exv4w12



 





Exhibit 4.12




 





$1,334,590,863.33




TRANCHE A TERM LOAN AGREEMENT




among




FEDERAL-MOGUL CORPORATION,




as Borrower,




The Several Lenders from Time to Time Parties Hereto,




and




JPMORGAN CHASE BANK, N.A.

as Administrative Agent




Dated as of December 27, 2007




 





 









 





Table of Contents




									
	 	 	 	 	 	 	 	 	Page
	SECTION 1. DEFINITIONS	 	1
	 

	 	 	1.1	 	 	Defined Terms	 	1
	 

	 	 	1.2	 	 	Other Definitional Provisions	 	29
	 
	 	 			 		 	
	SECTION 2. AMOUNT AND TERMS OF LOANS	 	30
	 

	 	 	2.1	 	 	Loans	 	30
	 

	 	 	2.2	 	 	Repayment of Loans	 	30
	 

	 	 	2.3	 	 	Fees, etc.	 	31
	 

	 	 	2.4	 	 	Optional Prepayments	 	31
	 

	 	 	2.5	 	 	Mandatory Prepayments	 	31
	 

	 	 	2.6	 	 	Conversion and Continuation Options	 	33
	 

	 	 	2.7	 	 	Limitations on Eurodollar Tranches	 	34
	 

	 	 	2.8	 	 	Interest Rates and Payment Dates	 	34
	 

	 	 	2.9	 	 	Computation of Interest and Fees	 	34
	 

	 	 	2.10	 	 	Inability to Determine Interest Rate	 	35
	 

	 	 	2.11	 	 	Pro Rata Treatment and Payments	 	35
	 

	 	 	2.12	 	 	Requirements of Law	 	36
	 

	 	 	2.13	 	 	Taxes	 	37
	 

	 	 	2.14	 	 	Indemnity	 	39
	 
	 	 			 		 	
	SECTION 3. REPRESENTATIONS AND WARRANTIES	 	40
	 

	 	 	3.1	 	 	Financial Condition	 	40
	 

	 	 	3.2	 	 	No Change	 	41
	 

	 	 	3.3	 	 	Existence; Compliance With Law	 	41
	 

	 	 	3.4	 	 	Power; Authorization; Enforceable Obligations	 	41
	 

	 	 	3.5	 	 	No Legal Bar	 	42
	 

	 	 	3.6	 	 	Litigation	 	42
	 

	 	 	3.7	 	 	No Default	 	42
	 

	 	 	3.8	 	 	Ownership of Property; Liens	 	42
	 

	 	 	3.9	 	 	Intellectual Property	 	42
	 

	 	 	3.10	 	 	Taxes	 	42
	 

	 	 	3.11	 	 	Investment Company Act; Other Regulations	 	42
	 

	 	 	3.12	 	 	Subsidiaries	 	43
	 

	 	 	3.13	 	 	Accuracy of Information, etc.	 	43
	 

	 	 	3.14	 	 	Security Documents	 	43
	 

	 	 	3.15	 	 	Regulation H	 	44
	 

	 	 	3.16	 	 	Environmental Matters	 	44
	 

	 	 	3.17	 	 	Certain Documents	 	45
	 
	 	 			 		 	
	SECTION 4. CONDITIONS PRECEDENT	 	45
	 

	 	 	4.1	 	 	Conditions to Closing Date	 	45






 









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page
	SECTION 5. AFFIRMATIVE COVENANTS	 	50
	 

	 	 	5.1	 	 	Financial Statements	 	50
	 

	 	 	5.2	 	 	Certificates; Other Information	 	51
	 

	 	 	5.3	 	 	Payment of Obligations	 	52
	 

	 	 	5.4	 	 	Maintenance of Existence; Compliance	 	53
	 

	 	 	5.5	 	 	Maintenance of Property; Insurance	 	53
	 

	 	 	5.6	 	 	Inspection of Property; Books and Records; Discussions	 	53
	 

	 	 	5.7	 	 	Notices	 	53
	 

	 	 	5.8	 	 	Environmental Laws	 	54
	 

	 	 	5.9	 	 	Additional Collateral, Additional Loan Parties, etc.	 	55
	 

	 	 	5.10	 	 	Post-Closing Obligations	 	57
	 
	 	 	 	 	 		 	
	SECTION 6. NEGATIVE COVENANTS	 	57
	 

	 	 	6.1	 	 	Financial Condition Covenants	 	57
	 

	 	 	6.2	 	 	Indebtedness	 	58
	 

	 	 	6.3	 	 	Liens	 	61
	 

	 	 	6.4	 	 	Fundamental Changes	 	63
	 

	 	 	6.5	 	 	Disposition of Property	 	64
	 

	 	 	6.6	 	 	Restricted Payments	 	65
	 

	 	 	6.7	 	 	Capital Expenditures	 	66
	 

	 	 	6.8	 	 	Investments	 	66
	 

	 	 	6.9	 	 	Optional Payments and Modifications of Certain Debt Instruments	 	69
	 

	 	 	6.10	 	 	Transactions with Affiliates	 	69
	 

	 	 	6.11	 	 	Sales And Leasebacks	 	70
	 

	 	 	6.12	 	 	Swap Agreements	 	70
	 

	 	 	6.13	 	 	Changes in Fiscal Periods	 	70
	 

	 	 	6.14	 	 	Negative Pledge Clauses	 	70
	 

	 	 	6.15	 	 	Clauses Restricting Subsidiary Distributions	 	70
	 

	 	 	6.16	 	 	Lines of Business	 	71
	 

	 	 	6.17	 	 	[Reserved]	 	71
	 

	 	 	6.18	 	 	Positive EBITDA Variance	 	71
	 
	 	 	 	 	 		 	
	SECTION 7. EVENTS OF DEFAULT	 	71
	 
	 	 	 	 	 		 	
	SECTION 8. THE ADMINISTRATIVE AGENT	 	74
	 

	 	 	8.1	 	 	Appointment	 	74
	 

	 	 	8.2	 	 	Delegation of Duties	 	75
	 

	 	 	8.3	 	 	Exculpatory Provisions	 	75
	 

	 	 	8.4	 	 	Reliance by Administrative Agent	 	75
	 

	 	 	8.5	 	 	Notice of Default	 	75
	 

	 	 	8.6	 	 	Non-Reliance on Administrative Agent and Other Lenders	 	76
	 

	 	 	8.7	 	 	Indemnification	 	76
	 

	 	 	8.8	 	 	Administrative Agent in Its Individual Capacity	 	77
	 

	 	 	8.9	 	 	Successor Administrative Agent	 	77
	 
	 	 	 	 	 		 	
	SECTION 9. MISCELLANEOUS	 	77
	 

	 	 	9.1	 	 	Amendments and Waivers	 	77






ii









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page
	 

	 	 	9.2	 	 	Notices	 	78
	 

	 	 	9.3	 	 	No Waiver; Cumulative Remedies	 	79
	 

	 	 	9.4	 	 	Survival of Representations and Warranties	 	79
	 

	 	 	9.5	 	 	Payment of Expenses and Taxes	 	79
	 

	 	 	9.6	 	 	Successors and Assigns; Participations and Assignments	 	80
	 

	 	 	9.7	 	 	Adjustments; Set off	 	83
	 

	 	 	9.8	 	 	Counterparts	 	84
	 

	 	 	9.9	 	 	Severability	 	84
	 

	 	 	9.10	 	 	Integration	 	84
	 

	 	 	9.11	 	 	GOVERNING LAW	 	84
	 

	 	 	9.12	 	 	Submission To Jurisdiction; Waivers	 	84
	 

	 	 	9.13	 	 	Acknowledgements	 	85
	 

	 	 	9.14	 	 	No Requirement of Lender Signatures	 	85
	 

	 	 	9.15	 	 	Releases of Guarantees and Liens	 	85
	 

	 	 	9.16	 	 	Confidentiality	 	86
	 

	 	 	9.17	 	 	WAIVERS OF JURY TRIAL	 	86






iii









 






	 	 	 
	SCHEDULES:

	Schedule 1.1A

	 	Loans
	Schedule 1.1B

	 	Foreign Pledge Agreements
	Schedule 1.1C

	 	Intercompany Loans Owed to U.K. Subsidiaries
	Schedule 1.1D

	 	Joint Ventures
	Schedule 1.1E

	 	Mortgaged Property
	Schedule 1.1F

	 	Certain Elements of the Collateral Structure
	Schedule 1.1G

	 	U.K. Subsidiaries Subject to Dissolution
	Schedule 1.1H

	 	Tax Restructuring
	Schedule 1.1I

	 	Non-Guarantor Domestic Subsidiaries
	Schedule 3. 4

	 	Consents, Authorizations, Filings and Notices
	Schedule 3.6

	 	Litigation
	Schedule 3.12

	 	Subsidiaries
	Schedule 3.14(a)

	 	Perfection Actions
	Schedule 3.14(b)

	 	Mortgage Filing Jurisdictions
	Schedule 3.16

	 	Environmental Matters
	Schedule 4.1

	 	Inventory Locations
	Schedule 5.10

	 	Restructuring Foreign Subsidiaries
	Schedule 6.2(f)

	 	Existing Indebtedness
	Schedule 6.3(f)

	 	Existing Liens
	Schedule 6.8(l)

	 	Investments






	 	 	 
	EXHIBITS:

	Exhibit A

	 	Form of Collateral Agreement
	Exhibit B

	 	Form of Domestic Subsidiary Guarantee
	Exhibit C

	 	Form of Collateral Trust Agreement
	Exhibit D

	 	Form of Compliance Certificate
	Exhibit E

	 	Form of Intercreditor Agreement
	Exhibit F

	 	Form of Mortgage
	Exhibit G

	 	Form of Assignment and Assumption
	Exhibit H

	 	Form of Legal Opinion of Counsel to the Parties
	Exhibit I

	 	Form of Exemption Certificate






iv









 






          TRANCHE A TERM LOAN AGREEMENT, dated as of December 27, 2007, among Federal-Mogul Corporation,
a Delaware corporation (the “Borrower”), the several banks and other financial institutions
or entities from time to time parties to this Agreement (the “Lenders”), and JPMORGAN CHASE
BANK, N.A., as administrative agent.




Introductory Statement




          On October 1, 2001 (the “Petition Date”), the Borrower and certain of its domestic
Subsidiaries (collectively, the “U.S. Debtors”) filed voluntary petitions under Chapter 11
of Title 11 of the United States Code (the “Bankruptcy Code”) with the United States
Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”) and continued in the
possession of their assets and in the management of their businesses pursuant to Sections 1107 and
1108 of the Bankruptcy Code.




          On November 21, 2006, the U.S. Debtors, together with certain subsidiaries of the Borrower
organized under the laws of the United Kingdom (collectively, the “Debtors”), filed the
Reorganization Plan; and




          On November 8, 2007, the Bankruptcy Court entered the Confirmation Order.




          On November 14, 2007, the District Court affirmed the Confirmation Order.




          In connection with the confirmation and implementation of the Reorganization Plan, and in
partial satisfaction of the Bank Claims and Surety Claims (as each is defined in the Reorganization
Plan), the holders of the Bank Claims and Surety Claims shall automatically become parties to this
Agreement on the Effective Date.




          Accordingly, the parties hereto hereby agree as follows:




SECTION 1. DEFINITIONS




          1.1 Defined Terms. As used in this Agreement, the terms listed in this Section 1.1
shall have the respective meanings set forth in this Section 1.1.




          “ABR”: for any day, a rate per annum (rounded upwards, if necessary, to the next 1/16
of 1%) equal to the greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. For purposes hereof: “Prime Rate”:
the rate of interest per annum publicly announced from time to time by JPMCB as its prime rate in
effect at its principal office in New York City (the Prime Rate not being intended to be the lowest
rate of interest charged by JPMCB in connection with extensions of credit to debtors). Any change
in the ABR due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective
as of the opening of business on the effective day of such change in the Prime Rate or the Federal
Funds Effective Rate, respectively.




          “ABR Loans”: Loans the rate of interest applicable to which is based upon the ABR.




 









 








          “Acquisition”: any acquisition or series of related acquisitions (including without
limitation, Investments) by any Group Member of (a) more than 50% of the voting stock of any
Person, (b) all or substantially all of the Capital Stock, or substantially all of the assets, of
any Person, or (c) all or substantially all of the assets constituting a division or business line
of any Person.




          “Additional Liquidity Facility”: a credit or loan facility or facilities provided to
one or more other Group Members, and any refinancing, refunding, renewal or extension thereof in
accordance with Section 6.2(v), provided that such facility or facilities (a) (i) shall be provided
on terms which are not unreasonable and reflect market conditions in the banking or capital
markets, as applicable, prevailing at the time of incurrence of such facility or facilities for
comparable companies in the same industry as the Borrower and its Subsidiaries with long-term debt
ratings by S&P and Moody’s equivalent to the long-term debt ratings of the Borrower, (ii) shall in
no event require any repayments or prepayments thereof at any time prior to the Maturity Date and
(iii) if they are secured, any Liens securing them shall be subject to Lien subordination
provisions no less favorable to the Lenders than the terms of the subordination of the “Third
Priority Liens” referred to in the Intercreditor Agreement, and (b) shall not be provided by an
Affiliate of any Group Member or of any Significant Shareholder unless such facility is or
facilities are (x) provided upon fair and reasonable terms no less favorable to the relevant Group
Member than it would obtain in a comparable arm’s length transaction with a Person that is not an
Affiliate of any Group Member or of any Significant Shareholder and (y) not available after a good
faith effort by the Group Members to obtain such facility or facilities from a financial
institution that is not an Affiliate of any Group Member or of any Significant Shareholder.




          “Additional Liquidity Facility Agreement”: the credit, loan or other agreement
entered into by one or more Group Members governing any Additional Liquidity Facility, together
with all instruments and other agreements entered into by any Group Member in connection therewith,
as the same may be amended, supplemented or otherwise modified from time to time in accordance with
Section 6.9.




          “Adjusted Excess Cash Flow”: as defined in the Intercreditor Agreement.




          “Adjusted Positive EBITDA Variance”: as defined in the Intercreditor Agreement.




          “Administrative Agent”: JPMCB, as the administrative agent for the Lenders under this
Agreement and the other Loan Documents, together with any of its successors.




          “Affiliate”: as to any Person, any other Person that, directly or indirectly, is in
control of, is controlled by, or is under common control with, such Person. For purposes of this
definition, “control” of a Person means the power, directly or indirectly, to direct or cause the
direction of the management and policies of such Person, whether by contract or otherwise.




          “Agreement”: this Tranche A Term Loan Agreement, as the same may from time to time be
amended, restated, modified or supplemented.




          “Anticipated Japanese Consolidation”: with respect to three of the Japanese
manufacturing, technical and distribution facilities of the Borrower and its Subsidiaries, that are





2









 







related primarily to the Borrower’s and its Subsidiaries’ System Protection Group and
Aftermarket operations, the anticipated consolidation of such facilities into one facility that
will be located in Japan.




          “Applicable Amount”: (i) with respect to Adjusted Excess Cash Flow for any fiscal
year, the applicable amount thereof required to be applied to the Loans hereunder determined
pursuant to Section 4.4(a)(i) of the Intercreditor Agreement and (ii) with respect to Adjusted
Positive EBITDA Variance for any fiscal year, the applicable amount thereof required to be applied
to the Loans hereunder determined pursuant to Section 4.4(a)(ii) of the Intercreditor Agreement.




          “Applicable Margin”: for each Type of Loan, the rate per annum set forth under the
relevant column heading below for the periods set forth below:




	 	 	 	 	 	 	 	 	 
	Period	 	ABR Loans	 	Eurodollar Loans
	Closing Date through September 30, 2009
	 	 	2.0	%	 	 	3.0	%
	December 31, 2009 through September 30,
2010
	 	 	2.25	%	 	 	3.25	%
	December 31, 2010 and thereafter
	 	 	4.0	%	 	 	5.0	%






          “Approved Fund”: as defined in Section 9.6(b).




          “Asset Sale”: any Disposition of property or series of related Dispositions of
property excluding (i) any such Disposition permitted by any clause of Section 6.5 other than
clause (g) and (ii) any other Disposition or series of related Dispositions so long as the Net Cash
Proceeds to all Group Members therefrom (valued at the initial principal amount thereof in the case
of non-cash proceeds consisting of notes or other debt securities and valued at fair market value
in the case of other non-cash proceeds) do not exceed (x) $10,000,000 for any single Disposition or
series of related Dispositions and (y) $50,000,000 in any fiscal year for all Dispositions and
series of related Dispositions excluded pursuant to subclause (x) of this clause (ii).




          “Assignee” as defined in Section 9.6(b).




          “Assignment and Assumption”: an Assignment and Assumption, substantially in the form
of Exhibit G.




          “Bankruptcy Code”: as defined in the introductory statement hereto.




          “Bankruptcy Court”: as defined in the introductory statement hereto.




          “Benefitted Lender”: as defined in Section 9.7(a).




          “Board”: the Board of Governors of the Federal Reserve System of the United States
(or any successor).




          “Board-Approved Investment”: an Investment made pursuant to Section 6.8(t).




3









 








          “Board Majority”: in respect of any action of the board of directors of the Borrower,
a majority of the directors on the board of directors of the Borrower constituting a quorum,
present and voting with respect to such action, where a quorum is no less than a majority of the
total number of directors constituting the board of directors of the Borrower as such total number
is designated by the By-Laws and Certificate of Incorporation of the Borrower.




          “Borrower”: as defined in the preamble hereto.




          “Business Day”: a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close, provided that with respect to
notices and determinations in connection with, and payments of principal and interest on,
Eurodollar Loans, such day is also a day for trading by and between banks in Dollar deposits in the
interbank eurodollar market.




          “Capital Expenditures”: for any period, with respect to any Person, the aggregate of
all expenditures by such Person and its Subsidiaries for the acquisition or leasing (pursuant to a
capital lease) of fixed or capital assets or additions to equipment (including replacements,
capitalized repairs and improvements during such period) that should be capitalized under GAAP on a
consolidated balance sheet of such Person and its Subsidiaries; provided that any Permitted
Acquisitions shall in no event constitute Capital Expenditures.




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




          “Capital Stock”: any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation) and any and all warrants, rights or options to purchase any
of the foregoing.




          “Cash Equivalents”: (a) marketable direct obligations issued by, or unconditionally
guaranteed by, the United States Government or issued by any agency thereof and backed by the full
faith and credit of the United States, in each case maturing within one year from the date of
acquisition; (b) certificates of deposit, time deposits, eurodollar time deposits or overnight bank
deposits having maturities of one year or less from the date of acquisition issued by any Lender or
by any commercial bank organized under the laws of the United States or any state thereof having
combined capital and surplus of not less than $500,000,000; (c) commercial paper of an issuer rated
at least A-1 by S&P or P-1 by Moody’s, or carrying an equivalent rating by a nationally recognized
rating agency, and maturing within one year from the date of acquisition; (d) repurchase
obligations of any Lender or of any commercial bank satisfying the requirements of clause (b) of
this definition, having a term of not more than 30 days, with respect to securities issued or fully
guaranteed or insured by the United States government; (e) securities with maturities of one year
or less from the date of acquisition





4









 







issued or fully guaranteed by any state, commonwealth or territory of the United States, by
any political subdivision or taxing authority of any such state, commonwealth or territory or by
any foreign government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be) are rated at least A by
S&P or A by Moody’s; (f) securities with maturities of one year or less from the date of
acquisition backed by standby letters of credit issued by any Lender or any commercial bank
satisfying the requirements of clause (b) of this definition; (g) money market mutual or similar
funds that invest exclusively in assets satisfying the requirements of clauses (a) through (f) of
this definition; (h) money market funds that (i) comply with the criteria set forth in SEC Rule
2a-7 under the Investment Company Act of 1940, as amended, (ii) are rated AAA by S&P and Aaa by
Moody’s and (iii) have portfolio assets of at least $5,000,000,000; (i) debt securities of an
issuer rated at least A-1 by S&P or P-1 by Moody’s, or carrying an equivalent rating by a
nationally recognized rating agency, and (j) solely with respect to any Foreign Subsidiary, in
addition to the investments described in clauses (a) through (i), any investment of the type
described in clause (a) issued or unconditionally guaranteed by any sovereign nation in which such
Foreign Subsidiary conducts any operations, any investment of the type and maturity described in
clause (b) issued by any commercial bank organized under the laws of any country in which such
Foreign Subsidiary conducts any operations, any investment of the type and maturity described in
clause (c) or clause (e) that has ratings issued by any internationally recognized rating agency
equivalent to those set forth in such clause and any investment of the type described in clause (g)
that satisfies the requirements of any of the other investments described in this clause (j).




          “Change of Control” shall mean:




          (a) at any time any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) other than Permitted Holders
shall become the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange
Act), directly or indirectly, of more than 50% of the aggregate outstanding Class A Common Stock
and Class B Common Stock; or




          (b) at any time during which Thornwood holds any Class A Common Stock, (i) the aggregate
amount of Class A Common Stock held by Thornwood shall be less than 66 2/3% of the aggregate amount
of Class A Common Stock held by Thornwood on the Effective Date and (ii) a person or group (other
than the Permitted Holders) shall be the beneficial owner of at least 35% of the aggregate
outstanding Class A Common Stock and Class B Common Stock; or




          (c) at any time (i) the majority of the seats on the board of directors of the Borrower is
occupied by Persons who were neither (x) nominated or appointed by the board of directors of the
Borrower as of the Closing Date nor (y) appointed or nominated by directors described in clause (x)
and (ii) a person or group (other than the Permitted Holders) shall be the beneficial owner of at
least 35% of the aggregate outstanding Class A Common Stock and Class B Common Stock; or




          (d) a Specified Change of Control.




5









 








          For the avoidance of doubt, in no event shall any direct or indirect transfer of any Class A
Common Stock or any other Capital Stock of the Borrower, by Thornwood or any of its Affiliates to
any Affiliate of Thornwood or to Thornwood, give rise to or be deemed a “Change of Control”
hereunder.




          “Class A Common Stock”: the Class A Common Stock, par value $0.01 per share of the
Borrower.




          “Class B Common Stock”: the Class B Common Stock, par value $0.01 per share of the
Borrower.




          “Closing Date”: the date on which the conditions precedent set forth in Section 4.1
shall have been satisfied or waived, which date is December 27, 2007.




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




          “Collateral”: all property of the Loan Parties, now owned or hereafter acquired, upon
which a Lien is purported to be created by any Security Document.




          “Collateral Agreement”: the Collateral Agreement to be executed and delivered by the
Borrower and each Guarantor, substantially in the form of Exhibit A.




          “Collateral Trust Agreement”: a Collateral Trust Agreement to be executed and
delivered by the Borrower, each Guarantor and the Collateral Trustee, substantially in the form of
Exhibit C.




          “Collateral Trustee”: Citibank, N.A., in its capacity as collateral trustee under the
Collateral Trust Agreement, together with any of its successors.




          “Commonly Controlled Entity”: an entity, whether or not incorporated, that is under
common control with the Borrower within the meaning of Section 4001 of ERISA or is part of a group
that includes the Borrower and that is treated as a single employer under Section 414 of the Code.




          “Company Voluntary Arrangements”: collectively, (i) the proposals dated June 23, 2006
for company voluntary arrangements in respect of T&N Limited, a company incorporated in England and
Wales and a Subsidiary of the Borrower, and forty-eight other U.K. Subsidiaries which are Group
Members, and (ii) the proposals dated June 23, 2006 for company voluntary arrangements in respect
of Federal-Mogul Global Growth Limited, a company organized under the laws of England, and F-M UK
Holding Limited, a company organized under the laws of England, which proposals in each case became
effective in accordance with the laws of England and Wales on October 11, 2006.




          “Compliance Certificate”: a certificate duly executed by a Responsible Officer
substantially in the form of Exhibit D.




6









 








          “Confirmation Order”: that certain order confirming the Reorganization Plan pursuant
to applicable sections of the Bankruptcy Code entered by the Bankruptcy Court on November 8, 2007
and affirmed by the District Court on November 14, 2007.




          “Consolidated Amortization”: for any period, the aggregate amount of scheduled
payments required to be made during such period on account of principal of Indebtedness of Group
Members (including without limitation, scheduled principal payments in respect of the Indebtedness
under the Exit Facility and the Loans and payments of revolving loans accompanying scheduled
reductions of the corresponding commitments, but excluding (x) any scheduled principal payments in
respect of Specified Indebtedness and (y) any final scheduled principal payment in respect of
Indebtedness (other than Specified Indebtedness); provided, however, for purposes of calculating
Consolidated Amortization for any period of four fiscal quarters which includes the final scheduled
principal payment of any such Indebtedness, Consolidated Amortization shall be deemed to include an
amount equal to the scheduled principal payment immediately preceding such date of final scheduled
principal payment in lieu of the final scheduled principal payment).




