to another Lender, an Affiliate of a Lender or an
Approved Fund and except as



87









 






the Agent and the Parent Borrower shall otherwise agree, each such assignment shall be in the
minimum principal amount of not less than the lesser of (i) $5,000,000 in the case of a Revolving
Loan Commitment or $1,000,000 in the case of a Term Loan and (ii) the amount of such Lender’s
Commitments or Loans as of the proposed date of such assignment, and each such assignment shall be
of a constant, and not a varying, percentage of the assigning Lender’s rights and obligations under
this Agreement and the assignment shall cover the same percentage of such Lender’s commitment,
Loans and interest in Facility LCs (provided that this clause shall not be construed to prohibit
the assignment of a part or all of the assigning Lender’s rights and obligations in respect of one
Facility and not the other Facility). Each such assignment shall be substantially in the form of
Exhibit I hereto or in such other form as may be agreed to by the Agent and the parties
thereto. The consent of the Parent Borrower shall be required prior to an assignment becoming
effective with respect to a Purchaser which is not a Lender, an Affiliate of a Lender or an
Approved Fund (which consent may not be unreasonably withheld); provided, that if (i) a
Default has occurred and is continuing or (ii) the assignment is pursuant to the physical
settlement of credit derivative transactions, the consent of the Parent Borrower shall not be
required. The consent of the Agent (not to be unreasonably withheld) shall be required prior to an
assignment becoming effective; provided that no consent of the Agent shall be required for an
assignment of all or any portion of the Term Loan to a Lender, an Affiliate of a Lender or an
Approved Fund.




          12.3.2. Effect; Effective Date. Upon Purchaser’s (i) delivery to the Agent of a
notice of assignment, substantially in the form attached as Exhibit “A” to Exhibit I hereto
(a “Notice of Assignment”), together with any consents required by Section 12.3.1, and (ii)
payment of a $3,500 fee (except in the case of an assignment from a Lender to its Affiliate or
Approved Fund) to the Agent for processing such assignment, such assignment shall become effective
on the effective date specified in such Notice of Assignment. On and after the effective date of
such assignment, such Purchaser shall for all purposes be a Lender party to this Agreement and any
other Credit Document executed by the Lenders and shall have all the rights and obligations of a
Lender under the Credit Documents, to the same extent as if it were an original party hereto, and
no further consent or action by any Borrower, the Lenders, the LC Issuer or the Agent shall be
required to release the transferor Lender with respect to the percentage of the Aggregate Revolving
Loan Commitment and Outstanding Credit Exposure assigned to such Purchaser (and, in the case of an
assignment covering all of the transferor Lender’s rights and obligations under this Agreement,
such transferor Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 3.1, 3.2, 3.4 and 9.7). Upon the consummation
of any assignment to a Purchaser pursuant to this Section 12.3.2, the transferor Lender,
the Agent and the Borrowers shall make appropriate arrangements so that, to the extent promissory
notes have been issued to evidence any of the transferred Loans, replacement promissory notes are
issued to the transferor Lender and a new promissory notes or, as appropriate, replacement
promissory notes are issued to such Purchaser, in each case in principal amounts reflecting their
Commitment, as adjusted pursuant to such assignment. Upon the Purchaser’s receipt of new or
replacement promissory notes, the transferor Lender shall return its old promissory notes to the
applicable Borrower appropriately legended.




          12.3.3. Register. The Agent shall maintain at its address referred to in Section
13.1 a copy of each assignment delivered to and accepted by it pursuant to this
Section 12.3 and a register (the “Register”) for the recordation of the names and addresses
of the Lenders and the Commitments of and principal amount of the Loans owing to, each Lender from
time to time and whether such Lender is an original Lender or the assignee of another Lender
pursuant to an assignment under this Section 12.3. The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and each Borrower, the Agent and
the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for
all purposes of this Agreement. The Register shall be available for inspection by any Borrower or
any Lender at any reasonable time and from time to time upon reasonable prior notice.