          “Consolidated Debt Service Coverage Ratio”: on the last day of any fiscal quarter of
the Borrower, the ratio of (a) Consolidated EBITDA for the period of four fiscal quarters ending on
such day, less the aggregate amount of Capital Expenditures incurred by the Group Members during
such period in accordance with GAAP (excluding the principal amount of Indebtedness incurred in
connection with such Capital Expenditures and any such Capital Expenditures financed with the
proceeds of any Reinvestment Deferred Amount or Positive EBITDA Variance) to (b) the sum of (i)
Consolidated Interest Expense for the period of four fiscal quarters ending on such day, (ii)
Consolidated Amortization for the immediately succeeding four fiscal quarters of the Borrower and
(iii) the aggregate amount of dividends paid on any class of the Borrower’s Capital Stock during
the period of four fiscal quarters ending on such day.




          “Consolidated EBITDA”: for any period, Consolidated Net Income for such period plus,
without duplication and to the extent reflected as a charge in the statement of such Consolidated
Net Income for such period, the sum of (a) depreciation expense, (b) amortization expense, (c)
expenses or losses resulting from LIFO adjustments for inventory valuation in accordance with GAAP,
(d) income tax expense, (e) interest expense, (f) extraordinary losses, (g) any non-recurring
charge or restructuring charge which in accordance with GAAP is excluded from the calculation of
operating income, provided that the amounts referred to in this clause (g) shall not
exceed, for any such charges which could reasonably be expected to become a cash expenditure at any
time, (i) $60,000,000 in cash costs for 2007, (ii) $50,000,000 in cash costs for 2008 and (iii)
$40,000,000 in cash costs for any fiscal year of the Borrower thereafter, (h) the cumulative effect
of any changes in accounting principles, as shown on the Borrower’s consolidated statement of
income for such period, (i) amounts payable under any key employee retention program implemented
during the Chapter 11 cases of the U.S. Debtors, (j) any pension contribution expense in respect of
defined benefit plans, (k) any non-recurring Chapter 11 expenses and (l) any other non-cash charges
not included in operating income or in clauses (f) or (g) and minus, to the extent included in the
statement of such Consolidated Net Income for such period, the sum of (i) interest income, (ii)
extraordinary gains, (iii) any income tax credits (to the extent not netted from income tax
expense), (iv) any income resulting from LIFO adjustments or





7









 







inventory valuation in accordance with GAAP, (v) any pension income and gains in respect of
defined benefit plans, (vi) any other non-cash income or gains, and (vii) the income, if any,
attributable to Minority Interests, all as determined on a consolidated basis. In addition,
“Consolidated EBITDA” for any period including the first four full fiscal quarters following the
Closing Date shall be subject to any adjustment with respect to such quarters required to be made
by the Borrower’s independent certified public accountants as a result of “fresh start” accounting
and set forth in reasonable detail in a certificate of a Responsible Officer delivered to the
Administrative Agent, and, with respect to the four fiscal quarter period prior to the Closing Date
Consolidated EBITDA shall be so adjusted on a pro forma basis as though the Reorganization Plan had
become effective on the first day of such period.




          “Consolidated Interest Expense”: for any period, the consolidated cash interest
expense of the Group Members for such period (but excluding any such interest expense in respect of
Specified Indebtedness and any upfront fees paid with respect to the debt financings evidenced by
the Exit Facility Agreement, this Agreement as in effect on the Closing Date and the Senior
Subordinated Notes Indenture as in effect on the Closing Date), determined on a consolidated basis
in accordance with GAAP, less interest income.




          “Consolidated Net Income”: for any period, the consolidated net income (or loss) of
the Group Members, determined on a consolidated basis in accordance with GAAP; provided that there
shall be excluded the income (or loss) of any Subsidiary accrued prior to the date it becomes a
Subsidiary or is merged into or consolidated with any Group Member.




          “Consolidated Senior Debt”: all Consolidated Total Debt other than the Senior
Subordinated Notes and Permitted Subordinated Indebtedness.




          “Consolidated Senior Leverage Ratio”: as of the last day of any period of four
consecutive fiscal quarters, the ratio of (a) Consolidated Senior Debt on such day, less the
aggregate amount of unrestricted cash and Cash Equivalents of the Group Members on such day in
excess of Minimum Cash on such day to (b) Consolidated EBITDA for such period.




          “Consolidated Total Debt”: at any date, the sum of (a) the aggregate principal amount
of all Indebtedness of the Group Members at such date, determined on a consolidated basis,
plus (b) the aggregate amount of all obligations incurred under all Securitization
Transactions by the Borrower or any Domestic Subsidiary that would be characterized as principal
determined on a consolidated basis in accordance with GAAP if structured as a secured lending
transaction rather than a purchase, minus (c) Specified Indebtedness.




          “Contractual Obligation”: as to any Person, any provision of any security issued by
such Person or of any agreement, instrument or other undertaking to which such Person is a party or
by which it or any of its property is bound; provided that such security, agreement,
instrument or undertaking requires aggregate payments by such Person of at least $75,000,000
pursuant to the terms thereof.




          “Debtors”: as defined in the introductory statement hereto.




          “Default”: any of the events specified in Section 7, whether or not any requirement
for the giving of notice, the lapse of time, or both, has been satisfied.




8









 








          “DIP Facility”: the credit facilities provided to the Borrower and certain of its
Subsidiaries pursuant to the Credit and Guaranty Agreement, dated as of November 23, 2005, among
the Borrower, the Subsidiaries of the Borrower party thereto, the lenders from time to time party
thereto and Citicorp USA, Inc., as administrative agent for such lenders, as amended from time to
time, together with all instruments and other agreements entered into by any Group Member in
connection therewith.




          “Disclosure Statement”: the Disclosure Statement, in the form approved by the
Bankruptcy Court on June 4, 2004, and as supplemented by that certain Supplemental Disclosure
Statement Describing Fourth Amended Joint Plan of Reorganization dated February 7, 2007, describing
the Reorganization Plan and distributed to the Lenders and other parties in interest in connection
with voting on the Reorganization Plan.




          “Disinterested Director”: as to any Significant Shareholder, any member of the board
of directors of a Group Member who (a) is “disinterested” under applicable state corporate law in a
transaction with any Affiliate of such Significant Shareholder which is subject of board approval,
and (b) would be independent and eligible to serve on an audit committee (for purposes of Sections
303A.02 and 303A.06 of the New York Stock Exchange Listed Company Manual, as in effect on the date
hereof) of such Significant Shareholder or of any company in which such Significant Shareholder
beneficially owns 15% or more of the voting power to the extent that would be required if such
Significant Shareholder or any such company were a public reporting company listed on the New York
Stock Exchange.




          “Disposition”: with respect to any property, any sale, lease, sale and leaseback,
assignment, conveyance, transfer or other disposition thereof. The terms “Dispose” and
“Disposed of” shall have correlative meanings.




          “District Court”: the United States District Court for the District of Delaware or
the unit thereof having jurisdiction over the matter in question.




          “Dollars” and “$”: dollars in lawful currency of the United States.




          “Domestic Subsidiary”: any Subsidiary of the Borrower organized under the laws of any
jurisdiction within the United States.




          “Domestic Subsidiary Guarantee”: the Domestic Subsidiary Guarantee to be executed and
delivered by each Guarantor that is a Domestic Subsidiary (other than any Non-Guarantor Domestic
Subsidiary), substantially in the form of Exhibit B.




          “Effective Date”: December 27, 2007, being the date on which the Reorganization Plan
became effective as provided therein.




          “Environmental Laws”: any and all laws, rules, orders, regulations, statutes,
ordinances, guidelines, codes, decrees, requirements of any Governmental Authority or other
Requirements of Law (including without limitation, common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of human health or the environment, or
employee safety, as has been, is now or may at any time hereafter be in effect.




9









 








          “Environmental Permits”: any and all permits, licenses, approvals, registrations,
notifications, exemptions and other authorizations required under any Environmental Law.




          “Equity Proceeds”: the Net Cash Proceeds of any issuance of Capital Stock by the
Borrower.




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




          “Eurocurrency Reserve Requirements”: for any day as applied to a Eurodollar Loan, the
aggregate (without duplication) of the maximum rates (expressed as a decimal fraction) of reserve
requirements in effect on such day (including basic, supplemental, marginal and emergency reserves)
under any regulations of the Board or other Governmental Authority having jurisdiction with respect
thereto dealing with reserve requirements prescribed for eurocurrency funding (currently referred
to as “Eurocurrency Liabilities” in Regulation D of the Board) maintained by a member bank of the
Federal Reserve System.




          “Eurodollar Base Rate”: with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, the rate per annum determined on the basis of the rate for
deposits in Dollars for a period equal to such Interest Period commencing on the first day of such
Interest Period appearing on Page 3750 of the Telerate screen as of 11:00 A.M., London time, two
Business Days prior to the beginning of such Interest Period. In the event that such rate does not
appear on Page 3750 of the Telerate screen (or otherwise on such screen), the “Eurodollar Base
Rate” shall be determined by reference to such other comparable publicly available service for
displaying eurodollar rates as may be selected by the Administrative Agent or, in the absence of
such availability, by reference to the rate at which the Administrative Agent is offered Dollar
deposits at or about 11:00 A.M., New York City time, two Business Days prior to the beginning of
such Interest Period in the interbank eurodollar market where its eurodollar and foreign currency
and exchange operations are then being conducted for delivery on the first day of such Interest
Period for the number of days comprised therein.




          “Eurodollar Loans”: Loans the rate of interest applicable to which is based upon the
Eurodollar Rate.




          “Eurodollar Rate”: with respect to each day during each Interest Period pertaining to
a Eurodollar Loan, a rate per annum determined for such day in accordance with the following
formula (rounded upward to the nearest 1/100th of 1%):




Eurodollar Base Rate



 



1.00 — Eurocurrency Reserve Requirements




          “Eurodollar Tranche”: the collective reference to Eurodollar Loans, the then current
Interest Periods with respect to all of which begin on the same date and end on the same later
date.




          “Event of Default”: any of the events specified in Section 7, provided that
any requirement for the giving of notice, the lapse of time, or both, has been satisfied.




10









 








          “Excluded Subsidiary”: (i) any Foreign Subsidiary and any Domestic Subsidiary which
is a Subsidiary of a Foreign Subsidiary in respect of which either (a) the pledge of more than 66%
of the Capital Stock of such Foreign Subsidiary (or, in the case of a Domestic Subsidiary which is
a Subsidiary of a Foreign Subsidiary, the pledge of any Capital Stock of such Domestic Subsidiary)
as Collateral or (b) the guaranteeing by such Subsidiary of, or the pledging of assets by such
Subsidiary to secure, the Obligations, would, in the good faith judgment of the Borrower, result in
adverse tax consequences to any Group Member or would be unlawful for such Subsidiary and (ii) FM
International, LLC, so long as 66% of its Capital Stock is pledged under the Security Documents and
such entity has no operations other than holding the Capital Stock of any Foreign Subsidiary.




          “Exit Facility”: the revolving credit and/or other facility provided to one or more
Group Members on the Effective Date pursuant to the Exit Facility Agreement, and any refinancing,
replacement, refunding, renewal or extension thereof in accordance with Section 6.2(o).




          “Exit Facility Agreement”: the Term Loan and Revolving Credit Agreement, dated as of
the date hereof, among the Borrower, the lenders party thereto, and Citicorp USA, Inc., as
administrative agent, together with all instruments and other agreements entered into by any Group
Member in connection therewith, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with Section 6.9.




          “Factoring Arrangements”: any arrangements between an Excluded Subsidiary and a third
party (other than an Affiliate) under which the Receivables of such Excluded Subsidiary are
factored on a non-recourse basis.




          “Factoring Basket”: on any date, an amount equal to the greater of (i) $400,000,000
and (ii) $400,000,000 times the Factoring Growth Rate on such date.




          “Factoring Growth Rate”: on any date, the ratio of (i) the collective sales of the
Group Members outside of the United States for the period of twelve consecutive months most
recently ended prior to such date and for which such figure has been reported by the Borrower to
the Administrative Agent, expressed at the Borrower’s accounting rate as in effect on the last day
of such period (which accounting rate shall be determined by the Borrower in good faith consistent
with the manner in which such rate has been determined by the Borrower prior to the Closing Date)
to (ii) $3,000,000,000.




          “Fair Market Consideration”: with respect to any Acquisition, the aggregate fair
market value of all consideration paid or payable by the Group Members, including (x) the fair
market value of any Investments made in the subject Person or in such assets subject of such
Acquisition and (y) the incurrence by the Group Members of any Indebtedness associated therewith,
but excluding the fair market value of any Capital Stock of any Group Members included in any such
consideration.




          “Federal Funds Effective Rate”: for any day, the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published on the next succeeding Business Day by the Federal Reserve





11









 







Bank of New York, or, if such rate is not so published for any day that is a Business Day, the
average of the quotations for the day of such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by it.




          “F-M Canada”: Federal-Mogul Canada Limited, a Canadian corporation.




          “Foreign Credit Facilities”: credit facilities to be made available to Excluded
Subsidiaries of the Borrower to fund their respective operations; provided that such credit
facilities are not secured by any assets of any Loan Party.




          “Foreign Pledge Agreements”: the collective reference to (a) the pledge agreements
described on Schedule 1.1B and (b) any other pledge agreement, in form and substance reasonably
satisfactory to the Administrative Agent, pursuant to which shares of Foreign Subsidiaries may be
pledged from time to time.




          “Foreign Subsidiary”: a Subsidiary which is incorporated or organized under the laws
of a jurisdiction outside of the United States.




          “Foreign Subsidiary Guarantees”: any guarantee, in form and substance reasonably
satisfactory to the Administrative Agent, by a Foreign Subsidiary of the Obligations that may be
executed and delivered to the Collateral Trustee, including without limitation pursuant to Sections
5.9(e).




          “GAAP”: generally accepted accounting principles in the United States as in effect
from time to time, except that for purposes of Section 6.1, GAAP shall be determined on the basis
of such principles in effect on the date hereof and consistent with those used in the preparation
of the most recent audited financial statements referred to in Section 3.1(b). In the event that
any “Accounting Change” (as defined below) shall occur and such change results in a material change
in the method of calculation of financial covenants, standards or terms in this Agreement, then the
Borrower and the Administrative Agent agree to enter into negotiations in order to amend such
provisions of this Agreement so as to reflect equitably such Accounting Changes with the desired
result that the criteria for evaluating the Borrower’s financial condition shall be the same after
such Accounting Changes as if such Accounting Changes had not been made. Until such time as such
an amendment shall have been executed and delivered by the Borrower, the Administrative Agent and
the Required Lenders, all financial covenants, standards and terms in this Agreement shall continue
to be calculated or construed as if such Accounting Changes had not occurred. “Accounting Changes”
refers to changes in accounting principles required by the promulgation of any rule, regulation,
pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of
Certified Public Accountants or, if applicable, the SEC.




          “General Investment Basket”: at any date, an amount equal to (i) $250,000,000 minus
(ii) the aggregate amount of Investments made pursuant to Section 6.8(u) on or prior to such date
plus (iii) the aggregate amount of distributions of cash and Cash Equivalents with respect to any
Investment made pursuant to Section 6.8(u) that have been received on or prior to such date by the
Group Member that holds such Investment.




12









 








          “Governmental Authority”: any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative
functions of or pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance Commissioners).




          “Group Members”: the collective reference to the Borrower and its Subsidiaries.




          “Guarantee Obligation”: as to any Person (the “guaranteeing person”), any
obligation, including a reimbursement, counterindemnity or similar obligation, of the guaranteeing
Person that guarantees or in effect guarantees, or which is given to induce the creation of a
separate obligation by another Person (including any bank under any letter of credit) that
guarantees or in effect guarantees, any Indebtedness, leases, dividends or other obligations (the
“primary obligations”) of any other third Person (the “primary obligor”) in any
manner, whether directly or indirectly, including any obligation of the guaranteeing person,
whether or not contingent, (a) to purchase any such primary obligation or any property constituting
direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or
payment of any such primary obligation or (ii) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to
purchase property, securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of such primary
obligation or (d) otherwise to assure or hold harmless the owner of any such primary obligation
against loss in respect thereof; provided, however, that the term Guarantee
Obligation shall not include endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (x) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and (y) the maximum amount for
which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such
Guarantee Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability
in respect thereof as determined by the Borrower in good faith.




          “Guarantees”: the collective reference to the Foreign Subsidiary Guarantees and the
Domestic Subsidiary Guarantee.




          “Guarantor”: each Domestic Subsidiary (other than the Non-Guarantor Domestic
Subsidiaries) of the Borrower and each other Subsidiary of the Borrower that is party to a
Guarantee.




          “Indebtedness”: at any time and with respect to any Person, without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the
deferred purchase price of property or services (other than (x) current trade payables incurred in
the ordinary course of such Person’s business and (y) property, including inventory, and services
purchased, and expense accruals (other than trade payables) and deferred compensation items
arising, in each case, in the ordinary course of such Person’s business), (c) all obligations of
such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all





13









 







indebtedness created or arising under any conditional sale or other title retention agreement
with respect to property acquired by such Person (even though the rights and remedies of the seller
or lender under such agreement in the event of default are limited to repossession or sale of such
property), (e) all Capital Lease Obligations of such Person, (f) all obligations of such Person,
contingent or otherwise, as an account party or applicant under or in respect of acceptances,
letters of credit, surety bonds or similar arrangements, (g) the liquidation value of all
redeemable preferred Capital Stock of such Person which is mandatorily redeemable prior to the
Maturity Date, (h) all Guarantee Obligations of such Person in respect of obligations of the kind
referred to in clauses (a) through (g) above or (j) below, (i) all obligations of the kind referred
to in clauses (a) through (h) above or (j) below secured by (or for which the holder of such
obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property
(including accounts and contract rights) owned by such Person, whether or not such Person has
assumed or become liable for the payment of such obligation, and (j) all obligations of such Person
in respect of Swap Agreements. The Indebtedness of any Person (i) shall include the Indebtedness
of any other entity (including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person’s ownership interest in or other
relationship with such entity solely to the extent such Indebtedness is required to be reflected on
the balance sheet of such Person in accordance with GAAP and (ii) shall not include in any event
any Joint Venture Put Obligation. For avoidance of doubt, Factoring Arrangements shall not
constitute Indebtedness.




          “Insolvency”: with respect to any Multiemployer Plan, the condition that such Plan is
insolvent within the meaning of Section 4245 of ERISA.




          “Intellectual Property”: the collective reference to all rights, priorities and
privileges relating to intellectual property, whether arising under United States, multinational or
foreign laws or otherwise, including copyrights, copyright licenses, patents, patent licenses,
trademarks, trademark licenses, technology, know-how and processes, and all rights to sue at law or
in equity for any infringement or other impairment thereof, including the right to receive all
proceeds and damages therefrom.




          “Intercompany Basket”: at any date, an amount equal to (i) $500,000,000 minus (ii)
the aggregate outstanding principal amount on such date of Intercompany Loans made pursuant to
Section 6.8(h)(ii) minus (iii) the aggregate amount of Investments (other than Intercompany Loans)
made pursuant to Section 6.8(h)(ii) on or prior to such date minus (iv) the aggregate amount of
operating leases (measured on the basis of the fair market value of the assets subject thereto)
outstanding pursuant to Section 6.5(j)(iii) plus (v) the aggregate amount of distributions in cash
and Cash Equivalents with respect to any Investment (other than Intercompany Loans) made pursuant
to Section 6.8(h)(ii) that have been received on or prior to such date by the Group Member that
holds such Investment. Notwithstanding the foregoing, to the extent that an Intercompany Loan or
Investment is made in a Subsidiary that uses the proceeds of such Intercompany Loan or Investment,
substantially contemporaneously with the making of such Intercompany Loan or Investment, to make an
Investment in a Joint Venture pursuant to Section 6.8(j)(ii), such Intercompany Loan or Investment
shall not reduce the amount of the Intercompany Basket, but shall reduce the Joint Venture Basket
in the amount of such Intercompany Loan or Investment.




14









 








          “Intercompany Basket Sublimit”: at any date, an amount equal to (i) $350,000,000
minus (ii) the aggregate amount of Investments (other than Intercompany Loans) made pursuant to
Section 6.8(h)(ii) on or prior to such date plus (iii) the aggregate amount of distributions in
cash and Cash Equivalents with respect to any Investment (other than Intercompany Loans) made
pursuant to Section 6.8(h)(ii) that have been received on or prior to such date by the Group Member
that holds such Investment.




          “Intercompany Loan”: any Indebtedness for borrowed money owed by any Group Member to
any other Group Member.




          “Intercompany Loan Notes”: (i) that certain note dated June 11, 1999 and payable by
Federal-Mogul, S.A., a French company, to AE International Ltd. in the original principal amount of
142,404,240 French francs, (ii) that certain note dated August 31, 1998 and payable by
Federal-Mogul, S.A. to T&N International Ltd. in the original principal amount of 488,163,908
French francs, (iii) that certain note dated August 31, 1998 and payable by Federal-Mogul, S.A. to
AE International Ltd in the original principal amount of 904,841,256 French francs, (iv) that
certain note dated July 8, 1998 and payable by Federal-Mogul Holding Deutschland GmbH, a German
company, to AE International Ltd in the original principal amount of 126,979,412 Deutschmarks, (v)
that certain note dated July 8, 1998 and payable by Federal-Mogul Holding Deutschland GmbH to T&N
International Ltd in the original principal amount of 611,020,588 Deutschmarks, and (vi) that
certain note dated May 22, 2001 and payable by Federal Mogul S.p.A., an Italian company, to T&N
International Ltd in the original principal amount of €111,627,744.




          “Intercompany Loan Owed to U.K. Subsidiaries”: any Intercompany Loan of the Borrower
or any of its Subsidiaries other than the U.K. Subsidiaries owing to any U.K. Subsidiary and
outstanding on the Closing Date, as set forth on Schedule 1.1C.




          “Intercreditor Agreement”: the Intercreditor Agreement among the Exit Administrative
Agent referred to therein, the Administrative Agent, the PIK Trustee referred to therein, the
Collateral Trustee, the Borrower and each of the other Loan Parties party thereto, substantially in
the form of Exhibit E.




          “Interest Payment Date”: (a) as to any ABR Loan, the last day of each March, June,
September and December to occur while such Loan is outstanding and the Maturity Date, (b) as to any
Eurodollar Loan having an Interest Period of three months or less, the last day of such Interest
Period, (c) as to any Eurodollar Loan having an Interest Period longer than three months, each day
that is three months, or a whole multiple thereof, after the first day of such Interest Period and
the last day of such Interest Period and (d) as to any Loan, the date of any repayment or
prepayment made in respect thereof.




          “Interest Period”: as to any Eurodollar Loan, (a) initially, the period commencing on
the Closing Date or conversion date, as the case may be, with respect to such Eurodollar Loan and
ending one week or one, two, three or six months thereafter (provided that Interest Periods of one
week in duration may only be selected by the Borrower during the period commencing on the Closing
Date and ending two months thereafter), as set forth in Section 2.1 or as selected by the Borrower
in its notice of conversion, as the case may be, given with respect thereto; and (b)



15









 






thereafter, each period commencing on the last day of the next preceding Interest Period
applicable to such Eurodollar Loan and ending one week or one, two, three or six months thereafter
(provided that Interest Periods of one week in duration may only be selected by the Borrower during
the period commencing on the Closing Date and ending two months thereafter), as selected by the
Borrower by irrevocable notice to the Administrative Agent not later than 11:00 A.M., New York City
time, on the date that is three Business Days prior to the last day of the then current Interest
Period with respect thereto; provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:




          (i) if any Interest Period would otherwise end on a day that is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day;




          (ii) the Borrower may not select an Interest Period that would extend beyond the date final
payment is due on the Loans;




          (iii) any Interest Period that begins on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar month; and




          (iv) the Borrower shall use reasonable efforts to select Interest Periods so as not to require
a payment or prepayment of any Eurodollar Loan during an Interest Period for such Loan.




          “Investments”: as defined in Section 6.8.




          “Joint Venture”: each Affiliate of the Borrower listed on Schedule 1.1D and any other
Person not a Subsidiary in which any Group Member obtains an ownership interest to the extent
permitted by Section 6.8(j).




          “Joint Venture Basket”: at any date, an amount equal to (i) $250,000,000 minus (ii)
the aggregate amount of Investments made pursuant to Section 6.8(j)(ii) on or prior to such date
minus (iii) the aggregate amount of operating leases (measured on the basis of the fair market
value of the assets subject thereto) outstanding pursuant to Section 6.5(j)(ii) on or prior to such
date plus (iv) the aggregate amount of distributions in cash and Cash Equivalents with respect to
any Investment made pursuant to Section 6.8(j)(ii) that have been received on or prior to such date
by the Group Member that holds such Investment.




          “Joint Venture Put Obligation”: any obligation of any Group Member (i) to purchase
any Capital Stock of any Person that is a Joint Venture on the Closing Date, which Capital Stock is
not owned by a Group Member on the Closing Date, so long as such obligation is in existence on the
Closing Date and has been disclosed by the Borrower to the Lenders prior to the Closing Date, (ii)
to purchase any Capital Stock of any Person that is a Joint Venture on the Closing Date, which
Capital Stock is not owned by a Group Member on the Closing Date and where such obligation to
purchase Capital Stock arises after the Closing Date, or (iii) to purchase any Capital Stock of any
Joint Venture formed after the Closing Date that is not owned by a Group Member on the date of
formation of such new Joint Venture, so long as the aggregate



16









 






amount of obligations described in the preceding clause (ii) or (iii) for any single such
Joint Venture shall not exceed $50,000,000 at the time of determination thereof (with the amount of
any non-cash obligations to be estimated by the Borrower in good faith).




          “JPMCB”: JPMorgan Chase Bank, N.A.




          “Lenders”: as defined in the preamble hereto.




          “Lien”: any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest or any preference,
priority or other security agreement or preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention agreement and any capital lease having
substantially the same economic effect as any of the foregoing).




          “Loan”: any loan made by any Lender pursuant to this Agreement, including without
limitation, the loans deemed to be made under Section 2.1.




          “Loan Documents”: this Agreement, the Security Documents, the Collateral Trust
Agreement, the Guarantees, the Notes and any amendment, waiver, supplement or other modification to
any of the foregoing.




          “Loan Parties”: the Borrower and the Guarantors.




          “Material Adverse Effect”: a material adverse effect on (a) the business, property,
operations or financial condition of the Group Members taken as a whole or (b) the validity or
enforceability of this Agreement or any of the other Loan Documents or the rights or remedies of
the Administrative Agent or the Lenders hereunder or thereunder.




          “Material Environmental Loss”: (a) cash costs to the Group Members, in the aggregate,
for investigative and remedial costs, compliance costs, compensatory damages, natural resource
damages, punitive damages, fines, penalties, and (b) any other cash losses to the Group Members,
that in the aggregate either exceed $25,000,000 in any fiscal year of the Borrower, or would have a
Material Adverse Effect, arising out of any Environmental Law or any liabilities or obligations
with respect to any Materials of Environmental Concern.




          “Materials of Environmental Concern”: any gasoline or petroleum (including crude oil
or any fraction thereof) or petroleum products, polychlorinated biphenyls, urea-formaldehyde
insulation, asbestos, molds, pollutants, contaminants, radioactivity, any hazardous or toxic
substances or waste and any other substances that are regulated pursuant to or would reasonably be
expected to give rise to liability under any Environmental Law.




          “Maturity Date”: June 27, 2014, the date that is the 78 month anniversary of the
Closing Date.




          “Minimum Cash”: at any date, an amount equal to the lesser of (a) the aggregate
amount of unrestricted cash and Cash Equivalents held by Group Members at such date, and (b)
$160,000,000.




17









 








          “Minority Interests”: any shares of stock of any class of a Subsidiary of the
Borrower (other than directors’ qualifying shares if required by law) that are not owned by
Borrower or one of its Subsidiaries; Minority Interest shall be valued in accordance with GAAP.




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




          “Mortgaged Properties”: the real properties listed on Schedule 1.1E under the heading
“Mortgaged Properties”, as to which the Collateral Trustee, for the benefit of the Lenders and the
other secured parties referred to therein, shall be granted a Lien pursuant to the Mortgages.




          “Mortgages”: each of the mortgages and deeds of trust made by any Loan Party in favor
of the Collateral Trustee, for the benefit of the Lenders and the other secured parties referred to
therein, substantially in the form of Exhibit F (with such changes thereto as shall be advisable or
are customary under the law of the jurisdiction in which such mortgage or deed of trust is to be
recorded).




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




          “Net Cash Proceeds”: (a) in connection with any Asset Sale (other than the
liquidation of a Joint Venture or the Disposition of Senior Subordinated Notes purchased pursuant
to a Permitted Open Market Purchase) or any Recovery Event or any transaction that would constitute
an Asset Sale but for clause (ii) of the definition thereof, the gross proceeds thereof in the
form of cash and Cash Equivalents (including any such proceeds received by way of deferred payment
of principal pursuant to a note or installment receivable or purchase price adjustment receivable
or otherwise, but only as and when received, and, with respect to any Asset Sale consisting of the
Disposition of all or substantially all of the assets of a business or business unit of the
Borrower or any of its Subsidiaries, net proceeds from the liquidation or sale of accounts
receivable or inventory of such business or business unit), net of (i) attorneys’ fees,
accountants’ fees, investment banking fees, (ii) amounts required to be applied to the repayment of
(x) Indebtedness secured by a Lien expressly permitted hereunder on any asset that is the subject
of such Asset Sale or Recovery Event (but excluding, in any event, any Lien securing the “Third
Priority Obligations” referred to in the Intercreditor Agreement) and (y) solely if such Asset Sale
or Recovery Event is consummated by a Foreign Subsidiary, any other Indebtedness permitted
hereunder, including without limitation any Foreign Credit Facility and any Indebtedness of any
parent or Subsidiary of such Foreign Subsidiary, but excluding any Indebtedness owed to any Group
Member, (iii) other customary fees and expenses actually incurred in connection therewith and (iv)
taxes paid or reasonably estimated to be payable as a result thereof and as a result of
distributing such proceeds to the Borrower (after taking into account any available tax credits or
deductions and any tax sharing arrangements), (b) in connection with any issuance or sale of
Capital Stock to a Person that is not a Group Member or any incurrence of Indebtedness to a Person
that is not a Group Member, the cash proceeds received from such issuance or incurrence, net of (i)
attorneys’ fees, accountants’ fees, investment banking fees, underwriting discounts and
commissions, (ii) other customary fees and expenses actually incurred in connection therewith and
net of taxes paid or reasonably estimated to be payable as a result of distributing such proceeds
to the Borrower (after taking into account



18









 






any available tax credits or deductions and any tax sharing arrangements) and (iii) amounts
required to be applied to the repayment of Indebtedness under the Exit Facility Agreement, (c) in
connection with the liquidation of a Joint Venture, the gross proceeds thereof in the form of cash
and Cash Equivalents received by any Group Member in excess of the fair market value of the
aggregate of all Investments made in such Joint Venture by any Group Member at any time and net of
(i) attorneys’ fees, accountants’ fees and investment banking fees, (ii) amounts required to be
applied to the repayment of (x) Indebtedness secured by a Lien expressly permitted hereunder on any
asset that is the subject of such liquidation (but excluding, in any event, any Lien securing the
“Third Priority Obligations” referred to in the Intercreditor Agreement) and (y) solely if such
liquidation is consummated by a Foreign Subsidiary, any other Indebtedness permitted hereunder,
including without limitation any Foreign Credit Facility and any Indebtedness of any parent or
Subsidiary of such Foreign Subsidiary, but excluding any Indebtedness owed to any Group Member,
(iii) other customary fees and expenses actually incurred in connection therewith and (iv) taxes
paid or reasonably estimated to be payable as a result thereof and as a result of distributing such
proceeds to the Borrower (after taking into account any available tax credits or deductions and any
tax sharing arrangements)and (d) in connection with the Disposition of Senior Subordinated Notes
purchased by any Group Member pursuant to a Permitted Open Market Purchase, an amount equal to the
purchase price paid by such Group Member pursuant to such Permitted Open Market Purchase (whether
or not the aggregate amount of proceeds thereof is equal to such purchase price). Notwithstanding
the foregoing, the “Net Cash Proceeds” of a Foreign Subsidiary shall not include any amounts to the
extent such amount may not be distributed (by way of dividends, intercompany loans or otherwise) to
the Borrower or a Domestic Subsidiary because doing so would (1) violate legal restrictions binding
upon such Foreign Subsidiary, (2) violate contractual restrictions contained in agreements with
third parties (other than Affiliates) entered into in good faith and binding upon such Foreign
Subsidiary or (3) result in material adverse tax consequences to the Borrower.




          “Non-Excluded Taxes”: as defined in Section 2.13(a).




          “Non-Guarantor Domestic Subsidiaries”: those Domestic Subsidiaries identified on
Schedule 1.1I.




          “Non-U.K. Foreign Subsidiary”: the Foreign Subsidiaries of the Borrower other than
the U.K. Subsidiaries.




          “Non-U.S. Lender”: as defined in Section 2.13(d).




          “Not Otherwise Applied”: on any date, with respect to any amount of Equity Proceeds
or Permitted Subordinated Indebtedness Proceeds, that such amount was not (i) required to be
applied to prepay the Loans pursuant to Section 2.5, (ii) applied to optionally prepay the Loans
pursuant to Section 2.6 and (iii) previously applied to make a Restricted Payment pursuant to
Section 6.6(f), to make a Capital Expenditure pursuant to Section 6.7 or to make an Investment
pursuant to Section 6.8(v). The Borrower shall promptly notify the Administrative Agent of any
application of such amount as contemplated by clause (iii) of this definition.




          “Notes”: the collective reference to any promissory note evidencing Loans.




19









 








          “Obligations”: the unpaid principal of and interest on (including interest accruing
after the maturity of the Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to
the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such
proceeding) the Loans and all other obligations and liabilities of the Borrower to the
Administrative Agent or to any Lender, whether direct or indirect, absolute or contingent, due or
to become due, or now existing or hereafter incurred, which may arise under, out of, or in
connection with, this Agreement, any other Loan Document or any other document made, delivered or
given in connection herewith or therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including all fees, charges and disbursements of
counsel to the Administrative Agent or any Lender that are required to be paid by the Borrower
pursuant hereto) or otherwise.




          “Organizational Documents”: (i) with respect to any corporation, its certificate or
articles of incorporation, as amended, and its by-laws, as amended, (ii) with respect to any
limited partnership, its certificate of limited partnership or formation, as amended, and its
partnership agreement, as amended, (iii) with respect to any general partnership, its partnership
agreement, as amended, (iv) with respect to any limited liability company, its certificate of
formation or articles of organization, as amended, and its operating agreement, as amended, and (v)
with respect to any unlimited liability company, its certificate of formation, as amended, and its
memorandum and articles of association, as amended. In the event any term or condition of this
Agreement or any other Loan Document requires any Organizational Document to be certified by a
secretary of state of similar governmental official, the reference to any such “Organizational
Document” shall only be to a document of a type customarily certified by such governmental
official.




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




          “Other Unsecured Claims”: all allowed unsecured claims under the Reorganization Plan.




          “Participant”: as defined in Section 9.6(c).




          “Payment Office”: the office of the Administrative Agent specified in Section 9.2 or
such other office as may be specified from time to time by the Administrative Agent as its payment
office by written notice to the Borrower and the Lenders.




          “PBGC”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A
of Title IV of ERISA (or any successor).




          “Permitted Acquisition”: any Acquisition, if such Acquisition complies with the
following criteria:




          (a) no Default or Event of Default shall have occurred or be continuing either prior to or
after giving effect to the consummation of such Acquisition and the incurrence by the



20









 






Group Members of any Indebtedness associated therewith, and the Borrower shall have delivered
to the Administrative Agent prior to the consummation of such Acquisition a certificate of a
Responsible Officer to such effect;




          (b) (i) the Fair Market Consideration is less than $50,000,000 or (ii) the Fair Market
Consideration is greater than or equal to $50,000,000 and (I) the Pre-Transaction Coverage Ratio
shall be, and the Consolidated Debt Service Coverage Ratio, determined on a Pro Forma Basis, shall
be, equal to or greater than (X) 1.50 to 1.00, for any such Acquisition consummated on or prior to
the third anniversary of the Closing Date or (Y) 1.10 to 1.00, for any such Acquisition consummated
after the third anniversary of the Closing Date or (II) the Pre-Transaction Coverage Ratio shall be
less than (X) 1.50 to 1.00 for any such Acquisition consummated on or prior to the third
anniversary of the Closing Date or (Y) 1.10 to 1.00, for any such Acquisition consummated after the
third anniversary of the Closing Date and the Consolidated Debt Service Coverage Ratio, determined
on a Pro Forma Basis, shall not be less than the Pre-Transaction Coverage Ratio, and, in the case
of each of the foregoing, the Borrower shall have delivered to the Administrative Agent prior to
the consummation of such Acquisition such financial information as the Administrative Agent shall
reasonably request to demonstrate such compliance;




          (c) if the Fair Market Consideration is greater than $100,000,000, the Borrower shall have
delivered to the Administrative Agent prior to the consummation of such Acquisition a certificate
of a Responsible Officer, certifying that such Acquisition has been approved by a Board Majority;




          (d) after giving effect to the consummation of such Acquisition and to the incurrence by the
Group Members of any Indebtedness associated therewith, if such Acquisition is consummated on or
after the first date on which the Borrower is required to comply with any covenant in Section 6.1,
the Borrower, shall be in compliance, determined on a Pro Forma Basis, with such covenant in
Section 6.1, and the Borrower shall have delivered to the Administrative Agent prior to the
consummation of such Acquisition such financial information as the Administrative Agent shall
reasonably request to demonstrate such pro forma compliance; and




          (e) any Person whose Capital Stock is directly or indirectly acquired shall be, after giving
effect to such Acquisition, a direct or an indirect Subsidiary of the Borrower.




          “Permitted Asset Sale”: any Asset Sale by any Group Member, if such Asset Sale
complies with the following criteria:




          (a) no Default or Event of Default shall have occurred and be continuing either prior to or
after giving effect to the consummation of such Asset Sale, and the Borrower shall have delivered
to the Administrative Agent prior to the consummation of such Asset Sale a certificate of a
Responsible Officer to such effect;




          (b) (i) the aggregate fair market value of all consideration paid to the Group Members in
respect of such Asset Sale is less than $50,000,000, or (ii) the aggregate fair market value of all
consideration paid to the Group Members in respect of such Asset Sale is greater than or equal to
$50,000,000 and, if such Asset Sale is consummated on or after the first date on



21









 






which the Borrower is required to comply with any covenant in Section 6.1, prior to and after
giving effect to the consummation of such Asset Sale, the Borrower shall be in compliance, on a Pro
Forma Basis, with such covenant in Section 6.1 (and the Borrower shall have delivered to the
Administrative Agent prior to the consummation of such Asset Sale such financial information as the
Administrative Agent shall reasonably request to demonstrate such pro forma compliance) or (iii)
all the Net Cash Proceeds of such Asset Sale are applied in whole to prepay the Loans or the
Indebtedness under the Exit Facility Agreement;




          (c) the consideration received by the Group Members in respect of such Asset Sale shall at
least be equal to the fair market value of the assets being Disposed and shall consist of at least
662/3% in cash and Cash Equivalents; provided, that up to $25,000,000 of Asset Sales per fiscal year
may be Permitted Asset Sales without meeting the requirements of this clause (c); and




          (d) the aggregate fair market value of all consideration received by the Group Members in
connection with all such Asset Sales shall not, without the prior consent of the Required Lenders,
exceed in any fiscal year of the Borrower the sum of (i) $200,000,000 plus (ii) all such
consideration applied by a Group Member in making Permitted Net Cash Proceeds Reinvestments.




          “Permitted Holders”: Federal-Mogul U.S. Asbestos Personal Injury Trust and Thornwood,
which are the holders of Class A Common Stock and Class B Common Stock of the Borrower on the
Effective Date pursuant to the Reorganization Plan.




          “Permitted Net Cash Proceeds Reinvestments”: (i) assets (“replacement assets”) to be
acquired or built with the Net Cash Proceeds of any Recovery Event (but not any Asset Sale), so
long as (x) such replacement assets are to be used for substantially the same purpose as the assets
that were subject to the relevant Recovery Event (“subject assets”) and (y) such replacement assets
are to be located in the United States to the extent that the subject assets were located in the
United States prior to such Recovery Event and (ii) assets to be acquired or built with the Net
Cash Proceeds of any Asset Sale or Recovery Event that are useful in the business of the Borrower
but that do not comply with the criteria set forth in clause (i) of this definition.




          “Permitted Open Market Purchase”: any purchase by any Group Member in the open market
(including without limitation, a privately negotiated purchase) of Senior Subordinated Notes for
less than the face amount thereof at the time of such purchase, together with accrued and unpaid
interest thereon, provided that (a) any such purchase is consummated pursuant to the terms of this
Agreement and (b) either (i) such Senior Subordinated Notes are canceled upon consummation of such
purchase or (ii) an amount equal to the purchase price paid by such Group Member to purchase such
Senior Subordinated Notes is applied upon the Disposition thereof to prepay the Loans in accordance
with Section 2.5(a) or the Indebtedness under the Exit Facility Agreement if any such purchased
Senior Subordinated Notes are thereafter Disposed of by such Group Member.




          “Permitted Subordinated Indebtedness”: Indebtedness of the Borrower (i) which shall
be contractually subordinated to the Obligations, (ii) which shall have subordination and other
terms (other than economic terms), taken as a whole, no less favorable to the Lenders than



22









 






the terms of the Senior Subordinated Notes in relation to the Obligations, and (iii) if such
Indebtedness is secured, any Liens securing such Indebtedness shall be junior to the “Second
Priority Liens” referred to in the Intercreditor Agreement and shall be subject to Lien
subordination provisions, taken as a whole, no less favorable to the Lenders in any material
respect than the terms of the subordination of the “Third Priority Liens” referred to in the
Intercreditor Agreement in relation to the “Second Priority Liens” referred to therein.




          “Permitted Subordinated Indebtedness Proceeds”: the Net Cash Proceeds of any
Permitted Subordinated Indebtedness incurred by a Group Member.




          “Person”: an individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.




          “Petition Date”: as defined in the introductory statement hereto.




          “Plan”: at a particular time, any employee benefit plan that is covered by Title IV
of ERISA and in respect of which the Borrower or a Commonly Controlled Entity is (or, if such plan
were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as
defined in Section 3(5) of ERISA.




          “Positive EBITDA Variance”: as defined in the Intercreditor Agreement.




          “Prepayment Application Date”: with respect to any mandatory prepayment pursuant to
Sections 2.5(d) and (e), 115 days after the end of the fiscal year with respect to which such
prepayment is made.




          “Prepetition Credit Agreement”: the Fourth Amended and Restated Credit Agreement,
dated as of December 29, 2000, as amended, among the Borrower, the foreign subsidiary borrowers
parties thereto, the lenders from time to time parties thereto and JPMorgan Chase Bank (formerly
known as The Chase Manhattan Bank), as administrative agent for such lenders.




          “Pre-Transaction Coverage Ratio”: with respect to any Acquisition, the Consolidated
Debt Service Coverage Ratio immediately prior to giving effect to the consummation of such
Acquisition, and the incurrence by the Group Members of any Indebtedness associated therewith,
calculated based upon Consolidated EBITDA for the four fiscal quarters most recently ended for
which financial statements are available.




          “Proceeds Investment”: an Investment made pursuant to Section 6.8(v).




          “Proceeds Investment Basket”: on any date, an amount equal to (i) the aggregate
amount of Equity Proceeds and Permitted Subordinated Indebtedness Proceeds that have been applied
to make Investments pursuant to Section 6.8(v) on or prior to such date (so long as, at the time
any such Investment was made, such Equity Proceeds or Permitted Subordinated Indebtedness Proceeds
were Not Otherwise Applied) plus (ii) the aggregate amount of distributions in cash and Cash
Equivalents with respect to any Investment made pursuant to



23









 






Section 6.8(v) that have been received on or prior to such date by the Group Member that holds
such Investment.




          “Pro Forma Balance Sheet”: as defined in Section 3.1(a).




          “Pro Forma Basis”: with respect to any calculation of any financial covenant
contained in Section 6.1 in connection with any Acquisition or Asset Sale (including any financial
test set forth in the definition of “Permitted Acquisition” to be determined on a pro forma basis),
such covenant calculated on a pro forma basis after giving effect to the consummation of such
Acquisition, and to the incurrence by the Group Members of any Indebtedness associated therewith,
or such Asset Sale, as the case may be, as if such Acquisition or Asset Sale, as the case may be,
had occurred on the first day of the period of four consecutive fiscal quarters most recently ended
for which the financial statements are available and, if such calculation is made in connection
with any Acquisition, with adjustments for (i) non-recurring or one-time expenses or charges that
have actually been incurred directly related to the Assets subject to such Acquisition and (ii)
expenses or charges that have actually been incurred directly related to the Assets subject of such
Acquisition but would not have been incurred if the relevant Acquisition had been consummated on
the first day of such period, in each case as determined by the Borrower in good faith.




          “Projections”: as defined in Section 5.2(c).




          “Receivable”: a payment owing to a Person (whether constituting an account, chattel
paper, document, instrument or general intangible) arising from the provision of merchandise, goods
or services by such Person, including the right to payment of any interest or finance charges and
other obligations owing to such Person with respect thereto.




          “Recovery Event”: any settlement of or payment in respect of any property or casualty
insurance claim or any condemnation proceeding relating to any asset of any Group Member.




          “Register”: as defined in Section 9.6(b).




          “Regulation U”: Regulation U of the Board as in effect from time to time.




          “Reinvestment Deferred Amount”: with respect to any Reinvestment Event, the aggregate
Net Cash Proceeds received by any Group Member in connection therewith that are not applied to
prepay the Loans pursuant to Section 2.5(c) or the Indebtedness under the Exit Facility Agreement
as a result of the delivery of a Reinvestment Notice.




          “Reinvestment Event”: any Asset Sale or Recovery Event in respect of which the
Borrower has delivered a Reinvestment Notice.




          “Reinvestment Notice”: a written notice executed by a Responsible Officer stating
that no Event of Default has occurred and is continuing and the Borrower (directly or indirectly
through a Subsidiary) intends and expects to use all or a specified portion of the Net Cash
Proceeds of an Asset Sale or Recovery Event to make a Permitted Net Cash Proceeds



24









 






Reinvestment, and specifying whether such Permitted Net Cash Proceeds Reinvestment is one
described in clause (i) or (ii) of the definition thereof.




          “Reinvestment Prepayment Amount”: as of any Reinvestment Prepayment Date with respect
to any Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any amount
expended prior to such Reinvestment Prepayment Date to make Permitted Net Cash Proceeds
Reinvestments.




          “Reinvestment Prepayment Date”: with respect to any Reinvestment Event, the earlier
of (a) the date on which the report referred to in Section 5.2(f) for the fiscal quarter in which
the twelve month anniversary of the date on which the Borrower has delivered the Reinvestment
Notice with respect to such Reinvestment Event occurs is (i) required to be delivered to the
Lenders or (ii) actually delivered to the Lenders and (b) the date on which the Borrower shall have
determined not to, or shall have otherwise ceased to, apply all or any portion of the relevant
Reinvestment Deferred Amount to make the Permitted Net Cash Proceeds Reinvestment identified in the
relevant Reinvestment Notice.




          “Related Security”: with respect to any Receivables: (a) all Liens and property
subject thereto from time to time securing or purporting to secure the payment of such Receivable
by the Person obligated thereon, (b) all guaranties, indemnities and warranties, insurance
policies, financing statements and other agreements or arrangements of whatever character from time
to time supporting or securing payment of such Receivable, (c) all right, title and interest of any
Group Member or any SPV in and to any goods (including returned, repossessed or foreclosed goods)
the sale of which gave rise to such Receivable; provided that Related Security will not
include returned goods only to the extent that all amounts required to be paid pursuant to
Securitization Transactions in respect of such goods have been paid, (d) all collections with
respect to any of the foregoing, (e) all records with respect to any of the foregoing, and (f) all
proceeds of such Receivable or with respect to any of the foregoing.




          “Reorganization”: with respect to any Multiemployer Plan, the condition that such
plan is in reorganization within the meaning of Section 4241 of ERISA.




          “Reorganization Plan”: the Fourth Amended Joint Plan of Reorganization proposed by
the Debtors, the Unsecured Creditors Committee, the Asbestos Claimants Committee, the Equity
Committee, the Future Claimants Representative and JPMCB, as administrative agent for the holders
of the Bank Claims, as amended or modified from time to time (whether any such amendment or
modification is effected through an amendment or modification to the Reorganization Plan itself or
through the Confirmation Order), so long as any such amendment or modification does not adversely
affect the Lenders.




          “Reportable Event”: any of the events set forth in Section 4043(c) of ERISA, other
than those events as to which the thirty day notice period is waived
under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg. § 4043.




          “Required Lenders”: at any time, the holders (excluding any Affiliate of a Group
Member or of a Significant Shareholder) of more than 50% of the aggregate unpaid principal



25









 






amount of the Loans then outstanding (excluding Loans held by any Affiliate of a Group Member
or of a Significant Shareholder).




          “Requirement of Law”: as to any Person, the Organizational Documents of such Person,
and any law, treaty, rule or regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.