88









 








     12.4. Dissemination of Information. Each Borrower authorizes each Lender to disclose
to any Participant or Purchaser or any other Person acquiring an interest in the Credit Documents
by operation of law (each a “Transferee”) and any prospective Transferee, or to any direct,
indirect, actual or prospective counterparty (and its advisors) to any swap, derivative or
securitization transaction related to the obligations under this Agreement, any and all information
in such Lender’s possession concerning the creditworthiness of the Parent Borrower and its
Subsidiaries; provided, that each Transferee, prospective Transferee and such
counterparties and advisors agree to be bound by Section 9.17 of this Agreement.



     12.5. Tax Treatment. If any interest in any Credit Document is transferred to any
Transferee which is organized under the laws of any jurisdiction other than the United States or
any State thereof, the transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the provisions of Section 2.22.



ARTICLE XIII: NOTICES




     13.1. Giving Notice. Except as otherwise permitted by Section 2.13 with
respect to borrowing notices, all notices and other communications provided to any party hereto
under this Agreement or any other Credit Document shall be given either in writing or by facsimile
and addressed or delivered to such party at its address or facsimile number, as the case may be,
set forth below its signature hereto or at such other address or facsimile number as may be
designated by such party in a notice to the other parties. Any notice, if mailed and properly
addressed with postage prepaid, shall be deemed given when received; any notice, if properly
transmitted by facsimile, shall be deemed given when transmitted.



     13.2. Change of Address. Each Borrower, the Agent, the LC Issuer and any Lender may
each change the address and/or facsimile number for service of notice upon it by a notice in
writing to the other parties hereto.



ARTICLE XIV: COUNTERPARTS




     This Agreement may be executed in any number of counterparts, all of which taken together
shall constitute one agreement, and any of the parties hereto may execute this Agreement by signing
any such counterpart. This Agreement shall be effective when it has been executed by the
Borrowers, the Agent, the LC Issuer and the Lenders and each party has notified the Agent by
facsimile or telephone, that it has taken such action.



[Signature Pages Follow]




89









 








SCHEDULE 1(a)

TO

CREDIT AGREEMENT




Revolving Loan Commitments, Term Loan Dollar Tranche Commitments

and Term Loan Euro Tranche Commitments




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Revolving Loan	 	Term Loan Dollar	 	Term Loan Euro
	Lender	 	Commitment	 	Tranche Commitment	 	Tranche Commitment
	JPMorgan Chase Bank, N.A.
	 	$	41,641,791	 	 	$	19,179,104	 	 	€	16,119,404	 
	Bank of America, N.A.
	 	$	32,388,060	 	 	$	18,805,970	 	 	€	12,537,313	 
	Mizuho Corporate Bank, Ltd.
	 	$	26,373,134	 	 	$	15,313,433	 	 	€	10,208,955	 
	U.S. Bank, National Association
	 	$	26,373,134	 	 	$	15,313,433	 	 	€	10,208,955	 
	Bayerische Hypo-und Vereinsbank AG,
New York Branch
	 	$	22,671,642	 	 	$	13,164,179	 	 	€	8,776,119	 
	National City Bank
	 	$	22,671,642	 	 	$	13,164,179	 	 	€	8,776,119	 
	Scotiabanc Inc.
	 	$	22,671,642	 	 	$	13,164,179	 	 	€	8,776,119	 
	The Bank of Tokyo-Mitsubishi UFJ, Ltd.
	 	$	22,671,642	 	 	$	13,164,179	 	 	€	8,776,119	 
	Nordea Bank Finland plc
	 	$	16,194,030	 	 	$	9,402,985	 	 	€	6,268,657	 
	RBS Citizens, N.A.
	 	$	16,194,030	 	 	$	9,402,985	 	 	€	6,268,657	 
	Wells Fargo Bank, N.A.
	 	$	16,194,030	 	 	$	9,402,985	 	 	€	6,268,657	 
	Branch Banking & Trust Company
	 	$	11,567,164	 	 	$	6,716,418	 	 	€	4,477,612	 
	HSBC Bank USA, N.A.
	 	$	6,940,298	 	 	$	4,029,851	 	 	€	2,686,567	 
	HSBC Bank plc
	 	$	4,626,866	 	 	$	2,686,567	 	 	€	1,791,045	 
	Key Bank National Association
	 	$	11,567,164	 	 	$	6,716,418	 	 	€	4,477,612	 
	The Northern Trust Company
	 	$	9,253,731	 	 	$	5,373,135	 	 	€	3,582,090	 
	Chang Hwa Commercial Bank, Ltd.
	 	 	—	 	 	$	5,000,000	 	 	 	 	 
	Total
	 	$	310,000,000	 	 	$	180,000,000	 	 	€	120,000,000	 