          “Responsible Officer”: the chief executive officer, president, chief financial
officer or treasurer of the Borrower, but in any event, with respect to financial matters, the
chief financial officer or treasurer of the Borrower.




          “Restricted Payments”: as defined in Section 6.6.




          “S&P”: Standard & Poor’s Ratings Services.




          “SEC”: the Securities and Exchange Commission, any successor thereto and any
analogous Governmental Authority.




          “Securitization Transactions”: one or more securitization transactions pursuant to
which any Group Member securitizes Receivables and Related Security, including without limitation,
as a result of the sale or granting of a Lien on such Receivables and Related Security to the SPV
and the contribution of Receivables and Related Security to the SPV.




          “Security Documents”: the collective reference to the Collateral Agreement, the
Foreign Pledge Agreements, the Mortgages and all other security documents hereafter delivered to
the Collateral Trustee granting a Lien on any property of any Person to secure the obligations and
liabilities of any Loan Party under any Loan Document.




          “Senior Subordinated Notes”: (i) the Senior Subordinated Secured Notes due 2018
issued on the Closing Date pursuant to the Senior Subordinated Notes Indenture in effect on the
Closing Date and (ii) any Indebtedness permitted under Section 6.2(n) that is incurred after the
Closing Date to refinance, replace, refund, renew or extend in whole or in part the Indebtedness
described in clause (i), other than the Term Loans under the Exit Facility.




          “Senior Subordinated Notes Indenture”: (i) the Indenture, dated as of the date
hereof, entered into by the Borrower and certain of its Subsidiaries in connection with the
issuance of the Senior Subordinated Notes, together with all instruments and other agreements
entered into by the Borrower or such Subsidiaries in connection therewith, and (ii) any other
credit agreement, loan agreement, note agreement, promissory note, indenture, or other agreement or
instrument evidencing or governing the terms of any indebtedness or other financial accommodation
that is hereafter incurred to refinance, replace, refund, renew or extend in whole or in part the
Indebtedness and other obligations outstanding under any of the agreements described in clause (i),
together with all instruments and other agreements entered into by the Borrower or such
Subsidiaries in connection therewith; provided that any agreement or instrument described
in this clause (ii) shall not contain any financial covenants, negative covenants or events of
default that are materially more restrictive than those set forth in this Agreement, in each case
as the same may be amended, supplemented or otherwise modified from



26









 






time to time in accordance with Section 6.9. Any reference to the Senior Subordinated Notes
Indenture hereunder shall be deemed a reference to each of the Senior Subordinated Notes Indentures
then extant.




          “Senior Subordinated Notes Trustee”: U.S. Bank National Association, in its capacity
as trustee under the Senior Subordinated Notes Indenture, together with any of its successors.




          “Significant Shareholder”: any beneficial holder or group of affiliated beneficial
holders of securities representing 30% or more of the voting power of the Borrower.




          “Single Employer Plan”: any Plan that is covered by Title IV of ERISA, but that is
not a Multiemployer Plan.




          “Specified Change of Control”: a “Change of Control” (or any other defined term
having a similar purpose) as defined in the Senior Subordinated Notes Indenture, any document
governing any Permitted Subordinated Indebtedness, the Exit Facility Agreement or the Additional
Liquidity Facility Agreement.




          “Specified Indebtedness”: on any date or for any period, (i) Intercompany Loans, (ii)
Indebtedness described in clause (f) of the definition thereof, so long as such Indebtedness is
contingent and (iii) any Indebtedness described in clause (j) of the definition thereof and
Indebtedness permitted under Sections 6.2(i), 6.2(k) and 6.2(m), unless any such Indebtedness
described in this clause (iii) would be required to be reflected as debt on the consolidated
balance sheet of the Borrower on such date and the payments associated therewith would be required
to be included as interest expense on the consolidated income statement of the Borrower for such
period, in each case in accordance with GAAP.




          “SPV”: a Wholly Owned Subsidiary of the Borrower which is created for the sole
purpose of purchasing Receivables from any Group Member as part of a Securitization Transaction,
which engages in no activities other than in connection with the financing of Receivables and which
is designated as an SPV by the board of directors of the Borrower as an SPV; provided that (a) no
portion of the Indebtedness or any other obligations (contingent or otherwise) of which (i) is
guaranteed by any Group Member (excluding guarantees of obligations (other than the principal of,
and interest on, Indebtedness)) pursuant to Standard Securitization Undertakings, (ii) is recourse
to or obligates any Group Member in any way other than pursuant to Standard Securitization
Undertakings or (iii) subjects any property or asset of any Group Member, directly or indirectly,
contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard
Securitization Undertakings, (b) with which no Group Member has any material contract, agreement,
arrangement or understanding other than on terms no less favorable to such Group Member than those
that might be obtained at the time from Persons that are not Affiliates of the Borrower, other than
fees payable in the ordinary course of business in connection with servicing Receivables of such
entity, (c) to which no Group Member has any obligation to maintain or preserve such entity’s
financial condition or cause such entity to achieve certain levels of operating results and (d) the
Capital Stock of such SPV is pledged in favor of the Lenders to secure the Obligations. Any such
designation by the board of directors of the Borrower shall be evidenced to the Administrative
Agent by delivery to the Administrative



27









 






Agent of a certified copy of the resolution of the board of directors of the Borrower giving
effect to such designation and a certificate of a Responsible Officer certifying that such
designation complied with the foregoing conditions.




          “Standard Securitization Undertakings”: representations, warranties, covenants and
indemnities entered into by any Group Member which are reasonably customary in an accounts
receivable securitization transaction.




          “Strategic Plan”: as defined in Section 5.2(d).




          “Subsidiary”: as to any Person, a corporation, partnership, limited liability company
or other entity of which shares of stock or other ownership interests having ordinary voting power
(other than stock or such other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this
Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.




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




          “Tax Restructuring” shall mean (a) the transactions set forth in Schedule 1.1H and (b)
any additional transactions to restructure the Borrower’s foreign operations after the Closing Date
so long as (i) the Borrower shall have provided all information relating to such additional
transactions under this clause (b) as the Administrative Agent shall have requested and (ii)
consummation of such additional transactions under this clause (b) shall not have an impact that is
material and adverse on the structure or the value of the Collateral set forth in Schedule 1.1F, in
each case as determined by the Administrative Agent in its reasonable credit judgment.




          “Term Percentage”: with respect to any Lender at any time, the percentage which the
aggregate principal amount of such Lender’s Loans then outstanding constitutes of the aggregate
principal amount of all Loans then outstanding.




          “Thornwood”: Thornwood Associates Limited Partnership and its Affiliates. For the
avoidance of doubt, Icahn Enterprises L.P. shall be deemed to be an Affiliate of Thornwood.




          “Transferee”: any Assignee or Participant.




          “Type”: as to any Loan, its nature as an ABR Loan or a Eurodollar Loan.




28









 








          “U.K. Administration”: as defined in the definition of “U.K. Subsidiaries”.




          “U.K. Dissolution”: the winding up or striking off of (x) those U.K. Subsidiaries
listed on Schedule 1.1G hereto or (y) any other U.K. Subsidiary which is no longer trading and
which has gross assets (as shown in the most recent set of audited accounts) of less than ₤10,000.




          “U.K. Settlement Agreement”: that certain agreement dated September 26, 2005 among
the Borrower, T&N Limited, certain bankruptcy plan proponents, High River Limited Partnership, the
Pension Protection Fund and James J. Gleave, Simon V. Freakley and Gary P. Squires of Kroll Limited
and their successors as joint administrators of T&N Limited, appointed by order of the High Court
of Justice of England and Wales.




          “U.K. Subsidiaries”: those Subsidiaries of the Borrower which are organized under the
laws of any jurisdiction in the United Kingdom and which are the subject of administration
petitions under the U.K. Insolvency Act of 1986 (collectively, and including upon the grant of such
petitions, the “U.K. Administration”) and are debtors in cases pending under Chapter 11 of the
Bankruptcy Code.




          “United States”: the United States of America.




          “U.S. Debtors”: as defined in the introductory statement hereto.




          “Wagner Lighting Divestiture”: a Disposition consisting of the sale by the Borrower
and its Subsidiaries of certain assets located in the United States related to the Wagner Lighting
Group, including manufacturing equipment related thereto but excluding the sale of the “Wagner”
brand.




          “Wholly Owned Subsidiary”: as to any Person, any other Person all of the Capital
Stock of which (other than directors’ qualifying shares required by law) is owned by such Person
directly and/or through other Wholly Owned Subsidiaries.




          “Wholly Owned Subsidiary Guarantor”: any Guarantor that is a Wholly Owned Subsidiary
of the Borrower.




          1.2 Other Definitional Provisions.




          (a) Unless otherwise specified therein, all terms defined in this Agreement shall have the
defined meanings when used in the other Loan Documents or any certificate or other document made or
delivered pursuant hereto or thereto.




          (b) As used herein and in the other Loan Documents, and any certificate or other document made
or delivered pursuant hereto or thereto, (i) accounting terms relating to any Group Member not
defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not
defined, shall have the respective meanings given to them under GAAP, (ii) the words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”, (iii)
the word “incur” shall be construed to mean incur, create, issue,



29









 






assume, become liable in respect of or suffer to exist (and the words “incurred” and
“incurrence” shall have correlative meanings), (iv) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, Capital Stock, securities, revenues, accounts, leasehold
interests and contract rights, and (v) references to agreements or other Contractual Obligations
shall, unless otherwise specified, be deemed to refer to such agreements or Contractual Obligations
as amended, supplemented, restated or otherwise modified from time to time.




          (c) The words “hereof”, “herein” and “hereunder” and words of similar import, when used in
this Agreement, shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise
specified.




          (d) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.




SECTION 2. AMOUNT AND TERMS OF LOANS




          2.1 Loans. Subject to the terms and conditions hereof and to give effect to the
Reorganization Plan and provide for the repayment, in part, of the Bank Claims and the Surety
Claims (as defined in the Reorganization Plan), each Lender shall be deemed to have made a term
loan to the Borrower on the Closing Date in an amount not to exceed the amount set forth opposite
such Lender’s name on Schedule 1.1A. The Loans deemed made pursuant to the preceding sentence
shall be made without any actual funding and shall initially be Eurodollar Loans with Interest
Periods of one week. After the Closing Date, the Loans may from time to time be Eurodollar Loans
or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance
with Section 2.6.




          2.2 Repayment of Loans. The Loan of each Lender shall mature in 22 consecutive
quarterly installments, each of which shall be in an amount equal to such Lender’s Term Percentage
multiplied by the amount set forth below opposite such installment:




	 	 	 	 	 
	Installment	 	Principal Amount
	December 31, 2008

	 	$	5,700,000	 
	March 31, 2009

	 	$	5,700,000	 
	June 30, 2009

	 	$	5,700,000	 
	September 30, 2009

	 	$	5,700,000	 
	December 31, 2009

	 	$	11,400,000	 
	March 31, 2010

	 	$	11,400,000	 
	June 30, 2010

	 	$	11,400,000	 
	September 30, 2010

	 	$	11,400,000	 
	December 31, 2010

	 	$	11,400,000	 
	March 31, 2011

	 	$	11,400,000	 
	June 30, 2011

	 	$	11,400,000	 
	September 30, 2011

	 	$	11,400,000	 
	December 31, 2011

	 	$	56,900,000	 
	March 31, 2012

	 	$	56,900,000	 
	June 30, 2012

	 	$	56,900,000	 
	September 30, 2012

	 	$	56,900,000	 
	December 31, 2012

	 	$	56,900,000	 
	March 31, 2013

	 	$	56,900,000	 






30









 






	 	 	 	 	 
	Installment	 	Principal Amount
	June 30, 2013

	 	$	56,900,000	 
	September 30, 2013

	 	$	56,900,000	 
	December 31, 2013

	 	$	56,900,000	 






	 	 	 
	Maturity Date	 	Balance
	 

	 	 





          2.3 Fees, etc. The Borrower agrees to pay to the Administrative Agent the fees in the
amounts and on the dates as set forth in any fee agreements with the Administrative Agent and to
perform any other obligations contained therein.




          2.4 Optional Prepayments. The Borrower may at any time and from time to time prepay
the Loans, in whole or in part, without premium or penalty, upon irrevocable notice delivered to
the Administrative Agent no later than 11:00 A.M., New York City time, three Business Days prior
thereto, in the case of Eurodollar Loans, and no later than 11:00 A.M., New York City time, one
Business Day prior thereto, in the case of ABR Loans, which notice shall specify the date and
amount of prepayment and whether the prepayment is of Eurodollar Loans or ABR Loans; provided that
if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period
applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.14. Upon
receipt of any such notice the Administrative Agent shall promptly notify each Lender thereof. If
any such notice is given, the amount specified in such notice shall be due and payable on the date
specified therein, together with accrued interest to such date on the amount prepaid. Partial
prepayments of Loans pursuant to this Section 2.4 shall be in an aggregate principal amount of
$1,000,000 or a whole multiple thereof.




          2.5 Mandatory Prepayments.




          (a) Unless the Required Lenders otherwise agree, an amount equal to 50% of the Net Cash
Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of
the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the
extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital
Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in
either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the
extent applicable, with respect to any assets acquired by any Group Member pursuant to such
Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition
(so long as the Borrower shall have complied with the provisions of
Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member
pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment
or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st
day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open
Market Purchases shall not have been consummated but one or more Group Members shall have entered
into a binding letter of intent or definitive purchase documentation with respect thereto (or, with
respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the
conditions set forth therein), then the Payment Date shall be extended to the 181st day after such
incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of
the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st
day to consummate (x) a Board-Approved




31









 







Investment or Proceeds Investment (in either case so long as
the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with
respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y)
a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section
5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to
such Permitted Acquisition), or (z) Permitted Open Market Purchases.




          (b) Unless the Required Lenders shall otherwise agree and except as set forth in the
immediately succeeding sentence with respect to the incurrence of Permitted Subordinated
Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of
any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be
applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such
incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted
Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set
forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as
such date may be extended pursuant to the proviso set forth at the end of this sentence) to the
extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital
Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in
either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the
extent applicable, with respect to any assets acquired by any Group Member pursuant to such
Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition
(so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent
applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted
Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the
Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved
Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall
not have been consummated but one or more Group Members shall have entered into a binding letter of
intent or definitive purchase documentation with respect thereto (or, with respect to Permitted
Open Market Purchases, shall have made a binding offer, subject to the conditions set forth
therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on
such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as
specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to
consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the
Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with
respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y)
a Permitted Acquisition
(so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent
applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted
Acquisition), or (z) Permitted Open Market Purchases.




          (c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is
delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a
Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the
sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to
100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the
Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as
set forth in Section 2.5(f) within ten (10) Business


















32











 




Days after the day of receipt of any such Net
Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be
made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such
prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant
to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the
Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to
the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a
Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and
Recovery Events that may be excluded from the requirement to prepay the Loans contained in this
paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset
Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the
Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make
Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall
be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in
clause (x) or (y) of this sentence.




          (d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the
Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any
fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section
2.5(f) on the Prepayment Application Date.




          (e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the
Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance
for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in
Section 2.5(f) on the Prepayment Application Date.



          (f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5
shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The
application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR
Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section
2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.




          2.6 Conversion and Continuation Options.




          (a) The Borrower may elect from time to time to convert Eurodollar Loans to ABR Loans by
giving the Administrative Agent prior irrevocable notice of such election no later than 11:00 A.M.,
New York City time, on the Business Day preceding the proposed conversion date, provided that any
such conversion of Eurodollar Loans may only be made on the last day of an Interest Period with
respect thereto. The Borrower may elect from time to time to convert ABR Loans to Eurodollar Loans
by giving the Administrative Agent prior irrevocable notice of such election no later than 11:00
A.M., New York City time, on the third Business Day preceding the proposed conversion date (which
notice shall specify the length of the initial Interest Period therefor), provided that no ABR Loan
may be converted into a Eurodollar Loan when any Event of Default has occurred and is continuing
unless the Administrative Agent or the Required Lenders have determined in its or their sole
discretion to permit such conversions.





33









 







Upon receipt of any such notice the Administrative Agent
shall promptly notify each Lender thereof.




          (b) Any Eurodollar Loan may be continued as such upon the expiration of the then current
Interest Period with respect thereto by the Borrower giving irrevocable notice to the
Administrative Agent, in accordance with the applicable provisions of the term “Interest Period”
set forth in Section 1.1, of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan may be continued as such when any Event of Default has
occurred and is continuing unless the Administrative Agent has or the Required Lenders have
determined in its or their sole discretion to permit such continuations, and provided,
further, that if the Borrower shall fail to give any required notice as described above in
this paragraph or if such continuation is not permitted pursuant to the preceding proviso such
Loans shall be automatically converted to ABR Loans on the last day of such then expiring Interest
Period. Upon receipt of any such notice the Administrative Agent shall promptly notify each Lender
thereof.




          2.7 Limitations on Eurodollar Tranches. Notwithstanding anything to the contrary in
this Agreement, all conversions and continuations of Eurodollar Loans and all selections of
Interest Periods shall be in such amounts and be made pursuant to such elections so that, (a) after
giving effect thereto, the aggregate principal amount of the Eurodollar Loans comprising each
Eurodollar Tranche shall be equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof
and (b) no more than ten Eurodollar Tranches shall be outstanding at any one time.




          2.8 Interest Rates and Payment Dates.




          (a) Each Eurodollar Loan shall bear interest for each day during each Interest Period with
respect thereto at a rate per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin.




          (b) Each ABR Loan shall bear interest at a rate per annum equal to the ABR plus the Applicable
Margin.




          (c) (i) If all or a portion of the principal amount of any Loan shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to the rate that would otherwise be applicable thereto pursuant
to the foregoing provisions of this Section plus 2%, and (ii) if all or a portion of any interest
payable on any Loan or any fee or other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to the rate then applicable to ABR Loans plus 2%, in each case,
with respect to the foregoing clauses (i) and (ii), from the date of such non payment until such
amount is paid in full (as well after as before judgment).




          (d) Interest shall be payable in arrears on each Interest Payment Date, provided that interest
accruing pursuant to paragraph (c) of this Section 2.8 shall be payable from time to time on
demand.




          2.9 Computation of Interest and Fees.






34









 








          (a) Interest and fees payable pursuant hereto shall be calculated on the basis of a 360-day
year for the actual days elapsed, except that, with respect to ABR Loans the rate of interest on
which is calculated on the basis of the Prime Rate, the interest thereon shall be calculated on the
basis of a 365- (or 366-, as the case may be) day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Borrower and the Lenders of each
determination of a Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR or the Eurocurrency Reserve Requirements shall become effective as of the opening
of business on the day on which such change becomes effective. The Administrative Agent shall as
soon as practicable notify the Borrower and the Lenders of the effective date and the amount of
each such change in interest rate.




          (b) Each determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the
absence of manifest error. The Administrative Agent shall, at the request of the Borrower, deliver
to the Borrower a statement showing the quotations used by the Administrative Agent in determining
any interest rate pursuant to Section 2.8(a).




          2.10 Inability to Determine Interest Rate. If prior to the first day of any Interest
Period:




          (a) the Administrative Agent shall have determined (which determination shall be conclusive
and binding upon the Borrower) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest
Period, or




          (b) the Administrative Agent shall have received notice from the Required Lenders that the
Eurodollar Rate determined or to be determined for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period,



the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the
Lenders as soon as practicable thereafter. If such notice is given (x) any Eurodollar Loans
requested to be made on the first day of such Interest Period shall be made as ABR Loans, (y) any
Loans that were to have been converted on the first day of such Interest Period to Eurodollar Loans
shall be continued as ABR Loans and (z) any outstanding Eurodollar Loans shall be converted, on the
last day of the then-current Interest Period, to ABR Loans. Until such notice has been withdrawn
by the Administrative Agent, no further Eurodollar Loans shall be made or continued as such, nor
shall the Borrower have the right to convert Loans to Eurodollar Loans.




          2.11 Pro Rata Treatment and Payments.




          (a) Each payment by the Borrower on account of any fee payable to the Lenders shall be made
pro rata according to the respective Term Percentages of the Lenders.




          (b) Each payment (including each prepayment) by the Borrower on account of principal of and
interest on the Loans shall be made ratably according to the respective outstanding principal
amounts of the Loans then held by the Lenders. The amount of each principal prepayment of the
Loans shall be applied to reduce ratably the then remaining




35









 







installments of the Loans (including
the final installment of the Loans due on the Maturity Date); provided that any optional
prepayments made pursuant to Section 2.4 during the first 60 days following the Closing Date shall
be applied to reduce the then remaining installments of the Loans in direct order of maturity.
Amounts prepaid on account of the Loans may not be reborrowed.




          (c) All payments (including prepayments) to be made by the Borrower hereunder, whether on
account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and
shall be made prior to 12:00 Noon, New York City time, on the due date thereof to the
Administrative Agent, for the account of the Lenders, at the Payment Office, in Dollars and in
immediately available funds. The Administrative Agent shall distribute such payments to the
Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than
payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such
payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan
becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended
to the next succeeding Business Day unless the result of such extension would be to extend such
payment into another calendar month, in which event such payment shall be made on the immediately
preceding Business Day. In the case of any extension of any payment of principal pursuant to the
preceding two sentences, interest thereon shall be payable at the then applicable rate during such
extension.




          (d) Unless the Administrative Agent shall have been notified in writing by the Borrower prior
to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make
such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is
making such payment, and the Administrative Agent may, but shall not be required to, in reliance
upon such assumption, make available to the Lenders their respective pro rata shares of a
corresponding amount. If such payment is not made to the
Administrative Agent by the Borrower within three Business Days after such due date, the
Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount
which was made available pursuant to the preceding sentence, such amount with interest thereon at
the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall
be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.




          2.12 Requirements of Law.




          (a) If the adoption of or any change in any Requirement of Law or in the interpretation or
application thereof or compliance by any Lender with any request or directive (whether or not
having the force of law) from any central bank or other Governmental Authority made subsequent to
the date hereof:





     (i) shall subject any Lender to any tax of any kind whatsoever with respect to
this Agreement or any Eurodollar Loan made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for Non-Excluded Taxes covered by
Section 2.13 and changes in the rate of tax on the overall net income of such
Lender);



36









 






     (ii) shall impose, modify or hold applicable any reserve, special deposit,
compulsory loan or similar requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans or other extensions of credit
by, or any other acquisition of funds by, any office of such Lender that is not
otherwise included in the determination of the Eurodollar Rate; or




     (iii) shall impose on such Lender any other condition;


and the result of any of the foregoing is to increase the cost (other than taxes) to such Lender,
by an amount that such Lender deems to be material, of converting into, continuing or maintaining
Eurodollar Loans, or to reduce any amount receivable hereunder in respect thereof, then, in any
such case, the Borrower shall promptly pay such Lender, after the Borrower is provided with written
notice thereof and the notice referred to in Section 2.12(c) below, any additional amounts
necessary to compensate such Lender for such increased cost or reduced amount receivable. If any
Lender becomes entitled to claim any additional amounts pursuant to this paragraph, it shall
promptly notify the Borrower (with a copy to the Administrative Agent) of the event by reason of
which it has become so entitled.




          (b) If any Lender shall have determined that the adoption of or any change in any Requirement
of Law regarding capital adequacy or in the interpretation or application thereof or compliance by
such Lender or any corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental Authority made
subsequent to the date hereof shall have the effect of reducing the rate of return on such Lender’s
or such corporation’s capital as a consequence of its obligations hereunder to a level below that
which such Lender or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender’s or such
corporation’s policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, after submission by such Lender to the Borrower (with a copy
to the Administrative Agent) of a written request therefor, the Borrower shall pay to such Lender
such additional amount or amounts as will compensate such Lender or such corporation for such
reduction.




          (c) A certificate as to any additional amounts payable pursuant to this Section 2.12 submitted
by any Lender to the Borrower (with a copy to the Administrative Agent) shall be conclusive in the
absence of manifest error. Notwithstanding anything to the contrary in this Section 2.12, the
Borrower shall not be required to compensate a Lender pursuant to this Section 2.12 for any amounts
incurred more than nine months prior to the date that such Lender notifies the Borrower of such
Lender’s intention to claim compensation therefor; provided that, if the circumstances giving rise
to such claim have a retroactive effect, then such nine-month period shall be extended to include
the period of such retroactive effect. The obligations of the Borrower pursuant to this Section
2.12 shall survive the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.




          2.13 Taxes.




          (a) All payments made by the Borrower under this Agreement shall be made free and clear of,
and without deduction or withholding for or on account of, any present or





37









 







future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding net
income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the
Administrative Agent or any Lender as a result of a present or former connection between the
Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing
such tax or any political subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Administrative Agent or such Lender having executed, delivered
or performed its obligations or received a payment under, or enforced, this Agreement or any other
Loan Document). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions
or withholdings (“Non-Excluded Taxes”) or Other Taxes are required to be withheld from any
amounts payable to the Administrative Agent or any Lender hereunder, the amounts so payable to the
Administrative Agent or such Lender shall be increased to the extent necessary to yield to the
Administrative Agent or such Lender (after payment of all Non-Excluded Taxes and Other Taxes)
interest or any such other amounts payable hereunder at the rates or in the amounts specified in
this Agreement, provided, however, that the Borrower shall not be required to increase any such
amounts payable to the Administrative Agent or any Lender with respect to any Non-Excluded Taxes
(i) that are attributable to such Lender’s failure to comply with the requirements of paragraph (d)
or (e) of this Section or (ii) that are attributable to a change in such Lender’s tax residence,
change such Lender’s documentation provided in paragraph (d) or (e) of this Section 2.13 or to a
change in other circumstances of such Lender from the date that such Lender became a party to this
Agreement or (iii) that are withholding taxes imposed on amounts payable to such Lender that were
required to be imposed with respect to payments made to such Lender under applicable law existing
at the time that such Lender became a party to this Agreement.




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




          (c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the Borrower, as promptly as
possible thereafter the Borrower shall send to the Administrative Agent for its own account or for
the account of the relevant Lender, as the case may be, a certified copy of an original official
receipt received by the Borrower showing payment thereof. If the Borrower fails to pay any
Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority or fails to remit to
the Administrative Agent the required receipts or other required documentary evidence, the Borrower
shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as a result of any such
failure.




          (d) Each Lender (or Transferee) that is not a “U.S. Person” as defined in Section 7701(a)(30)
of the Code (a “Non U.S. Lender”) shall deliver to the Borrower and the Administrative
Agent (or, in the case of a Participant, to the Lender from which the related participation shall
have been purchased) two copies of either U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI,
or, in the case of a Non U.S. Lender claiming exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, a statement
substantially in the form of Exhibit I and a Form W-8BEN, or any subsequent versions thereof or
successors thereto, properly completed and duly executed by such Non U.S. Lender claiming complete
exemption from, or a reduced rate of, U.S.





38









 







federal withholding tax on all payments by the Borrower
under this Agreement and the other Loan Documents. Such forms shall be delivered by each Non U.S.
Lender on or before the date it becomes a party to this Agreement (or, in the case of any
Participant, on or before the date such Participant purchases the related participation). In
addition, each Non U.S. Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Non U.S. Lender. Each Non-U.S. Lender shall
promptly notify the Borrower at any time it determines that it is no longer in a position to
provide any previously delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any other provision of
this paragraph, a Non U.S. Lender shall not be required to deliver any form pursuant to this
paragraph that such Non U.S. Lender is not legally able to deliver but in which case such Non-U.S.
Lender shall not be entitled to the benefits of this Section 2.13.




          (e) A Lender that is entitled to an exemption from or reduction of non-U.S. withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law or reasonably requested by the Borrower, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without withholding or at a
reduced rate, provided that such Lender is legally entitled to complete, execute and deliver such
documentation and in such Lender’s judgment such completion, execution or submission would not
materially prejudice the legal position of such Lender but, if such Lender does not complete,
execute and deliver such documentation, such Lender shall not be entitled to the benefits of this
Section 2.13.




          (f) If the Administrative Agent or any Lender determines, in its sole discretion, that it has
received a refund of any Non-Excluded Taxes or Other Taxes as to which it has been indemnified by
the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this
Section 2.13, it shall pay over such refund to the Borrower (but only to the extent of indemnity
payments made, or additional amounts paid, by the Borrower under this Section 2.13 with respect to
the Non-Excluded Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent or such Lender and without interest (other than any interest
paid by the relevant Governmental Authority with respect to such refund); provided that the
Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount
paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative
Agent or such Lender is required to repay such refund to such Governmental Authority. This
paragraph shall not be construed to require the Administrative Agent or any Lender to make
available its tax returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.




          (g) The agreements in this Section 2.13 shall survive the termination of this Agreement and
the payment of the Loans and all other amounts payable hereunder.




          2.14 Indemnity. The Borrower agrees to indemnify each Lender for, and to hold each
Lender harmless from, any loss or expense that such Lender may sustain or incur as a consequence of
(a) default by the Borrower in making a conversion into or continuation of





39









 







Eurodollar Loans after
the Borrower has given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment of or conversion from Eurodollar
Loans after the Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (c) the making of a prepayment of Eurodollar Loans on a day that is not the last day
of an Interest Period with respect thereto. Such indemnification may include an amount equal to
the excess, if any, of (i) the amount of interest that would have accrued on the amount so prepaid,
or not so borrowed, converted or continued, for the period from the date of such prepayment or of
such failure to borrow, convert or continue to the last day of such Interest Period (or, in the
case of a failure to borrow, convert or continue, the Interest Period that would have commenced on
the date of such failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any) over (ii) the
amount of interest (as reasonably determined by such Lender) that would have accrued to such Lender
on such amount by placing such amount on deposit for a comparable period with leading banks in the
interbank eurodollar market. A certificate as to any amounts payable pursuant to this Section 2.14
submitted to the Borrower by any Lender shall be conclusive in the absence of manifest error. This
covenant shall survive the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.




SECTION 3. REPRESENTATIONS AND WARRANTIES




          To induce the Administrative Agent and the Lenders to enter into this Agreement, the Borrower
hereby represents and warrants on the Closing Date to the Administrative Agent and each Lender
that:




          3.1 Financial Condition.




          (a) The unaudited projected pro forma consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at December 31, 2007 (including the notes thereto) (the “Pro Forma
Balance Sheet”), copies of which have heretofore been furnished to each Lender, has been
prepared giving effect (as if such events had occurred on such date) to (i) the consummation of the
Reorganization Plan, (ii) the Senior Subordinated Notes to be issued on the Closing Date, (iii) the
loans to be made under the Exit Facility Agreement on the Closing Date, (iv) the Loans deemed to
have been made on the Closing Date and (iv) the payment of fees and expenses in connection with the
foregoing. The Pro Forma Balance Sheet has been prepared based on the information available to the
Borrower as of the date of delivery thereof, and presents fairly in all material respects on a pro
forma basis the estimated financial position of Borrower and its consolidated Subsidiaries as at
December 31, 2007, assuming that the events specified in the preceding sentence had actually
occurred at such date.




          (b) The audited consolidated balance sheets of the Borrower and its consolidated Subsidiaries
as at December 31, 2006 and December 31, 2005, and the related consolidated statements of income
and of cash flows for the fiscal years ended on such dates, reported on by and accompanied by an
unqualified report from Ernst & Young LLP, present fairly the consolidated financial condition of
the Group Members as at such date, and the consolidated results of its operations and its
consolidated cash flows for the respective fiscal years then ended. The unaudited consolidated
balance sheet of the Group Members as at





40









 







September 30, 2007, and the related unaudited consolidated
statements of income and cash flows for the nine-month period ended on such date, present fairly
the consolidated financial condition of the Group Members as at such date, and the consolidated
results of its operations and its consolidated cash flows for the nine-month period then ended
(subject to normal year end audit adjustments). All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by the aforementioned firm of
accountants and disclosed therein). No Group Member has any material Guarantee Obligations,
contingent liabilities and liabilities for taxes, or any long term leases or unusual forward or
long term commitments, including any interest rate or foreign currency swap or exchange transaction
or other obligation in respect of derivatives, that are not (x) reflected in the most recent
financial statements referred to in this paragraph, (y) Swap Agreements permitted by Section 6.12
or (z) the Borrower’s contingent obligation to make a loan to the “Trust” (as defined in the
Reorganization Plan) in an aggregate amount of $140,000,000, in accordance with Section 8.22 of the
Reorganization Plan.




          3.2 No Change. Since December 31, 2006, there has been no development or event that
has had a Material Adverse Effect.




          3.3 Existence; Compliance With Law. Each Loan Party (a) is duly organized, validly existing and in good standing under
the laws
of the jurisdiction of its organization, (b) has the power and authority, and the legal right, to
own and operate its property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign corporation and in
good standing under the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification except to the extent the
failure to so qualify or be in good standing could not, in the aggregate, reasonably be expected to
have a Material Adverse Effect, and (d) is in compliance with all Requirements of Law except to the
extent that the failure to comply therewith could not, in the aggregate, reasonably be expected to
have a Material Adverse Effect.




          3.4 Power; Authorization; Enforceable Obligations. Each Loan Party has the power and
authority, and the legal right, to make, deliver and perform the Loan Documents to which it is a
party. Each Loan Party has taken all necessary organizational action to authorize the execution,
delivery and performance of the Loan Documents to which it is a party and, in the case of the
Borrower, to authorize the extensions of credit on the terms and conditions of this Agreement. No
consent or authorization of, filing with, notice to or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with the Reorganization Plan
and the extensions of credit hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or any of the Loan Documents, except (i) consents, authorizations,
filings and notices described in Schedule 3.4, which consents, authorizations, filings and notices
have been obtained or made and are in full force and effect and (ii) the filings referred to in
Section 3.14. Each Loan Document has been duly executed and delivered on behalf of each Loan Party
party thereto. This Agreement constitutes, and each other Loan Document upon execution and
delivery will constitute, a legal, valid and binding obligation of each Loan Party party thereto,
enforceable against each such Loan Party in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights




41









 







generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).




          3.5 No Legal Bar. The execution, delivery and performance of this Agreement and the
other Loan Documents, and the Loans deemed made hereunder will not violate any Requirement of Law
or any Contractual Obligation of any Loan Party and will not result in, or require, the creation or
imposition of any Lien on any of their respective properties or revenues pursuant to any
Requirement of Law or any such Contractual Obligation (other than the Liens created by the Security
Documents).




          3.6 Litigation. Except as disclosed on Schedule 3.6, no litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of
the Borrower, threatened against any Group Member or against any of their respective properties or
revenues (a) that calls into question the validity or enforceability of the Loan Documents or that
seeks to enjoin any of the transactions contemplated thereby, or (b) that could reasonably be
expected to have a Material Adverse Effect.




          3.7 No Default. No Group Member is in default under any of its Contractual
Obligations in any respect that could reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.




          3.8 Ownership of Property; Liens. Each Loan Party has title in fee simple to, or a
valid leasehold interest in, all its real property subject to the Mortgages, and good title to, or
a valid leasehold interest in, all its material other property, and none of such property is
subject to any Lien except as permitted by Section 6.3.




          3.9 Intellectual Property. Each Loan Party owns, or is licensed to use, all
Intellectual Property necessary for the conduct of its business as currently conducted. No
material claim has been asserted and is pending by any Person challenging or questioning the use of
any Intellectual Property or the validity or effectiveness of any Intellectual Property, nor does
the Borrower know of any valid basis for any such claim. To the knowledge of the Borrower, the use
of Intellectual Property by each Loan Party does not infringe on the rights of any Person in any
material respect.




          3.10 Taxes. Each Group Member has filed or caused to be filed all Federal, material
state and other material tax returns that are required to be filed and has paid all taxes shown to
be due and payable on said returns or on any material assessments made against it or any of its
property and all other material taxes, fees or other charges imposed on it or any of its property
by any Governmental Authority (other than any the amount or validity of which are currently being
contested in good faith by appropriate proceedings and with respect to which reserves in conformity
with GAAP have been provided on the books of the relevant Group Member); no material tax Lien has
been filed with respect to any Group Member, and, to the knowledge of the Borrower, no material
claim is being asserted against any Group Member, with respect to any such tax, fee or other
charge.




          3.11 Investment Company Act; Other Regulations. No Loan Party is an “investment
company”, or a company “controlled” by an “investment company”, within the




42









 







meaning of the
Investment Company Act of 1940, as amended. No Loan Party is subject to regulation under any
Requirement of Law (other than Regulation X of the Board) that limits its ability to incur
Indebtedness.




          3.12 Subsidiaries. Schedule 3.12 sets forth the name and jurisdiction of incorporation of each Subsidiary and,
as to each such Subsidiary, the percentage of each class of Capital Stock owned by any Loan Party.
There are no outstanding subscriptions, options, warrants, calls, rights or other agreements or
commitments (other than stock options granted to employees or directors and directors’ qualifying
shares) of any nature relating to any Capital Stock of the Borrower or any other Loan Party, except
as created by the Loan Documents or pursuant to the Reorganization Plan.




          3.13 Accuracy of Information, etc. No statement or information contained in this
Agreement, any other Loan Document or any other document, certificate or statement furnished by or
on behalf of any Loan Party to the Administrative Agent or the Lenders, or any of them, for use in
connection with the transactions contemplated by this Agreement or the other Loan Documents (when
taken as a whole together with the Borrower’s public filings with the SEC), contained as of the
date such statement, information, document or certificate was so furnished, in light of the
circumstances under which they were made, any untrue statement of material fact or omitted to state
a material fact necessary to make the statements contained herein or therein not materially
misleading. Any projections and pro forma financial information delivered in connection herewith
are based upon good faith estimates and assumptions believed by management of the Borrower to be
reasonable at the time made, it being recognized by the Lenders that such financial information as
it relates to future events is not to be viewed as fact and that actual results during the period
or periods covered by such financial information may differ from the projected results set forth
therein by a material amount.




          3.14 Security Documents.




          (a) Each of the Security Documents (other than the Mortgages) is effective to create in favor
of the Collateral Trustee a legal, valid and enforceable security interest in the Collateral
described therein for the benefit of the Lenders. When the actions described in Schedule 3.14(a)
in respect of each such Security Document have been taken, the Collateral Trustee shall have,
pursuant to each such Security Document, a fully perfected Lien on, and security interest in, all
right, title and interest of the Loan Parties in such Collateral, as security for the “Second
Priority Obligations” described therein.




          (b) Each of the Mortgages is effective to create in favor of the Collateral Trustee, for the
benefit of the Lenders, a legal, valid and enforceable Lien on the Mortgaged Properties described
therein and proceeds thereof, and when each Mortgage is filed in the offices specified on Schedule
3.14(b), the Collateral Trustee shall have, pursuant to such Mortgage, a fully perfected Lien on,
and security interest in, all right, title and interest of the Loan Parties in the applicable
Mortgaged Properties described therein, as security for the “Second Priority Obligations” described
therein. Schedule 1.1E lists, as of the Closing Date, each parcel of owned real property and each
leasehold interest in real property located in the United States and held by the Borrower or any
Loan Party that is a Domestic Subsidiary that has a value, in the reasonable opinion of the
Borrower, in excess of $5,000,000.




43









 








          3.15 Regulation H. No Mortgage encumbers improved real property that is located in an
area having special flood hazards and in which flood insurance has been made available under the
National Flood Insurance Act of 1968, other than properties for which the Borrower has satisfied
the requirements of Section 4.1(q)(iv).




          3.16 Environmental Matters. Other than as set forth on Schedule 3.16 and exceptions
to any of the following that, in the aggregate, could not reasonably be expected to result in a
Material Environmental Loss:




          (a) all Group Members: (i) are, and within the period of all applicable statutes of
limitation have been, in compliance with all applicable Environmental Laws; (ii) hold all
Environmental Permits (each of which is in full force and effect) required for any of their current
or intended operations or for any property owned, leased, or otherwise operated by any of them;
(iii) are, and within the period of all applicable statutes of limitation have been, in compliance
with all of their Environmental Permits; and (iv) reasonably believe that: each of their
Environmental Permits will be timely renewed and complied with, without material expense; any
additional Environmental Permits that may be required of any of them will be timely obtained and
complied with, without material expense; and compliance with any Environmental Law that is or is
expected to become applicable to any of them will be timely attained and maintained, without
material expense;




          (b) Materials of Environmental Concern are not present at, on, under, in or about any real
property now or formerly owned, leased or operated by any Group Member or at any other location
(including without limitation, any location to which Materials of Environmental Concern have been
sent for re-use or recycling or for treatment, storage, or disposal) which could reasonably be
expected to (i) give rise to liability of any Group Member under any applicable Environmental Law
or otherwise result in costs to any Group Member, or (ii) interfere with any Group Member’s
continued operations, or (iii) impair the fair saleable value of any real property owned or leased
by a Group Member.;




          (c) there is no judicial, administrative or arbitral proceeding (including any notice of
violation or alleged violation) under or relating to any Environmental Law to which any Group
Member is, or to the knowledge of any Group Member will be, named as a party that is pending or, to
the knowledge of any Group Member, threatened; and to the knowledge of any Group Member, there are
no judicial, administrative, or arbitral proceedings under or relating to any Environmental Law
pending or threatened against any Person other than a Group Member that could reasonably be
expected to affect a Group Member;




          (d) no Group Member has entered into or agreed to any consent decree, order, or settlement or
other agreement, or is subject to any judgment, decree, or order or other agreement, in any
judicial, administrative, arbitral, or other forum for dispute resolution, relating to compliance
with or liability under any Environmental Law;




          (e) no Group Member has received any written request for information, or been notified that it
is a potentially responsible party under or relating to the federal Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended,




44









 







or any similar Environmental Law, or
with respect to any Materials of Environmental Concern; and




          (f) no Group Member has assumed or retained, by contract or operation of law, any liabilities
of any kind, fixed or contingent, known or unknown, under any Environmental Law or with respect to
any Materials of Environmental Concern.




          3.17 Certain Documents. The Borrower has delivered to the Administrative Agent a
complete and correct copy of the Senior Subordinated Note Indenture, the Exit Facility Agreement
and any Additional Liquidity Facility Agreement, including any amendments, supplements or
modifications with respect to any of the foregoing.




SECTION 4. CONDITIONS PRECEDENT




          4.1 Conditions to Closing Date. The agreement of each Lender to enter into this
Agreement is subject to the satisfaction or waiver, prior to or concurrently with entering into
this Agreement on the Closing Date, of the following conditions precedent:




          (a) Loan Agreement; Security Documents. The Administrative Agent shall have received
(i) this Agreement, executed and delivered by the Administrative Agent and the Borrower, (ii) the
Collateral Agreement, executed and delivered by the Borrower and each applicable Guarantor, (iii)
an Acknowledgement and Consent in the form attached to the Collateral Agreement, executed and
delivered by each Issuer (as defined therein), if any, that is not a Loan Party (unless otherwise
agreed by the administrative agent under the Exit Facility), (iv) the Domestic Subsidiary
Guarantee, executed by each applicable Guarantor, (v) each Foreign Subsidiary Guarantee, executed
and delivered by each applicable Guarantor, (vi) each Foreign Pledge Agreement, executed and
delivered by each applicable Loan Party and (viii) the Collateral Trust Agreement, executed by each
party thereto.




          (b) DIP Facility. The Administrative Agent shall have received reasonably
satisfactory evidence that (i) the commitments under the DIP Facility have been terminated, all
letters of credit issued thereunder (other than those letters of credit issued under the DIP
Facility (if any) which shall be deemed issued under the Exit Facility) shall have expired or been
cancelled, and all amounts outstanding thereunder (including, without limitation, all fees accrued
but unpaid thereunder to the Closing Date, whether or not then payable under the terms thereof)
have been repaid in full (which termination and repayment may be contemporaneous with the
satisfaction of the conditions under this Section and the application of proceeds of any Borrowings
and the issuance of any letters of credit under the Exit Facility Agreement to occur on the Closing
Date); and (ii) satisfactory arrangements shall have been made for the termination of all Liens and
guarantees granted in connection therewith.




          (c) [Reserved].




          (d) Exit Facility. The Administrative Agent shall have received a certificate
executed by a Responsible Officer of the Borrower certifying that all conditions precedent to the
effectiveness of the Exit Facility Agreement shall have been satisfied or waived in accordance with
its terms.





45









 








          (e) Senior Subordinated Notes Indenture. The Administrative Agent shall have received
reasonably a certificate executed by a Responsible Officer of the Borrower certifying that all
conditions precedent to the effectiveness of the Senior Subordinated Notes Indenture shall have
been satisfied or waived in accordance with its terms and the Senior Subordinated Notes shall have
been issued.




          (f) Intercreditor Arrangements. The Administrative Agent shall have received the
Intercreditor Agreement, executed and delivered by all parties thereto.




          (g) Reorganization Plan. The Effective Date shall have occurred.




          (h) Pro Forma Balance Sheet; Financial Statements. The Lenders shall have received
(i) the Pro Forma Balance Sheet, (ii) audited consolidated financial statements of the Group
Members for the 2006 and 2005 fiscal years and (iii) unaudited interim consolidated financial
statements of the Group Members for each fiscal month and quarter ended after the date of the
latest applicable financial statements delivered pursuant to clause (ii) of this paragraph as to
which such financial statements are available.




          (i) Approvals. All governmental and third party approvals (including consents from
landlords of real property leased by the Loan Parties in the United States at which Inventory
having a value in excess of $10,000,000 is located as specified on Schedule 4.1(i)
(provided, however, that the Borrower shall only be required to exercise
commercially reasonable efforts to obtain such landlord consents)) necessary in connection with
this Agreement and the Reorganization Plan, the continuing operations of the Loan Parties and the
transactions contemplated hereby 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 that would restrain, prevent or otherwise impose adverse conditions on the
Reorganization Plan or the transactions contemplated hereby.




          (j) Lien Searches. The Administrative Agent shall have received the results of a
recent Lien search in each of the domestic jurisdictions where (x) the Loan Parties are organized
and (y) real estate of the Loan Parties is located (which Lien searches may be copies of such
search delivered as a condition to the closing under the Exit Facility), and such search shall
reveal no liens on any of the assets of the Loan Parties except for Liens permitted by Section 6.3
or discharged on or prior to the Closing Date pursuant to documentation reasonably satisfactory to
the Administrative Agent.




          (k) Environmental Reports. The Administrative Agent shall have received any
environmental reports regarding environmental matters affecting any Group Member which are
delivered by any Group Member in connection with the Exit Facility.




          (l) Fees. The Lenders and the Administrative Agent shall have received all fees
required to be paid, and all expenses for which invoices have been presented (including the
reasonable fees and expenses of legal counsel and financial advisors), pursuant to the Prepetition
Credit Agreement, the final order in respect of the DIP Facility, this Agreement, the other Loan
Documents, and the Confirmation Order (which receipt may be contemporaneous with, or so long as on
the Effective Date, subsequent to, the delivery of the other closing deliverables under





46









 







this
Section 4.1 and the application of any borrowings and issuance of any letters of credit under the
Exit Financing to occur on the Effective Date).




          (m) Supporting Documents. The Administrative Agent shall have received for each of
the Loan Parties:





     (i) a copy of such Loan Party’s Organizational Documents, as amended up to and
including the Closing Date, certified as of a recent date by the applicable
Governmental Authority of such Loan Party’s jurisdiction incorporation, organization
or formation;




     (ii) (x) with respect to the Borrower and each Loan Party that is a Domestic
Subsidiary, a good standing certificate from the applicable Governmental Authority
of such Loan Party’s jurisdiction of incorporation, organization or formation and
from the State of Michigan (to the extent such Loan Party is qualified to do
business in the State of Michigan), each dated a recent date prior to the Closing
Date and (y) with respect to the Borrower, recent evidence of its qualification to
do business as a foreign corporation in each State of the United States of America;




     (iii) with respect to any Loan Party that is a Foreign Subsidiary, such
customary evidence of its legal existence, its power and authority to enter into the
Loan Documents to which it is a party and the incumbency and signatures of its
officers or other representatives and such other documents or evidence as the
administrative agent under the Exit Facility requests;




     (iv) signature and incumbency certificates of the officers of such Loan Party
executing the Loan Documents to which it is a party, dated as of the Closing Date;




     (v) duly adopted resolutions of the board of directors or similar governing
body of such Loan Party approving and authorizing the execution, delivery and
performance of this Agreement and the other Loan Documents to which it is a party or
by which it or its assets may be bound as of the Closing Date, certified as of the
Closing Date by its secretary or assistant secretary as being in full force and
effect without modification or amendment; and




     (vi) such other similar documents as the Administrative Agent may reasonably
request.



          (n) Opinion of Counsel. The Administrative Agent and the Lenders shall have received
(i) the favorable written opinion of counsel to the Loan Parties substantially in the
form of Exhibit H and (ii) such other legal opinions as are also provided to the lenders under
the Exit Facility (with such modifications to make such opinions applicable to this Agreement and
the other Loan Documents), in each case addressed to the Administrative Agent and the Lenders.




          (o) Pledged Stock; Stock Powers; Pledged Notes. The Collateral Trustee shall have
received (i) the certificates representing the shares of Capital Stock pledged pursuant to the





47









 







Collateral Agreement and each Foreign Pledge Agreement (to the extent certificated), together with
an undated stock power for each such certificate executed in blank by a duly authorized officer of
the pledgor thereof (or such other instrument of transfer required under local law) and (ii) each
promissory note (if any) pledged to the Collateral Trustee pursuant to the Collateral Agreement and
each Foreign Pledge Agreement endorsed (without recourse) in blank (or accompanied by an executed
transfer form in blank) by the pledgor thereof.