 









 





SCHEDULE 1(b)

TO

CREDIT AGREEMENT




Mandatory Cost





	1.	 	The Mandatory Cost is an addition to the interest rate to compensate Lenders for the cost of
compliance with (a) the requirements of the Bank of England and/or the Financial Services
Authority (or, in either case, any other authority which replaces all or any of its functions)
or (b) the requirements of the European Central Bank.
	 
	2.	 	On the first day of each Interest Period (or as soon as possible thereafter) the Agent shall
calculate, as a percentage rate, a rate (the “Associated Costs Rate”) for each Lender,
in accordance with the paragraphs set out below. The Mandatory Cost will be calculated by the
Agent as a weighted average of the Lenders’ Associated Costs Rates (weighted in proportion to
the percentage participation of each Lender in the relevant Loan) and will be expressed as a
percentage rate per annum.
	 
	3.	 	The Associated Costs Rate for any Lender lending from a Facility Office in a Participating
Member State will be the percentage notified by that Lender to the Agent. This percentage
will be certified by that Lender in its notice to the Agent to be its reasonable determination
of the cost (expressed as a percentage of that Lender’s participation in all Loans made from
that Facility Office) of complying with the minimum reserve requirements of the European
Central Bank in respect of loans made from that Facility Office.
	 
	4.	 	The Associated Costs Rate for any Lender lending from a Facility Office in the United Kingdom
will be calculated by the Agent as follows:






	 	(a)	 	in relation to a Loan in Pounds Sterling:






	 		 	per cent. per annum






	 	(b)	 	in relation to a Loan in any currency other than Pounds Sterling:






	 		 	per cent. per annum






	 	 	Where:






	 	A	 	is the percentage of Eligible Liabilities (assuming these to be in excess of any
stated minimum) which that Lender is from time to time required to maintain as an
interest free cash ratio deposit with the Bank of England to comply with cash ratio
requirements.
	 
	 	B	 	is the percentage rate of interest (excluding the Applicable Margin and the
Mandatory Cost and, if the Loan is an Unpaid Sum, the additional rate of interest
specified in Section 2.13(c) payable for the relevant Interest Period on the Loan.




 









 












	 	C	 	is the percentage (if any) of Eligible Liabilities which that Lender is required
from time to time to maintain as interest bearing Special Deposits with the Bank of
England.
	 
	 	D	 	is the percentage rate per annum payable by the Bank of England to the Agent on
interest bearing Special Deposits.
	 
	 	E	 	is designed to compensate Lenders for amounts payable under the Fees Rules and is
calculated by the Agent as being the average of the most recent rates of charge supplied
by the Reference Banks to the Agent pursuant to paragraph 7 below and expressed in
pounds per £1,000,000.






	5.	 	For the purposes of this Schedule:






	 	(a)	 	“Eligible Liabilities” and “Special Deposits” have the meanings given to them
from time to time under or pursuant to the Bank of England Act 1998 or (as may be
appropriate) by the Bank of England;
	 
	 	(b)	 	“Facility Office” means the office or offices notified by a Lender to the Agent
in writing on or before the date it becomes a Lender (or, following that date, by not
less than five Business Days’ written notice) as the office or offices through which it
will perform its obligations under this Agreement.
	 
	 	(c)	 	“Fees Rules” means the rules on periodic fees contained in the FSA Supervision
Manual or such other law or regulation as may be in force from time to time in respect
of the payment of fees for the acceptance of deposits;
	 
	 	(d)	 	“Fee Tariffs” means the fee tariffs specified in the Fees Rules under the
activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee
required pursuant to the Fees Rules but taking into account any applicable discount
rate);
	 
	 	(e)	 	“Participating Member State” means any member state of the European Union that
adopts or has adopted the euro as its lawful currency in accordance with legislation of
the European Union relating to economic and monetary union.
	 
	 	(f)	 	“Reference Banks” means, in relation to Mandatory Cost, the principal London
offices of JPMorgan Chase Bank, N.A.
	 
	 	(g)	 	“Tariff Base” has the meaning given to it in, and will be calculated in
accordance with, the Fees Rules.
	 
	 	(h)	 	“Unpaid Sum” means any sum due and payable but unpaid by the relevant Borrower
under the Loan Documents.






	6.	 	In application of the above formulae, A, B, C and D will be included in the formulae as
percentages (i.e. 5 per cent. will be included in the formula as 5 and not as 0.05). A
negative result obtained by subtracting D from B shall be taken as zero. The resulting
figures shall be rounded to four decimal places.




 









 












	7.	 	If requested by the Agent, each Reference Bank shall, as soon as practicable after
publication by the Financial Services Authority, supply to the Agent, the rate of charge
payable by that Reference Bank to the Financial Services Authority pursuant to the Fees Rules
in respect of the relevant financial year of the Financial Services Authority (calculated for
this purpose by that Reference Bank as being the average of the Fee Tariffs applicable to that
Reference Bank for that financial year) and expressed in pounds per £1,000,000 of the Tariff
Base of that Reference Bank.
	 
	8.	 	Each Lender shall supply any information required by the Agent for the purpose of calculating
its Associated Costs Rate. In particular, but without limitation, each Lender shall supply
the following information on or prior to the date on which it becomes a Lender:






	 	(i)	 	the jurisdiction of its Facility Office; and
	 
	 	(j)	 	any other information that the Agent may reasonably require for such purpose.




Each Lender shall promptly notify the Agent of any change to the information provided by it
pursuant to this paragraph.





	9.	 	The percentages of each Lender for the purpose of A and C above and the rates of charge of
each Reference Bank for the purpose of E above shall be determined by the Agent based upon the
information supplied to it pursuant to paragraphs 7 and 8 above and on the assumption that,
unless a Lender notifies the Agent to the contrary, each Lender’s obligations in relation to
cash ratio deposits and Special Deposits are the same as those of a typical bank from its
jurisdiction of incorporation with a Facility Office in the same jurisdiction as its Facility
Office.
	 
	10.	 	The Agent shall have no liability to any person if such determination results in an
Associated Costs Rate which over or under compensates any Lender and shall be entitled to
assume that the information provided by any Lender or Reference Bank pursuant to paragraphs 3,
7 and 8 above is true and correct in all respects.
	 
	11.	 	The Agent shall distribute the additional amounts received as a result of the Mandatory Cost
to the Lenders on the basis of the Associated Costs Rate for each Lender based on the
information provided by each Lender and each Reference Bank pursuant to paragraphs 3, 7 and 8
above.
	 
	12.	 	Any determination by the Agent pursuant to this Schedule in relation to a formula, the
Mandatory Cost, an Associated Costs Rate or any amount payable to a Lender shall, in the
absence of manifest error, be conclusive and binding on all parties hereto.




The Agent may from time to time, after consultation with the relevant Borrower and the relevant
Lenders, determine and notify to all parties hereto any amendments which are required to be made to
this Schedule in order to comply with any change in law, regulation or any requirements from time
to time imposed by the Bank of England, the Financial Services Authority or the European Central
Bank




 









 







(or, in any case, any other authority which replaces all or any of its functions) and any such
determination shall, in the absence of manifest error, be conclusive and binding on all parties
hereto.