          (p) Filings, Registrations and Recordings. Each document (including any Uniform
Commercial Code financing statement) required by the Security Documents or under law or reasonably
requested by the Collateral Trustee or the Administrative Agent to be filed, registered or recorded
in order to create in favor of the Collateral Trustee for the benefit of the Lenders, a perfected
Lien on the Collateral described therein, prior and superior in right to any other Person (other
than with respect to Liens expressly permitted by Section 6.3), shall be in proper form for filing,
registration or recordation.




          (q) Mortgages. (i) The Collateral Trustee and the Administrative Agent shall have
received a Mortgage with respect to each Mortgaged Property, executed and delivered by a duly
authorized officer of each party thereto.





     (ii) If requested by the Administrative Agent at least thirty (30) days prior
to the Closing Date, the Administrative Agent shall have received, and the title
insurance company issuing the policy referred to in clause (iii) below (the “Title
Insurance Company”) shall have received, an as-built land survey of the sites of the
Mortgaged Properties dated within three (3) years of the Closing Date, by an
independent professional licensed land surveyor reasonably satisfactory to the
Administrative Agent and the Title Insurance Company, which surveys shall be made in
accordance with the Minimum Standard Detail Requirements for Land Title Surveys
jointly established and adopted by the American Land Title Association (“ALTA”) and
the American Congress on Surveying and Mapping in 1992, and, without limiting the
generality of the foregoing, there shall be surveyed and shown on such surveys the
following: (A) the locations on such sites of all the buildings, structures and
other improvements and the established building setback lines; (B) the lines of
streets abutting the sites and width thereof; (C) all access and other easements
appurtenant to the sites; (D) all roadways, paths, driveways, easements,
encroachments and overhanging projections and similar encumbrances affecting the
site, whether recorded, apparent from a physical inspection of the sites or
otherwise known to the surveyor; (E) any encroachments on any adjoining property by
the building structures and improvements on the sites; and (F) the flood zone
designations, if any, in which the Mortgaged Properties are located (provided that
if the Administrative Agent determines that it is reasonable to do so, the
Administrative Agent may accept a
survey in respect of any parcel of Mortgaged Property not conforming to the
requirements specified above in this clause (ii)).




     (iii) The Administrative Agent shall have received in respect of each Mortgaged
Property a mortgagee’s title insurance policy (or policies) or marked up
unconditional binder for such insurance. Each such policy shall (A) be in an



48









 






amount
reasonably satisfactory to the Administrative Agent (not to exceed the fair market
value of such property); (B) insure that the Mortgage insured thereby creates a
valid second Lien on such Mortgaged Property free and clear of all defects and
encumbrances, except as permitted by Section 6.03 or as is otherwise reasonably
acceptable to the Administrative Agent; (C) name the Collateral Trustee or the
Administrative Agent for the benefit of the Lenders as the insured thereunder; (D)
be in the form of ALTA Loan Policy — 1970 (Amended 10/17/70 and 10/17/84) (or
reasonably acceptable equivalent policies); (E) contain such endorsements and
affirmative coverage as the Administrative Agent may reasonably request; and (F) be
issued by title companies reasonably satisfactory to the Administrative Agent
(including any such title companies acting as co-insurers or reinsurers, at the
option of the Administrative Agent) (provided that if the Administrative Agent
determines that it is reasonable to do so, the Administrative Agent may accept a
title insurance policy in respect of any parcel of Mortgaged Property not conforming
to the requirements specified above in this clause (iii)). The Administrative Agent
shall have received evidence satisfactory to it that all premiums in respect of each
such policy, all charges for mortgage recording tax, and all related expenses, if
any, have been paid.




     (iv) If requested by the Administrative Agent at least thirty (30) days prior
to the Closing Date with respect to any Mortgaged Property which includes a material
improvement located within an area designated as flood hazard zone, the
Administrative Agent shall have received (A) a policy of flood insurance that (1)
covers any parcel of improved real property that is encumbered by any Mortgage that
is located in an area that has been identified by the Secretary of Housing and Urban
Development as an area having special flood hazards and in which flood insurance has
been made available under the National Flood Insurance Act of 1968, (2) is written
in an amount not less than the outstanding principal amount of the indebtedness
secured by such Mortgage that is reasonably allocable to such real property or the
maximum limit of coverage made available with respect to the particular type of
property under the National Flood Insurance Reform Act of 1994, whichever is less,
and (3) has a term or series of terms ending not later than the maturity of the
Indebtedness secured by such Mortgage and (B) confirmation that the Borrower has
received the notice required pursuant to Section 208(e)(3) of Regulation H of the
Board.




     (v) The Administrative Agent shall have received a copy of all recorded
documents referred to, or listed as exceptions to title in, the title policy or
policies referred to in clause (iii) above and a copy of all other material
documents in the possession of the any Loan Party affecting the Mortgaged
Properties, in each case to the extent required by the Administrative Agent.
Notwithstanding the foregoing, with respect to any Mortgaged Property
constituting a leasehold interest, the obligations of the Borrower to deliver the
items described in this Section 4.01(q) are subject to the Borrower obtaining any
consents, estoppels or other instruments or documents from third parties which are
necessary in order for the Borrower to comply with its obligations in this



49









 






Section
4.01(q); provided that the Borrower agrees to exercise reasonable efforts to obtain
any such consents, estoppels or other instruments and documents.



          (r) [Reserved].




          (s) Insurance. The Administrative Agent shall have received evidence that all
insurance required by Section 5.5 is in effect.




          (t) Confirmation Order. The Administrative Agent shall have received a copy of the
Confirmation Order, certified by a Responsible Officer to be a true, complete and correct copy of
such document, which (i) shall be in full force and effect and shall not have been stayed,
reversed, modified or amended and (ii) shall approve and authorize the transactions contemplated by
this Agreement, the other Loan Documents and the Reorganization Plan and otherwise shall not be
inconsistent with the provisions hereof and thereof.




          (u) Prepetition Letters of Credit. With respect to each letter of credit issued under
the Prepetition Credit Agreement and outstanding on the Effective Date, such letter of credit shall
have expired or been cancelled or replaced with letters of credit issued under the Exit Facility
Agreement.




          (v) Representations and Warranties. Each of the representations and warranties made
by any Loan Party in or pursuant to the Loan Documents shall be true and correct on and as of the
Closing Date with the same effect as if made on and as of such date except to the extent such
representations and warranties expressly relate to an earlier date, in which case they shall be
true and correct on and as of such earlier date.




          (w) No Default. No Default or Event of Default shall have occurred and be continuing
on the Closing Date or after giving effect to the Loans deemed made on the Closing Date.




SECTION 5. AFFIRMATIVE COVENANTS




          The Borrower hereby agrees that so long as any Loan or other amount is owing to any Lender or
the Administrative Agent hereunder, the Borrower shall and shall cause each of its Subsidiaries to:




          5.1 Financial Statements. Furnish to the Administrative Agent for delivery to the
Lenders:




          (a) as soon as available, but in any event within 120 days after the end of each fiscal year
of the Borrower, a copy of the audited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such year and the related audited consolidated
statements of income and of cash flows for such year, setting forth in each case in
comparative form the figures for the previous year, reported on without a “going concern” or like
qualification or exception, or qualification arising out of the scope of the audit, by Ernst &
Young LLP or other independent certified public accountants of nationally recognized standing; and





50









 








          (b) as soon as available, but in any event not later than 60 days after the end of each of the
first three quarterly periods of each fiscal year of the Borrower, the unaudited consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such quarter and
the related unaudited consolidated statements of income and of cash flows for such quarter and the
portion of the fiscal year through the end of such quarter, setting forth in each case in
comparative form the figures for the previous year, certified by a Responsible Officer as being
fairly stated in all material respects (subject to normal year end audit adjustments).



All such financial statements shall be complete and correct in all material respects and shall be
prepared in reasonable detail and in accordance with GAAP applied (except as approved by such
accountants or officer, as the case may be, and disclosed in reasonable detail therein)
consistently throughout the periods reflected therein and with prior periods.




          5.2 Certificates; Other Information. Furnish to the Administrative Agent:




          (a) concurrently with the delivery of the financial statements referred to in Section 5.1(a),
a certificate of the independent certified public accountants reporting on such financial
statements stating that in making the examination necessary therefor no knowledge was obtained of
any Event of Default as a result of noncompliance with Section 6.1, except as specified in such
certificate;




          (b) concurrently with the delivery of any financial statements pursuant to Section 5.1, (i) a
certificate of a Responsible Officer stating that such Responsible Officer has obtained no
knowledge of any Default or Event of Default except as specified in such certificate and (ii) a
Compliance Certificate containing all information and calculations necessary for determining
compliance with Sections 6.1, 6.2(g), (n), (o), (q), (v), (x) and (z), 6.3(aa), 6.4(g), 6.5(d) and
(q), 6.7, 6.8(h), (j), (k), (t), (u) and (v), 6.11 and 6.18 of this Agreement as of the last day of
the fiscal quarter or fiscal year of the Borrower, as the case may be (it being understood that in
the case of annual financial statements, such Compliance Certificate shall include a calculation of
Adjusted Excess Cash Flow and Adjusted Positive EBITDA Variance for the fiscal year to which such
financial statements relate), (iii) to the extent not previously disclosed to the Administrative
Agent, a description of (x) any Indebtedness owed by any Loan Party to any Excluded Subsidiary, (y)
any Indebtedness permitted under Sections 6.2(g), (h), (j)(ii) or (q) and (z) any Guarantee
Obligation in respect of any Indebtedness permitted under Sections 6.2(g), (h) or (q) to the extent
the amount of such Guarantee Obligation as of the date of incurrence thereof exceeds $10,000,000,
in each case incurred since the date of the most recent report delivered pursuant to this clause
(iii) (or, in the case of the first such report so delivered, since the Closing Date) and (iv) to
the extent not previously disclosed to the Administrative Agent, a
description of any change in the jurisdiction of organization of any Loan Party since the date
of the most recent report delivered pursuant to this clause (iv) (or, in the case of the first such
report so delivered, since the Closing Date);




          (c) as soon as available, and in any event no later than February 28 of each fiscal year of
the Borrower, commencing with February 28, 2008, a detailed consolidated budget for such fiscal
year (including a projected consolidated balance sheet of the Group Members as at the end of such
fiscal year, the related consolidated statements of projected cash flow,





51









 







projected changes in
financial position and projected income and a description of the underlying assumptions applicable
thereto on a business segment basis) (collectively, the “Projections”);




          (d) as soon as available, and in any event no later than February 28 of each fiscal year of
the Borrower, commencing with February 28, 2008, a detailed consolidated strategic plan for such
fiscal year and each of the subsequent fiscal years of the Borrower, through and including the
fiscal year in which the Maturity Date falls (including a projected consolidated balance sheet of
the Group Members as at the end of each such fiscal year, the related consolidated statements of
projected cash flow, projected changes in financial position and projected income and a description
of the underlying assumptions applicable thereto on a business segment basis (collectively, the
“Strategic Plan”)), which Strategic Plan shall in each case be accompanied by a certificate of a
Responsible Officer stating that such Strategic Plan is based on reasonable estimates, information
and assumptions and that such Responsible Officer has no reason to believe that such Strategic Plan
is incorrect or misleading in any material respect;




          (e) as soon as reasonably practical prior to the effectiveness thereof, copies of
substantially final drafts of any proposed amendment, supplement, waiver or other modification with
respect to the Senior Subordinated Notes Indenture or the Exit Facility Agreement;




          (f) concurrently with the delivery of any financial statements pursuant to Section 5.1, a
report setting forth in reasonable detail all Permitted Asset Sales made and Net Cash Proceeds
received during the fiscal quarter most recently ended, any Reinvestment Notices delivered in such
fiscal quarter with respect to such Permitted Asset Sales and the Reinvestment Deferred Amount at
the end of such fiscal quarter, together with a reasonably detailed summary of the investment of
any Reinvestment Deferred Amount made during such fiscal quarter;




          (g) within 45 days after the end of each fiscal quarter of the Borrower, a narrative
discussion and analysis of the financial condition and results of operations of the Group Members
for such fiscal quarter and for the period from the beginning of the then current fiscal year to
the end of such fiscal quarter, as compared to the portion of the Projections covering such periods
and to the comparable periods of the previous year; provided that the foregoing may be
satisfied by delivery of the Borrower’s Annual Report on Form 10-K filed with the Securities and
Exchange Commission or the Borrower’s Quarterly Report on Form 10-Q filed with the Securities and
Exchange Commission, in each case for the applicable quarter; and




          (h) promptly, such additional financial and other information, or arrange such periodic
conference calls with the Borrower and its professionals, as the Administrative Agent may from time
to time reasonably request.




          5.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or before maturity
or before they become delinquent, as the case may be, all its material obligations of whatever
nature, except where the amount or validity thereof is currently being contested in good faith by
appropriate proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the relevant Group Member.





52









 








          5.4 Maintenance of Existence; Compliance. (a)(i) Preserve, renew and keep in full
force and effect its organizational existence and (ii) take all reasonable action to maintain all
rights, privileges and franchises necessary or desirable in the normal conduct of its business,
except, in each case, as otherwise permitted by Section 6.4 and except, in the case of clause (ii)
above, to the extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect; and (b) comply with all Contractual Obligations and Requirements of Law except to
the extent that failure to comply therewith could not, in the aggregate, reasonably be expected to
have a Material Adverse Effect.




          5.5 Maintenance of Property; Insurance. (a) Keep all property material to the
conduct of its business in good working order and condition, ordinary wear and tear excepted and
(b) maintain with financially sound and reputable insurance companies insurance on all its property
in at least such amounts and against at least such risks (but including in any event public
liability, product liability and business interruption) as are usually insured against in the same
general area by companies engaged in the same or a similar business.




          (b) Cause the Collateral Trustee to at all times be named as loss payee with respect to “All
Risk” insurance policies and an additional insured (but without any liability for premiums) under
all general liability insurance policies maintained pursuant to Section 5.5(a).




          5.6 Inspection of Property; Books and Records; Discussions.




          (a) Keep proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings and transactions in
relation to its business and activities.




          (b) Permit representatives of the Administrative Agent or employees of any Lender during
normal business hours (i) to visit and inspect any of its properties and examine and make abstracts
from any of its books and records and as often as may reasonably be desired, but no more than twice
per fiscal year so long as no Event of Default is outstanding, and (ii) to discuss the business,
operations, properties and financial and other condition of the Group Members with officers and
employees of the Group Members and with their independent certified public accountants, in either
case on reasonable prior notice and at the expense of the Administrative Agent or such Lender,
provided that at any time after the occurrence and during
the continuance of an Event of Default, the reasonable costs and expenses of such Lender in
respect of any such inspection shall be at the expense of the Borrower.




          5.7 Notices. Promptly give notice to the Administrative Agent and each Lender of:




          (a) the occurrence of any Default or Event of Default of which any Loan Party has knowledge;




          (b) any default or event of default under any Contractual Obligation of any Group Member of
which any Loan Party has knowledge;




          (c) any litigation, investigation or proceeding affecting any Group Member (other than any
litigation or investigation in which any Group Member is the plaintiff or





53









 







complainant) (i) in which
the amount involved is $25,000,000 or more and not covered by insurance, (ii) in which injunctive
or similar relief is sought, except any such litigation which the Borrower, in consultation with
its counsel, has determined in good faith would not reasonably be expected to have a Material
Adverse Effect, or (iii) which relates to any Loan Document;




          (d) the following events, as soon as reasonably possible and in any event within 45 days after
the Borrower has knowledge thereof: (i) the occurrence of any Reportable Event with respect to any
Plan, a failure to make any required contribution to a Plan, the creation of any Lien in favor of
the PBGC or a Plan or any withdrawal from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking of any other material
action by the PBGC or the Borrower or any Commonly Controlled Entity or any Multiemployer Plan with
respect to the withdrawal from, or the termination, Reorganization or Insolvency of, any Plan;




          (e) (i) any development, event, or condition that, individually or in the aggregate with other
developments, events or conditions, could reasonably be expected to result in the Group Members
sustaining, in the aggregate, a Material Environmental Loss; (ii) any notice that any Governmental
Authority may deny any application for a material Environmental Permit sought by, or revoke or
refuse to renew any material Environmental Permit held by, any Group Member which denial,
revocation or refusal could reasonably be expected to result in a Material Environmental Loss; and
(iii) any Governmental Authority has identified any Group Member as a potentially responsible party
under any Environmental Law for the cleanup of Materials of Environmental Concern at any location,
whether or not owned, leased or operated by any Group Member which identification could reasonably
be expected to result in a Material Environmental Loss; and




          (f) any development or event that has had or could reasonably be expected to have a Material
Adverse Effect promptly after the Borrower has knowledge thereof.




          (g) Each notice pursuant to this Section 5.7 shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein and stating what
action the relevant Group Member proposes to take with respect thereto.




          5.8 Environmental Laws.




          (a) Comply in all material respects with, and use reasonable efforts to ensure compliance in
all material respects by all tenants and subtenants, if any, with, all applicable Environmental
Laws, and obtain and comply in all material respects with and maintain, and use reasonable efforts
to ensure that all tenants and subtenants obtain and comply in all material respects with and
maintain, any and all Environmental Permits.




          (b) Conduct and complete all investigations, studies, sampling and testing, and all remedial,
removal and other actions required under Environmental Laws and promptly comply in all material
respects with all orders and directives of all Governmental Authorities regarding Environmental
Laws, except where the requirement to comply is being contested in good faith by appropriate
proceedings.






54









 








          (c) Generate, use, treat, store, release, dispose of, and otherwise manage Materials of
Environmental Concern in a manner that would not reasonably be expected to result in a Material
Environmental Loss; and take reasonable efforts to prevent any other Person from generating, using,
treating, storing, releasing, disposing of, or otherwise managing Materials of Environmental
Concern in a manner that could reasonably be expected to result in a Material Environmental Loss.




          (d) Promptly deliver to the Administrative Agent any environmental reports regarding
environmental matters affecting any Group Member which are delivered by any Group Member in
connection with the Exit Facility Agreement.




          5.9 Additional Collateral, Additional Loan Parties, etc.




          (a) With respect to any property acquired after the Closing Date by any Loan Party that is not
a Foreign Subsidiary (other than (x) property that would constitute “Excluded Assets” as defined in
the Collateral Agreement, (y) any property described in paragraph (b), (c) or (d) below and (z) any
property subject to a Lien expressly permitted by Section 6.3(g) as to which the Collateral Trustee
does not have a perfected Lien for the benefit of the Lenders, promptly (i) execute and deliver to
the Collateral Trustee and the Administrative Agent such amendments to the Collateral Agreement or
such other documents as the Collateral Trustee or the Administrative Agent deems necessary or
advisable to grant to the Collateral Trustee, for the benefit of the Lenders, a security interest
in such property and (ii) take all actions necessary to perfect each such security interest,
including the filing of Uniform Commercial Code financing statements in such jurisdictions as may
be required by the applicable Security Document or by law.




          (b) With respect to any fee interest in any real property having a value (together with
improvements thereof), in the reasonable opinion of the Borrower, of $5,000,000 or greater acquired
after the Closing Date by any Loan Party (other than any such real property subject to a Lien
expressly permitted by Sections 6.3(g) or 6.3(v) (but, in the case of any
property subject to any Lien permitted by Section 6.3(v), solely if the terms of such Lien
prohibit the granting of a Lien to secure the Obligations so long as such prohibition was not
created in contemplation of the applicable acquisition)), promptly (i) execute and deliver a second
priority Mortgage, in favor of the Collateral Trustee, for the benefit of the Lenders, covering
such real property and (ii) if requested by the Collateral Trustee or the Administrative Agent,
provide the Lenders, with respect to each Mortgage, with (x) a mortgagee’s title insurance policy
covering such real property in an amount at least equal to the purchase price of such real property
and otherwise consistent with the provisions of Section 4.01(q)(iii) as well as a current ALTA
survey thereof, together with a surveyor’s certificate and (y) use its reasonable efforts to cause
to be provided any consents or estoppels reasonably deemed necessary by the Collateral Trustee or
the Administrative Agent in connection with each such Mortgage, each of the foregoing in form and
substance reasonably satisfactory to the Collateral Trustee and the Administrative Agent and (iii)
if requested by the Collateral Trustee or the Administrative Agent, deliver to the Collateral
Trustee and the Administrative Agent legal opinions relating to the matters described above, which
opinions shall be in form and substance, and from counsel, reasonably satisfactory to the
Collateral Trustee and the Administrative Agent. With respect to all Mortgaged Properties,





55









 







maintain a policy of flood insurance as described in Section 4.01(q)(iv) to the extent such policy
was delivered pursuant to Section 4.01(q)(iv) or any other provision of any Loan Document.




          (c) With respect to any new Subsidiary (other than an Excluded Subsidiary) created or acquired
after the Closing Date by any Group Member (which, for the purposes of this paragraph (c), shall
include any existing Subsidiary that ceases to be an Excluded Subsidiary), promptly (i) execute and
deliver to the Collateral Trustee and the Administrative Agent such amendments to the Collateral
Agreement as the Collateral Trustee or the Administrative Agent deems necessary to grant to the
Collateral Trustee, for the benefit of the Lenders, a perfected security interest in the Capital
Stock of such new Subsidiary that is owned by any Group Member, (ii) deliver to the Collateral
Trustee the certificates representing such Capital Stock (to the extent certificated), together
with undated stock powers, in blank, executed and delivered by a duly authorized officer of the
relevant Group Member, (iii) cause such new Subsidiary (A) to become a party to the Domestic
Subsidiary Guarantee and the Collateral Agreement, (B) to take all actions necessary to perfect
each such security interest, including the filing of Uniform Commercial Code financing statements
in such jurisdictions as may be required by the applicable Security Document or by law and (C) to
deliver to the Collateral Trustee and the Administrative Agent each of the documents specified in
Section 4.1(m) (with references in such Section to “Closing Date” being deemed references to the
date on which all the other requirements of this clause (c) are satisfied)), and (iv) if requested
by the Collateral Trustee or the Administrative Agent, deliver to the Collateral Trustee and the
Administrative Agent legal opinions relating to the matters described above, which opinions shall
be in form and substance, and from counsel, reasonably satisfactory to the Collateral Trustee and
the Administrative Agent.




          (d) With respect to any new Excluded Subsidiary created or acquired after the Closing Date by
any Loan Party, promptly (i) execute and deliver to the Collateral Trustee and the Administrative
Agent such amendments to the Collateral Agreement or the applicable Pledge Agreement, or such new
Pledge Agreement, as the Collateral Trustee or the Administrative Agent deems necessary to grant to
the Collateral Trustee, for the benefit of the Lenders, a perfected security interest in the
Capital Stock of such new Subsidiary that is owned by any such Group Member; provided that in no
event shall more than 66% of the total outstanding voting
Capital Stock of any such new Subsidiary be required to be so pledged, (ii) deliver to the
Collateral Trustee the certificates representing such Capital Stock (to the extent certificated),
together with undated stock powers, in blank, executed and delivered by a duly authorized officer
of the relevant Group Member, and take such other action as may be necessary to perfect the
Collateral Trustee’s security interest therein, and (iii) if requested by the Collateral Trustee or
the Administrative Agent, deliver to the Collateral Trustee and the Administrative Agent legal
opinions relating to the matters described above, which opinions shall be in form and substance,
and from counsel, reasonably satisfactory to the Collateral Trustee and the Administrative Agent.




          (e) Without duplication of any obligation set forth in the foregoing clauses of this Section
5.9, with respect to any Subsidiary of the Borrower that at any time pledges any property to secure
the obligations of any Loan Party under the Exit Facility Agreement or the Senior Subordinated
Notes Indenture, or incurs any Guarantee Obligations with respect to any such obligation, promptly
(i) execute and deliver to the Collateral Trustee and the Administrative Agent such amendments to
the Collateral Agreement as the Collateral Trustee or the Administrative Agent deems necessary to
grant to the Collateral Trustee, for the benefit of the





56









 







Lenders, a security interest in such
property, (ii) to the extent any such property is Capital Stock, deliver to the Collateral Trustee
the certificates representing such Capital Stock (to the extent certificated), together with
undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant
Group Member, (iii) cause such Subsidiary (A) to become a party to the Domestic Subsidiary
Guarantee and the Collateral Agreement, (B) to take all actions necessary to perfect each such
security interest, including the filing of Uniform Commercial Code financing statements in such
jurisdictions as may be required by the applicable Security Document or by law and (C) to deliver
to the Collateral Trustee each of the documents specified in Section 4.1(m) (with references in
such Section to “Closing Date” being deemed references to the date on which all the other
requirements of this clause (e) are satisfied), and (iv) if requested by the Collateral Trustee,
deliver to the Collateral Trustee legal opinions relating to the matters described above, which
opinions shall be in form and substance, and from counsel, reasonably satisfactory to the
Collateral Trustee.




          5.10 Post-Closing Obligations. Within 90 days after the Closing Date (or such longer
period as the administrative agent under the Exit Facility may agree in its reasonable discretion),
the Borrower shall execute and deliver Foreign Pledge Agreements in respect of the Capital Stock of
each of the Foreign Subsidiaries listed on Schedule 5.10, if and to the extent that such Capital
Stock then constitutes Collateral (as defined n the Collateral Agreement).




SECTION 6. NEGATIVE COVENANTS




          The Borrower hereby agrees that so long as any Loan or other amount is owing to any Lender or
the Administrative Agent hereunder, the Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly:




          6.1 Financial Condition Covenants.




          (a) Consolidated Senior Leverage Ratio. Permit the Consolidated Senior Leverage Ratio
as at the last day of each period of four consecutive fiscal quarters of the Borrower ending on or
after the last day of the thirteenth fiscal quarter after the Closing Date to exceed 3.90 to 1.00.




          (b) Consolidated Debt Service Coverage Ratio. Permit the Consolidated Debt Service
Coverage Ratio for each period of four consecutive fiscal quarters of the Borrower ending on or
after the last day of the thirteenth fiscal quarter after the Closing Date to be less than 1.10 to
1.00.




          (c) Consolidated EBITDA. Permit Consolidated EBITDA for any period of four
consecutive fiscal quarters of the Borrower ending with any fiscal quarter set forth below to be
less than the amount set forth below opposite such fiscal quarter:




57









 








	 	 	 	 	 
	Fiscal Quarter	 	Consolidated EBITDA
	December 31, 2007
	 	$	700,000,000	 
	March 31, 2008
	 	$	706,250,000	 
	June 30, 2008
	 	$	712,500,000	 
	September 30, 2008
	 	$	718,750,000	 
	December 31, 2008 and each fiscal quarter thereafter
	 	$	725,000,000	 






          6.2 Indebtedness. Create, issue, incur, assume, become liable in respect of or suffer
to exist any Indebtedness, except:




          (a) Indebtedness of any Loan Party pursuant to any Loan Document;




          (b) (i) Indebtedness of the Borrower to any Subsidiary and of any Guarantor to any Group
Member, (ii) Indebtedness of any Subsidiary that is not a Guarantor to any other Subsidiary that is
not a Guarantor and (iii) any Intercompany Loan Owed to U.K. Subsidiaries;




          (c) (i) Guarantee Obligations of any Group Member of Indebtedness of any Loan Party, and (ii)
Guarantee Obligations of any Subsidiary that is not a Guarantor of Indebtedness of any other
Subsidiary that is not a Guarantor;




          (d) Guarantee Obligations of any Group Member in respect of any Foreign Credit Facility and
other Indebtedness of any Excluded Subsidiary permitted under Section 6.2(z);




          (e) Guarantee Obligations of any Person which becomes a Subsidiary of any Group Member or is
merged into any Group Member after the date of this Agreement; provided that (i) such Guarantee
Obligation was in existence on the date such Person became a Subsidiary of, or was merged into,
such Group Member, (ii) such Guarantee Obligation was not created in contemplation of such Person
becoming a Subsidiary of, or merging into, such Group Member and (iii) immediately after giving
effect to the acquisition of such Person by such Group Member, no Default or Event of Default shall
have occurred and be continuing;




          (f) Indebtedness outstanding on the date hereof and listed on Schedule 6.2(f) and any
refinancings, replacements, refundings, renewals or extensions thereof (without increasing, or
shortening the maturity of, the principal amount thereof); provided that this Section
6.2(f) shall not permit the incurrence of any new Indebtedness to refinance, replace, refund, renew
or extend any Indebtedness owing to a Group Member unless the obligee on such new Indebtedness is
also a Group Member;




          (g) Indebtedness (including, without limitation, purchase money Indebtedness and Capital Lease
Obligations) incurred after the Closing Date to finance Capital Expenditures; provided that
the aggregate principal amount of Indebtedness incurred in reliance on this Section 6.2(g) shall
not exceed $100,000,000 in any fiscal year of the Borrower;




          (h) [Reserved];





58









 








          (i) Indebtedness incurred in the ordinary course of business under travel and expense cards,
corporate purchasing cards and car leasing programs, and Guarantee Obligations of the Borrower with
respect to any such Indebtedness;




          (j) (i) Indebtedness of any Excluded Subsidiary to any Loan Party existing on the Closing Date
and (ii) additional Indebtedness of any Excluded Subsidiary to any Loan Party incurred after the
Closing Date and consisting of Intercompany Loans permitted under Section 6.8(h)(ii);




          (k) Intercompany and third-party Indebtedness incurred in the ordinary course of business in
connection with the cash pooling and/or interest set-off arrangements described in Section 6.3(k);




          (l) Indebtedness in connection with Swap Agreements not prohibited by Section 6.12;




          (m) Indebtedness secured by Liens permitted by Section 6.3(a), (b), (c), (d), (e), (i), (l)
and (m) to the extent the obligations secured thereby constitute Indebtedness;




          (n) (i) Indebtedness of the Borrower in respect of the Senior Subordinated Notes in an
aggregate principal amount not to exceed $306,000,000, (ii) Guarantee Obligations of any Guarantor
in respect of such Indebtedness, provided that such Guarantee Obligations are subordinated to the
same extent as the obligations of the Borrower in respect of the Senior Subordinated Notes, and
(iii) any refinancings, replacements, refundings, renewals or extensions of the foregoing (without
increasing, or shortening the maturity of, the principal amount thereof); provided that any
Liens securing any Indebtedness permitted by this Section 6.2(n) shall be
subject at all times to the terms of the Intercreditor Agreement and shall be “Third Priority
Liens” thereunder;




          (o) (i) Indebtedness of the Group Members under the Exit Facility Agreement in an aggregate
principal amount not to exceed $1,418,000,000 (as such amount shall be reduced from time to time as
a result of prepayments and repayments), (ii) Guarantee Obligations of any Group Member in respect
of such Indebtedness, and (iii) any refinancings, replacements, refundings, renewals or extensions
of the foregoing (without increasing the principal amount thereof in effect immediately prior to
such refinancing, replacement, refunding, renewal or extension); provided that any Liens securing
the Indebtedness permitted by this Section 6.2(o) shall be subject at all times to the terms of the
Intercreditor Agreement;




          (p) Other Indebtedness of the Group Members in satisfaction of the Other Unsecured Claims
pursuant to the Reorganization Plan, so long as the aggregate principal amount of Indebtedness
incurred pursuant to this Section 6.2(p) shall not exceed $300,000,000;




          (q) Permitted Subordinated Indebtedness so long as (i) the Net Cash Proceeds thereof received
by any Group Member are applied in accordance with Section 2.5(b) and (ii) after giving effect to
the incurrence thereof the Borrower shall be in compliance with the covenants in Section 6.1 as of
the last day of the fiscal quarter then most recently ended prior to the date of such incurrence
(calculated on a pro forma basis to give effect to the incurrence of





59









 







such Permitted Subordinated
Indebtedness and the application of the proceeds thereof as if each had occurred on the last day of
such fiscal quarter);




          (r) Intercompany Loans incurred in order to consummate the Tax Restructuring (including any
Intercompany Loans arising solely as a result of the recharacterization as Indebtedness of any
equity Investment made by any Group Member in any other Group Member and permitted by Section 6.8);




          (s) Indebtedness of any Person which becomes a Subsidiary or is merged into any Group Member
after the date of this Agreement, provided that (i) such Indebtedness was in existence on the date
such Person became a Subsidiary of, or merged into, such Group Member, (ii) such Indebtedness was
not created in contemplation of such Person becoming a Subsidiary of, or merging into, such Group
Member and (iii) immediately after giving effect to the acquisition of such Person by such Group
Member no Default or Event of Default shall have occurred and be continuing;




          (t) Indebtedness of any Group Member owed to any other Group Member and arising solely as a
result of the recharacterization as Indebtedness of any equity Investment made by any Group Member
in any other Group Member and permitted by Section 6.8;




          (u) (i) Indebtedness (including Guarantee Obligations) incurred by the Borrower and the U.K.
Subsidiaries in connection with the Company Voluntary Arrangements, the U.K. Settlement Agreement
and financing the retention of the Intercompany Loan Notes, and (ii) Intercompany Loans from T&N
Limited to any other U.K. Subsidiary or from any U.K. Subsidiary to T&N Limited in the ordinary
course of business and solely in connection with the
establishment and operation of the consolidated cash management system of the U.K.
Subsidiaries;




          (v) (i) Indebtedness of the Group Members in respect of the Additional Liquidity Facility in
an aggregate principal amount, when added to the amount of Indebtedness outstanding under clause
(o) of this Section 6.2, not to exceed $1,418,000,000 at any one time outstanding and (ii)
Guarantee Obligations of any Group Member in respect of such Indebtedness, including any
refinancings, refundings, renewals or extensions of the foregoing;




          (w) Indebtedness in respect of Securitization Transactions permitted under Section 6.5(d) that
is non-recourse to any Group Member (except for Standard Securitization Undertakings);




          (x) Indebtedness incurred to fund Joint Venture Put Obligations relating to Turkish Joint
Ventures in an aggregate outstanding principal amount not to exceed at any date $200,000,000;




          (y) [Reserved]; and




          (z) Indebtedness of the Group Members not permitted by the foregoing paragraphs of this
Section 6.2 (other than Intercompany Loans) in an aggregate outstanding principal amount for all
Group Members not to exceed at any date $1,000,000,000.





60









 








          6.3 Liens. Create, incur, assume or suffer to exist any Lien upon any of its
property, whether now owned or hereafter acquired, except:




          (a) Liens for taxes, assessments or governmental charges not yet due or that are being
contested in good faith by appropriate proceedings, provided that adequate reserves with respect
thereto are maintained on the books of the Borrower or its Subsidiaries, as the case may be, in
conformity with GAAP or in the case of a Subsidiary located outside the United States, general
accounting principles in effect from time to time in its jurisdiction of incorporation;




          (b) carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other
like Liens arising in the ordinary course of business that are not overdue for a period of more
than sixty (60) days or that are being contested in good faith by appropriate proceedings;




          (c) pledges or deposits in connection with workers’ compensation, unemployment insurance and
other social security legislation;




          (d) deposits to secure the performance of bids, trade contracts (other than for borrowed
money), leases, statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;




          (e) easements, rights-of-way, zoning and similar restrictions and other similar encumbrances
or title defects incurred in the ordinary course of business that do not materially detract from
the value of the property subject thereto or materially interfere with the ordinary conduct of the
business of any Group Member;




          (f) (i) Liens in existence on the date hereof listed on Schedule 6.3(f), securing Indebtedness
in existence on the date hereof and permitted by Section 6.2(f) and (ii) renewals of any Liens
permitted by clause (i) securing Indebtedness permitted by Section 6.2(f) that is a refinancing,
replacement, refunding, renewal or extension of any Indebtedness described in clause (i), provided
that no such Lien permitted by this clause (ii) shall cover any property that is not subject to
such Lien on the date hereof and that the amount of Indebtedness secured thereby is not increased
after the date hereof;




          (g) Liens securing Indebtedness of any Group Member incurred pursuant to Section 6.2(g) to
finance purchase money Indebtedness or any other Capital Expenditure, provided that (i) such Liens
shall be created substantially simultaneously with, or within 60 days after, the making of such
Capital Expenditure and (ii) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness;




          (h) Liens created pursuant to the Security Documents;




          (i) Liens in favor of any Governmental Authority to secure progress, advance or other payments
pursuant to any contract or provision of any statute;





61









 








          (j) Liens on assets of any Excluded Subsidiary to secure Indebtedness of any Group Member
(including Indebtedness of such Excluded Subsidiary) permitted under Section 6.2(z);




          (k) Liens created in the ordinary course of business in favor of banks and other financial
institutions on credit balances of any bank accounts of any Group Member held at such banks or
financial institutions, as the case may be, to facilitate the operation of cash pooling and/or
interest set-off arrangements in respect of such bank accounts in the ordinary course of business;




          (l) Liens arising from leases, subleases or licenses granted to others which do not interfere
in any material respect with the business of any Group Member;




          (m) Liens arising by virtue of any statutory or common law provision relating to bankers’
liens, rights of set-off or similar rights and remedies as to deposit accounts;




          (n) any interest or title of a lessor under any lease entered into by any Group Member in the
ordinary course of its business and covering only the assets so leased;




          (o) Liens securing (i) the Exit Facility, (ii) the Additional Liquidity Facility and (iii) the
Senior Subordinated Notes and any refinancings, replacements, refundings, renewals or extensions of
the foregoing; provided that such Liens in respect of the Senior Subordinated Notes are
subordinated on terms no less favorable on the whole than those set forth in the Intercreditor
Agreement;




          (p) Liens on Receivables and Related Security which arise in connection with any
Securitization Transactions permitted under Section 6.5(d);




          (q) Liens securing Indebtedness permitted by Section 6.2(b) and Section 6.2(j) on the assets
of the Subsidiaries described therein; provided that any such Liens on assets of any Loan
Party shall be subordinated to any and all Liens securing the Obligations and any other Liens
governed by the Intercreditor Agreement on terms and conditions reasonably satisfactory to the
Administrative Agent in its discretion;




          (r) Liens securing Indebtedness permitted by Section 6.2 (i), (r) and (x);




          (s) Liens arising from judgments and attachments in connection with court proceedings,
provided that (i) the attachment or enforcement of such Liens would not result in an Event of
Default hereunder, (iii) such Liens are being contested in good faith by appropriate proceedings,
(iii) no material assets or property of any Group Member is subject to material risk of loss or
forfeiture, and (iv) a stay of execution pending appeal or proceeding for review is in effect;




          (t) Liens on cash or Cash Equivalents to secure the obligations of any Group Member under any
Swap Agreement permitted by Section 6.12;




          (u) Liens securing any Permitted Subordinated Indebtedness;





62









 








          (v) Liens on property or assets acquired by any Group Member or on property or assets of any
Person that becomes a Subsidiary of a Group member, in any such case, existing at the time of the
acquisition thereof (including acquisition through merger or consolidation);




          (w) with respect to each Mortgaged Property, the Liens permitted in the Mortgage for such
Mortgaged Property;




          (x) Liens created under Section 4.7 of the Collateral Trust Agreement in favor of the
Collateral Trustee;




          (y) Liens granted by the Borrower or a Subsidiary upon one or more Intercompany Loan Notes
securing Indebtedness owing to the Borrower or a Subsidiary; provided that any such Liens
on assets of any Loan Party shall be subordinated to any and all Liens securing the Obligations and
any other Liens governed by the Intercreditor Agreement on terms and conditions reasonably
satisfactory to the Administrative Agent in its discretion;




          (z) [Reserved]; and




          (aa) Liens not otherwise permitted by this Section so long (x) as neither (i) the aggregate
outstanding principal amount of the obligations secured thereby nor (ii) the aggregate fair market
value (determined as of the date such Lien is incurred) of the assets subject thereto exceeds as to
all Group Members $150,000,000 at any one time and (y) such Liens do not secure Indebtedness
permitted by Sections 6.2(d), (i), (k), (n), (o), (p), (q), (s), (u) and (v).




          6.4 Fundamental Changes. Enter into any merger, consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), or Dispose of all or substantially all of its
property or business, except pursuant to the U.K. Dissolution and the Company Voluntary
Arrangements and except that:




          (a) (i) any Subsidiary may be merged or consolidated with or into the Borrower (provided that
the Borrower shall be the continuing or surviving corporation) or with or into any Wholly Owned
Subsidiary Guarantor (provided that the continuing or surviving corporation shall be a Wholly Owned
Subsidiary Guarantor) and (ii) any Subsidiary that is not a Guarantor may be merged with or into
any other Subsidiary (and if such other Subsidiary is a Guarantor the survivor shall be a
Guarantor);




          (b) (i) any Subsidiary may Dispose of any or all of its assets (including, without limitation,
transfers of Intercompany Loans or equity Investments) (A) to the Borrower or any Wholly Owned
Subsidiary Guarantor (upon voluntary liquidation or otherwise) or (B) pursuant to a Disposition
permitted by Section 6.5; and (ii) any Subsidiary that is not a Guarantor may Dispose of any or all
of its assets to any other Subsidiary;




          (c) any Investment expressly permitted by Section 6.8 may be structured as a merger,
consolidation or amalgamation;




          (d) any Subsidiary which has Disposed of all of its assets as permitted under this Section 6.4
and Section 6.5 or which otherwise has no assets may be liquidated;





63









 








          (e) the Group Members may consummate the transactions contemplated under the Tax
Restructuring;




          (f) any Joint Venture may be liquidated, provided that (x) the assets and liabilities thereof
are distributed to the owners of such Joint Venture, pro rata, in accordance with such owners’
respective equity interests in such Joint Venture and (y) the Net Cash Proceeds thereof are applied
to prepay the Loans, to the extent required by Section 2.5; and




          (g) any Subsidiary that is not a Guarantor may be liquidated or dissolved so long as the
aggregate book value of the assets of all Subsidiaries that have been dissolved or liquidated
pursuant to this Section 6.4(g), when taken together with the Group Members which are not Loan
Parties which have taken any of the actions described in Section 7(e), shall be less than 10% of
the book value of the consolidated assets of the Group Members, taken as a whole (as set forth in
the most recent audited consolidated financial statements of the Borrower that have been delivered
pursuant to Section 5.1(a) or, until any audited financial statements have been delivered pursuant
to such Section, the Pro Forma Balance Sheet).




          6.5 Disposition of Property. Dispose of any of its property, whether now owned or
hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such
Subsidiary’s Capital Stock to any Person, except:




          (a) the Disposition of obsolete or worn out property in the ordinary course of business;




          (b) the sale of inventory in the ordinary course of business and Dispositions of Cash
Equivalents in the ordinary course of business;




          (c) Dispositions permitted by Section 6.4;




          (d) Dispositions of Receivables pursuant to Factoring Arrangements, so long as, on the last
day of each calendar month, the aggregate amount of Receivables that have been Disposed of pursuant
thereto and that are then outstanding shall not exceed the Factoring Basket then in effect;




          (e) Dispositions pursuant to sale and leaseback transactions permitted pursuant to Section
6.11;




          (f) the sale or issuance of any Subsidiary’s Capital Stock to the Borrower or any Wholly Owned
Subsidiary Guarantor or the sale or issuance of any Excluded Subsidiary’s Capital Stock to any
other Excluded Subsidiary;




          (g) (i) any Permitted Asset Sales; provided that the Net Cash Proceeds thereof are
applied to prepay the Loans, to the extent required by Section 2.5 and (ii) any Disposition that
does not constitute an “Asset Sale” pursuant to clause (ii) of the definition thereof;




          (h) Dispositions in connection with the U.K. Dissolution or the Company Voluntary
Arrangements;






64









 








          (i) Dispositions constituting Investments permitted by Sections 6.8(j);




          (j) Dispositions consisting of (i) operating leases to Loan Parties, (ii) operating leases to
Joint Ventures of assets at a fair market value in an aggregate amount not to exceed at any date
the Joint Venture Basket then in effect and (iii) operating leases to Excluded Subsidiaries of
assets at a fair market value in an aggregate amount not to exceed at any date the Intercompany
Basket then in effect;




          (k) intercompany Dispositions necessary in order to effect the Tax Restructuring;




          (l) the non-exclusive licensing of Intellectual Property in the ordinary course of business
and in a manner consistent with past practices of the Borrower and its Subsidiaries and the
exclusive licensing of Intellectual Property in the ordinary course of business in a manner
consistent with past practices of the Borrower and its Subsidiaries so long as such license is
exclusive only as to geographic area or use;




          (m) transfers of accounts receivable and related rights by F-M Canada to the Borrower;




          (n) involuntary dispositions consisting of property or casualty events or condemnation
proceedings, in each case resulting in a Recovery Event;




          (o) Dispositions of in-plant maintenance, repair and operating and perishable tooling
operations to third parties in connection with the outsourcing of such operations;




          (p) the Wagner Lighting Divestiture; and




          (q) Dispositions of Receivables and Related Security pursuant to Securitization Transactions
that are non-recourse to any Group Member (except for Standard Securitization Undertakings).




          6.6 Restricted Payments. Declare or pay any dividend (other than dividends payable
solely in common stock of the Person making such dividend) on, or make any payment on account of,
or set apart assets for a sinking or other analogous fund for, the purchase, redemption,
defeasance, retirement or other acquisition of, any Capital Stock of any Group Member, whether now
or hereafter outstanding, or make any other distribution in respect thereof, either directly or
indirectly, whether in cash or property or in obligations of any Group Member (collectively,
“Restricted Payments”), except that (a) any Subsidiary may make Restricted Payments to the
Borrower or any Wholly Owned Subsidiary Guarantor, (b) any Subsidiary that is not a Guarantor may
make Restricted Payments to any other Group Member, (c) any Subsidiary may make Restricted Payments
to Persons directly owning Minority Interests, if such Subsidiary shall first have made, or shall
substantially simultaneously make, a Restricted Payment to the Group Member which has an ownership
interest in such Subsidiary in an amount not less than such Group Member’s proportionate share
(based upon such Group Member’s percentage ownership interest in such Subsidiary) of the total
Restricted Payment to be made by such Subsidiary, (d) any Subsidiary may make Restricted Payments
necessary in order to consummate the Tax Restructuring, (e) the Borrower may make Restricted
Payments permitted





65









 







under Section 6.18, (f) any Group Member may make Restricted Payments in
connection with the Company Voluntary Arrangements, the retention of the Intercompany Loan Notes
(without limiting payments relating to Intercompany Loan Notes in connection with the Tax
Restructuring), and the U.K. Dissolution and (g) to the extent that any such payments are made in a
manner that would cause them to be Restricted Payments, the Borrower may make payments to members
of management pursuant to compensation arrangements typical of companies of similar size and scope.




          6.7 Capital Expenditures. Make or commit to make any Capital Expenditure, except
Capital Expenditures of the Group Members in the ordinary course of business in an aggregate amount
at any time during any fiscal year of the Borrower not to exceed $312,000,000; provided
that (a) any such amount, if not so expended in the fiscal year for which it is permitted, may be
carried over for expenditure in the next succeeding fiscal year only and (b) Capital Expenditures
made in any fiscal year shall be deemed made, first, in respect of amounts carried over from the
prior fiscal year pursuant to the foregoing clause (a) and, second, in respect of amounts permitted
for such fiscal year as provided above.




          For purposes of calculating compliance with this Section 6.7, (x) the portion of the Positive
EBITDA Variance applied to make Capital Expenditures pursuant to Section 6.18, shall be excluded in
calculating compliance with this Section 6.7, (y) in the event that the average currency exchange
rate between the Dollar and the euro, during the fiscal year for which compliance is being
determined, exceeds 1.30 to 1.00, the Borrower shall increase the Dollar amount of its actual
Capital Expenditures for such fiscal year by an amount equal to 45% of Capital Expenditures for
such fiscal year, multiplied by the excess over the 1.30 to 1.00 exchange rate, and (z) in the
event that the average exchange rate between the Dollar and the euro, during the fiscal year for
which compliance is being determined, is less than 1.00 to 1.00, the Borrower shall reduce the
Dollar amount of its actual Capital Expenditures for such fiscal year by an amount equal to 45% of
Capital Expenditures for such fiscal year, multiplied by the deficiency under the 1.00 to 1.00
exchange rate.




          The amount of Capital Expenditures permitted hereunder shall be adjusted, at the end of each
fiscal year of the Borrower (a) in the event that a Permitted Acquisition has occurred during such
fiscal year, by increasing the amount of permitted Capital Expenditures for each subsequent fiscal
year of the Borrower by the amount of Capital Expenditures for the business acquired as part of
such Permitted Acquisition approved by the board of directors of the Borrower at the time of such
Permitted Acquisition, and (b) in the event that a Permitted Asset Sale has occurred during such
fiscal year, by reducing the amount of permitted Capital Expenditures for each subsequent fiscal
year of the Borrower by the amount set forth in the Projections most recently delivered pursuant to
Section 5.2(c) allocated for Capital Expenditures for the business subject of such Permitted Asset
Sale.




          6.8 Investments. Make any advance, loan, extension of credit (by way of guaranty or
otherwise) or capital contribution of cash or other property to, or purchase any Capital Stock,
bonds, notes, debentures or other debt securities of, or any assets constituting a business unit
of, or make any other investment in, any Person (all of the foregoing, “Investments”),
except:





66









 








          (a) extensions of trade credit and the conversion of overdue trade receivables into notes
receivables, in each case in the ordinary course of business;




          (b) Investments in Cash Equivalents;




          (c) Guarantee Obligations permitted by Section 6.2;




          (d) loans and advances to employees of any Group Member in the ordinary course of business
(including for travel, entertainment and relocation expenses or pursuant to any Plan) in an
aggregate amount for all Group Members not to exceed $5,000,000 at any one time outstanding;




          (e) Investments consisting of Permitted Net Cash Proceeds Reinvestments made by any Group
Member with the proceeds of any Reinvestment Deferred Amount;




          (f) Investments permitted by Section 6.4(a), (b) and (e);




          (g) Investments consisting of Intercompany Loans permitted under Section 6.2(b), (k), (t) and
(u);




          (h) (i) Investments by any Loan Party in any Excluded Subsidiary existing on the Closing Date,
(ii) additional Investments by any Loan Party in any Excluded Subsidiary in an aggregate
outstanding amount not to exceed on any date the Intercompany Basket in effect at such date
(calculated after giving effect to all proposed Investments to be made on such date pursuant to
this Section 6.8(h)(ii)); provided that the aggregate amount of Investments (other than
Intercompany Loans) made pursuant to this Section 6.8(h)(ii) and outstanding on any date shall not
exceed the Intercompany Basket Sublimit on such date and (iii) Investments in a Foreign Subsidiary
for the purpose of complying with local statutory capitalization requirements in such Foreign
Subsidiary’s host jurisdiction;




          (i) Investments by (i) any Group Member in the Borrower or any Person that, prior to such
investment, is a Guarantor and (ii) any Subsidiary that is not a Guarantor in any Group Member;




          (j) (i) Investments consisting of the Capital Stock of any Person acquired pursuant to any
Joint Venture Put Obligation and (ii) Investments (other than Investments described in clause (i))
in Joint Ventures, including without limitation, Investments in new Joint Ventures, the purchase of
ownership interests in Joint Ventures from Persons that are not Group Members and increases in the
ownership interest of any Group Member in Joint Ventures in an aggregate outstanding amount not to
exceed at any date the Joint Venture Basket in effect on such date (calculated after giving effect
to all proposed Investments to be made on such date pursuant to this Section 6.8(j)(ii));




          (k) Permitted Acquisitions;




          (l) (i) Investments outstanding on the date hereof and listed on Schedule 6.8(l), (ii) equity
Investments of any Group Member in any other Group Member and arising solely as a result of the
recharacterization as an equity investment of any Intercompany Loan





67









 







permitted by Section 6.2 and
(iii) Investments in the form of notes issued by the “Trust” (as defined in the Reorganization
Plan) to the Borrower pursuant to the Reorganization Plan, as follows: (x) a note in the face
amount of $125,000,000 issuable pursuant to Section 8.3.5 of the Reorganization Plan and (y) a note
in the face amount of $140,000,000 issuable pursuant to Section 8.22 of the Reorganization Plan;




          (m) Investments by any Group Member made on or after the Closing Date in existing or potential
suppliers and customers from whom the Borrower reasonably expects to obtain a material commercial
benefit in an aggregate amount (valued at cost) not to exceed $25,000,000 at any one time
outstanding;




          (n) Investments by any Group Member of any Restricted Payment received by such Person that
consists of equity interests in a Subsidiary; provided that if the initial payor of any
such Restricted Payment is a Guarantor, then the ultimate recipient of such Restricted Payment
shall also be a Guarantor;




          (o) Investments by any Group Member necessary to effect the Tax Restructuring;




          (p) Investments in notes receivable payable to any Group Member by the purchasers of assets
purchased pursuant to Dispositions permitted under Section 6.5;




          (q) Investments by the Borrower in any Subsidiary consisting of the issuance of letters of
credit under the Exit Facility Agreement (and the incurrence by the Borrower of Indebtedness
thereunder with respect thereto) to support obligations of such Subsidiary;




          (r) Investments by a U.K. Subsidiary in another U.K. Subsidiary in connection with the Company
Voluntary Arrangements;




          (s) Investments by the Borrower or any of its Subsidiaries in connection with the Anticipated
Japanese Consolidation in an amount not to exceed $10,000,000;




          (t) Investments not otherwise permitted under paragraphs (a) through (s) of this Section 6.8
so long as (i) prior to the making of any such Investment, the Borrower shall have delivered to the
Administrative Agent a certificate of a Responsible Officer, certifying that such Investment has
been approved by a Board Majority and (ii) that the Board Majority has determined that such
Investment is being made with the intent to pursue a strategic transaction with the Person with
respect to which such Investment is being made; it being understood that at any time at which any
Investments made pursuant to this Section 6.8(t) with respect to any Person constitutes an
Acquisition, such Acquisition must also constitute a Permitted Acquisition and comply with the
definition thereof;




          (u) Investments not otherwise permitted under paragraphs (a) through (t) of this Section 6.8,
but excluding Investments in Joint Ventures or in Excluded Subsidiaries, in an aggregate
outstanding amount not to exceed on any date the General Investment Basket in effect on such date;
and





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          (v) On any date, Investments not otherwise permitted under paragraphs (a) through (u) of this
Section 6.8 in an aggregate outstanding amount not to exceed on any date the Proceeds Investment
Basket on such date.




          6.9 Optional Payments and Modifications of Certain Debt Instruments. (a) Make or
offer to make any optional or voluntary payment, prepayment, repurchase or redemption of or
otherwise optionally or voluntarily defease or segregate funds with respect to the Senior
Subordinated Notes, if at the time a Default or Event of Default has occurred and is continuing;
(b) make or offer to make any optional or voluntary payment, prepayment, repurchase or redemption
of or otherwise optionally or voluntarily defease or segregate funds with respect to (i) the
Additional Liquidity Facility, (ii) any Permitted Subordinated Indebtedness or (iii) any
Indebtedness of a Loan Party incurred under Section 6.2(y) or Section 6.2(z) that is not secured as
permitted under Section 6.3(z)(i), unless at the time no Default or Event of Default has occurred
and is continuing and immediately after giving effect thereto (and any Indebtedness incurred in
connection therewith, and the application of the proceeds thereof), the Leverage Ratio is not
greater than 3.5 to 1.0; (c) amend, modify, waive or
otherwise change, or consent or agree to any amendment, modification, waiver or other change
to, any of the terms of (i) the Exit Facility Agreement or the Additional Liquidity Facility
Agreement in a manner that is materially adverse to the Lenders and (ii) the Senior Subordinated
Notes Indenture or any document governing any Permitted Subordinated Indebtedness (other than any
such amendment, modification, waiver or other change that (a) would extend the maturity or reduce
the amount of any payment of principal thereof or reduce the rate or extend any date for payment of
interest thereon and (b) does not involve the payment of a consent fee); or (d) designate any
Indebtedness (other than obligations of the Loan Parties pursuant to the Exit Facility Agreement
and this Agreement) as “Designated Senior Debt” or “Guarantor Senior Debt” (or any other defined
term having similar purposes) for the purposes of the Senior Subordinated Notes Indenture or any
document governing any Permitted Subordinated Indebtedness.




          6.10 Transactions with Affiliates. (a) Except for the Tax Restructuring, the
retention of the Intercompany Loan Notes (without limiting any transactions in connection with the
Tax Restructuring), or pursuant to the U.K. Dissolution, the Company Voluntary Arrangements or
Securitization Transactions permitted under Section 6.5(q), enter into any material transaction,
including any purchase, sale, lease or exchange of property, the rendering of any service or the
payment of any management, advisory or similar fees, with any Affiliate (other than the Borrower or
any Wholly Owned Subsidiary Guarantor) unless such transaction is (i) otherwise permitted under
this Agreement and (ii) upon fair and reasonable terms no less favorable to the relevant Group
Member than it would obtain in a comparable arm’s length transaction with a Person that is not an
Affiliate as determined in good faith by the Borrower or the relevant Group Member and (b) with
respect to any Investment made pursuant to Section 6.8(t), (u) or (v) in, or any Acquisition of,
any Affiliate of any Significant Shareholder, such Investment or Acquisition shall be approved by a
majority of Disinterested Directors relative to such Investment or Acquisition. For the avoidance
of doubt, contemporaneous purchases and/or sales by a Group Member and an Affiliate of assets,
Capital Stock, bonds, notes, debentures or other debt securities, and bank loans, participations or
similar obligations at substantially the same price shall not be deemed transactions with an
Affiliate under this Agreement.





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          6.11 Sales And Leasebacks. Enter into any arrangement with any Person providing for
the leasing by any Group Member of real or personal property that has been or is to be sold or
transferred by such Group Member to such Person or to any other Person to whom funds have been or
are to be advanced by such Person on the security of such property or rental obligations of such
Group Member; provided that (i) the Group Members may consummate sale and leaseback transactions in
which the transferee is the Borrower or a Wholly Owned Subsidiary Guarantor, and any Subsidiary
which is not a Guarantor may consummate sale and leaseback transactions in which the transferor is
another Subsidiary which is not a Guarantor, and (ii) the Group Members may consummate other sale
and leaseback transactions in an amount not to exceed in the aggregate for all Group Members
$150,000,000.




          6.12 Swap Agreements. Enter into any Swap Agreement, except (a) Swap Agreements entered into to hedge or mitigate
risks in respect of changes in commodity prices or currency exchange rates to which any Group
Member has actual exposure and (b) Swap Agreements entered into in order to effectively cap, collar
or exchange interest rates (from fixed to floating rates, from floating to fixed rates, from one
floating rate to another floating rate or otherwise) with respect to any outstanding or prospective
interest-bearing liability or investment of any Group Member from time to time.




          6.13 Changes in Fiscal Periods. Permit the fiscal year of the Borrower to end on a
day other than December 31 or change the Borrower’s method of determining fiscal quarters.




          6.14 Negative Pledge Clauses. Enter into or suffer to exist or become effective any
agreement that prohibits or limits the ability of any Group Member to create, incur, assume or
suffer to exist any Lien upon any of its property or revenues, whether now owned or hereafter
acquired, other than (a) this Agreement and the other Loan Documents, (b) the Exit Facility
Agreement, (c) the Additional Liquidity Facility Agreement, (d) the Senior Subordinated Notes
Indenture, (e) any agreements governing any purchase money Liens or Capital Lease Obligations
otherwise permitted hereby (in which case, any prohibition or limitation shall only be effective
against the assets financed thereby), (f) any agreements with respect to Indebtedness incurred by
the Excluded Subsidiaries and permitted under Section 6.2 imposing any such prohibitions or
limitations on Excluded Subsidiaries (g) any agreement arising pursuant to the Company Voluntary
Arrangements, (h) any agreements binding any Person which becomes a Subsidiary or is merged into
any Group Member after the date of this Agreement, provided that such agreement was in
existence on the date such Person became a Subsidiary of, or merged into, such Group Member and was
not entered into in contemplation of such Person becoming a Subsidiary of, or merging into, such
Group Member, (i) any documentation governing Securitization Transactions permitted under Section
6.5(q), and (j) any agreements to which any Subsidiary that is not a wholly-owned Subsidiary is a
party that prohibit or limit the ability of such Subsidiary or any of its Subsidiaries to create,
incur, assume or suffer to exist any Lien upon any of its property or revenues.




          6.15 Clauses Restricting Subsidiary Distributions. Enter into or become effective any
consensual encumbrance or restriction on the ability of any Subsidiary to (a) make Restricted
Payments in respect of any Capital Stock of such Subsidiary held by, or pay any Indebtedness owed
to, any Group Member, (b) make loans or advances to, or other Investments





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in, any Group Member or
(c) transfer any of its assets to any Group Member, except for such encumbrances or restrictions
existing under or by reason of (i) any restrictions existing under the Loan Documents, (ii) any
restrictions existing under the Senior Subordinated Notes Indenture, (iii) any restrictions under
the Additional Liquidity Facility, (iv) any restrictions under the Exit Facility Agreement, (v) any
restriction that exists or may arise directly as a result of the Company Voluntary Arrangements,
(vi) any restrictions (other than those described in clauses (i) through (v)) in existence on the
date hereof), and (vii) any restrictions with respect to a Subsidiary imposed pursuant to an
agreement that has been
entered into in connection with the Disposition of all or substantially all of the Capital
Stock or assets of such Subsidiary, (viii) any restrictions relating to Excluded Subsidiaries
imposed in connection with the Indebtedness incurred by the Excluded Subsidiaries and permitted
under Sections 6.2, (ix) any restrictions contained in the terms of any Indebtedness permitted
under Section 6.2(s) or any other agreement binding any Person which becomes a Subsidiary or is
merged into any Group Member after the date of this Agreement, provided that such agreement
was in existence on the date such Person became a Subsidiary of, or merged into, such Group Member
and was not entered into in contemplation of such Person becoming a Subsidiary of, or merging into,
such Group Member, (x) any restrictions contained in the documents governing any Securitization
Transaction permitted under Section 6.5(q), and (xi) any restrictions contained in any agreements
to which any Subsidiary that is not a wholly-owned Subsidiary is a party so long as such
restrictions apply solely to such Subsidiary or any of its Subsidiaries.




          6.16 Lines of Business. Enter into any business, either directly or through any
Subsidiary, except for those businesses in which the Group Members are engaged on the date of this
Agreement or that are determined by the Board of Directors of the Borrower to be reasonably related
thereto.




          6.17 [Reserved].




          6.18 Positive EBITDA Variance. Use the 33 1/3% of Adjusted Positive EBITDA Variance
for any fiscal year of the Borrower not required to be applied to the Loans pursuant to Section
2.5(e) or not applied to consummate Permitted Open Market Purchases to the extent permitted under
Section 2.5(e), for purposes other than the general corporate purposes of the Group Members,
provided that in any fiscal year of the Borrower where the Loans are prepaid from Adjusted Excess
Cash Flow pursuant to Section 2.5(d), and so long as no Default or Event of Default has occurred
and is continuing, any Group Member may use such 33 1/3% of Adjusted Positive EBITDA Variance to
make, in such year or any other year thereafter, (i) Restricted Payments not otherwise permitted
under Section 6.6 or (ii) Capital Expenditures in such fiscal year in excess of the amounts
otherwise permitted under Section 6.7.




SECTION 7. EVENTS OF DEFAULT




          If any of the following events shall occur and be continuing:




          (a) the Borrower shall fail to pay any principal of any Loan when due in accordance with the
terms hereof; or the Borrower shall fail to pay any interest on any Loan, or any other amount
payable hereunder or under any other Loan Document, within three Business





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Days after any such
interest or other amount becomes due in accordance with the terms hereof; or




          (b) any Loan Party shall default in the observance or performance of any agreement contained
in clause (i) or (ii) of Section 5.4(a) (with respect to the Borrower only), Section 5.7(a) or
Article 6 of this Agreement; or




          (c) any Loan Party shall default in the observance or performance of any other agreement
contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a)
through (c) of this Section 7.1), and such default shall continue unremedied for a period of 30
days after notice to the Borrower from the Administrative Agent or the Required Lenders; or




          (d) any Group Member shall (i) default in making any payment of any principal of any
Indebtedness (including any Guarantee Obligation, but excluding the Loans and Intercompany Loans)
on the scheduled or original due date with respect thereto, after giving effect to any applicable
period of grace, if any, provided in the instrument or agreement under which such Indebtedness was
created; or (ii) default in making any payment of any interest on any such Indebtedness beyond any
applicable period of grace, if any, provided in the instrument or agreement under which such
Indebtedness was created; or (iii) default in the observance or performance of any other agreement
or condition relating to any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or condition exist, the
effect of which default or other event or condition is to cause, or to permit the holder or
beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to
cause, with the giving of notice if required, such Indebtedness to become due prior to its stated
maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become
payable and any such default under the Exit Facility or the Additional Liquidity Facility shall
continue unremedied or unwaived for a period of thirty days; provided that a default, event or
condition described in clause (i), (ii) or (iii) of this paragraph (d) shall not at any time
constitute an Event of Default unless, at such time, one or more defaults, events or conditions of
the type described in clauses (i), (ii) or (iii) of this paragraph (d) shall have occurred and be
continuing with respect to Indebtedness the outstanding principal amount of which exceeds in the
aggregate (x) $20,000,000 in the case of any Indebtedness (other than Capital Leases or purchase
money Indebtedness) of any Loan Party or (y) $125,000,000 in the case of any Indebtedness of any
Group Member which is not a Loan Party or Capital Leases or purchase money Indebtedness of any Loan
Party; or




          (e) (i) (A) one or more Group Members which are not Loan Parties, together with the
Subsidiaries which have been liquidated or dissolved pursuant to Section 6.4(g), having assets with
an aggregate book value of at least 10% or (B) one or more Loan Parties having assets with an
aggregate book value of at least 1%, in each case, of the book value of the consolidated assets of
the Group Members, taken as a whole (as set forth in the most recent audited consolidated financial
statements of the Borrower that have been delivered pursuant to Section 5.1(a) or, until any
audited financial statements have been delivered pursuant to such Section, the Pro Forma Balance
Sheet) shall commence any case, proceeding or other action (A) under any existing or future law of
any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief
of debtors, seeking to have an order for relief





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entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts,
or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any substantial part of
its assets, or such Group Member or Group Members shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against such Group Member or Group Members any
case, proceeding or other action of a nature referred to in clause (i) above that (A) results in
the entry of an order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of sixty (60) days; or (iii) there shall be
commenced against such Group Member or Group Members any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar process against all or any
substantial part of its assets that results in the entry of an order for any such relief that shall
not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry
thereof; or (iv) such Group Member or Group Members shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) such Group Member or Group Members shall generally not, or shall
be unable to, or shall admit in writing its inability to, pay its debts as they become due;
provided that no Event of Default shall have occurred under this paragraph as a result of any U.K.
Subsidiary being in U.K. Administration and being a debtor in a case pending under Chapter 11 of
the Bankruptcy Code, so long as such U.K. Administration and such case were each in effect on the
Closing Date; or




          (f) (i) any Person shall engage in any “prohibited transaction” (as defined in Section 406 of
ERISA or Section 4975 of the Code) involving any Plan, (ii) any “accumulated funding deficiency”
(as defined in Section 302 of ERISA), whether or not waived, shall exist with respect to any Plan
or any Lien in favor of the PBGC or a Plan shall arise on the assets of any Group Member or any
Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect to, or proceedings
shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required Lenders, likely to result in
the termination of such Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) any Group Member or any Commonly Controlled Entity
shall, or in the reasonable opinion of the Required Lenders is likely to, incur any material
liability in connection with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or exist with respect to a
Plan; and in each case in clauses (i) through (v) above, such event or condition, together with all
other such events or conditions, if any, could, in the reasonable judgment of the Required Lenders,
reasonably be expected to have a Material Adverse Effect; or




          (g) one or more judgments or decrees (excluding any judgment or decree in connection with the
implementation of any Company Voluntary Arrangement or the Reorganization Plan) shall be entered
against (i) any Loan Party involving in the aggregate a liability (not paid or fully covered by
insurance as to which the relevant insurance company has acknowledged coverage) of $20,000,000 or
more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded
pending appeal within 30 days from the entry





73









 







thereof or (ii) any Group Member that is not a Loan
Party which, individually or in the aggregate for all such Group Members, could reasonably be
expected to have a Material Adverse Effect; or




          (h) (i) any of the Security Documents or the Intercreditor Agreement shall cease, for any
reason, to be in full force and effect, or any Loan Party or any Affiliate of any Loan Party or any
party to the Intercreditor Agreement shall so assert, or (ii) any Lien securing the Obligations
created by any of the Security Documents shall cease to be enforceable and of the same effect and
priority purported to be created thereby; or




          (i) any Guarantee shall cease, for any reason, to be in full force and effect or any Loan
Party or any Affiliate of any Loan Party shall so assert; or




          (j) a Change of Control shall occur; or




          (k) the Senior Subordinated Notes or any Permitted Subordinated Indebtedness, the guarantees
of the Senior Subordinated Indebtedness or any Permitted Subordinated Indebtedness or the Liens in
respect of the Senior Subordinated Notes or any Permitted Subordinated Indebtedness shall cease,
for any reason, to be subordinated to the Obligations, the obligations of the Guarantors under any
Guarantee or the Liens securing the Obligations granted pursuant to the Security Documents, as the
case may be;




then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or
(ii) of paragraph (f) above with respect to the Borrower, automatically the Loans (with accrued
interest thereon) and all other amounts owing under this Agreement and the other Loan Documents
shall immediately become due and payable, and (B) if such event is any other Event of Default, with
the consent of the Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Borrower, declare the Loans
(with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan
Documents to be due and payable forthwith, whereupon the same shall immediately become due and
payable. Except as expressly provided above in this Section 7.1, presentment, demand, protest and
all other notices of any kind are hereby expressly waived by the Borrower.




SECTION 8. THE ADMINISTRATIVE AGENT




          8.1 Appointment. Each Lender hereby irrevocably designates and appoints the
Administrative Agent as the agent of such Lender under this Agreement and the other Loan Documents,
and each such Lender irrevocably authorizes the Administrative Agent, in such capacity, to take
such action on its behalf under the provisions of this Agreement and the other Loan Documents and
to exercise such powers and perform such duties as are expressly delegated to the Administrative
Agent by the terms of this Agreement and the other Loan Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent shall not have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Administrative Agent.





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          8.2 Delegation of Duties. The Administrative Agent may execute any of its duties under this Agreement and the other
Loan Documents by or through agents or attorneys in fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys in fact selected by it with
reasonable care.




          8.3 Exculpatory Provisions. Neither the Administrative Agent nor any of its officers,
directors, employees, agents, attorneys in fact or affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in connection with this
Agreement or any other Loan Document (except to the extent that any of the foregoing are found by a
final and nonappealable decision of a court of competent jurisdiction to have resulted from its or
such Person’s own gross negligence or willful misconduct) or (ii) responsible in any manner to any
of the Lenders for any recitals, statements, representations or warranties made by any Loan Party
or any officer thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other Loan Document or for
the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or for any failure of any Loan Party a party thereto to perform its
obligations hereunder or thereunder. The Administrative Agent shall not be under any obligation to
any Lender to ascertain or to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of any Loan Party.




          8.4 Reliance by Administrative Agent. The Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any instrument, writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of legal counsel
(including counsel to the Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of any Note as the
owner thereof for all purposes unless a written notice of assignment, negotiation or transfer
thereof shall have been filed with the Administrative Agent. The Administrative Agent shall be
fully justified in failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the Required Lenders (or, if
so specified by this Agreement, all Lenders) as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and expense that may
be incurred by it by reason of taking or continuing to take any such action. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from acting, under this
Agreement and the other Loan Documents in accordance with a request of the Required Lenders (or, if
so specified by this Agreement, all Lenders), and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Lenders and all future holders of the Loans.




          8.5 Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence
of any Default or Event of Default unless the Administrative Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a “notice





75









 







of default”. In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Required Lenders (or, if so specified by this Agreement, all
Lenders); provided that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Lenders.




          8.6 Non-Reliance on Administrative Agent and Other Lenders. Each Lender expressly
acknowledges that neither the Administrative Agent nor any of its officers, directors, employees,
agents, attorneys in fact or affiliates have made any representations or warranties to it and that
no act by the Administrative Agent hereafter taken, including any review of the affairs of a Loan
Party or any affiliate of a Loan Party, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property, financial and other
condition and creditworthiness of the Loan Parties and their affiliates and made its own decision
to make its Loans hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon the Administrative Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the time, continue to make
its own credit analysis, appraisals and decisions in taking or not taking action under this
Agreement and the other Loan Documents, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder,
the Administrative Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Loan Party or any affiliate of a Loan Party that
may come into the possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys in fact or affiliates.




          8.7 Indemnification. The Lenders agree to indemnify the Administrative Agent in its
capacity as such (to the extent not reimbursed by the Borrower and without limiting the obligation
of the Borrower to do so), ratably according to their respective Term Percentages in effect on the
date on which indemnification is sought under this Section 8.7 (or, if indemnification is sought
after the date upon which the Loans shall have been paid in full, ratably in accordance with such
Term Percentages immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any
kind whatsoever that may at any time (whether before or after the payment of the Loans) be
imposed on, incurred by or asserted against the Administrative Agent in any way relating to or
arising out of, this Agreement, any of the other Loan Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby or any action
taken or omitted by the Administrative Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions,





76









 







judgments, suits, costs, expenses or
disbursements that are found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the Administrative Agent’s gross negligence or willful
misconduct. The agreements in this Section 8.7 shall survive the payment of the Loans and all
other amounts payable hereunder.




          8.8 Administrative Agent in Its Individual Capacity. The Administrative Agent and its
affiliates may make loans to, accept deposits from and generally engage in any kind of business
with any Loan Party as though the Administrative Agent were not the Administrative Agent. With
respect to its Loans made or renewed by it, the Administrative Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as
though it were not the Administrative Agent, and the terms “Lender” and “Lenders” shall include the
Administrative Agent in its individual capacity.




          8.9 Successor Administrative Agent. The Administrative Agent may resign as
Administrative Agent upon 30 days’ notice to the Lenders and the Borrower. If the Administrative
Agent shall resign as Administrative Agent under this Agreement and the other Loan Documents, then
the Required Lenders shall appoint a successor agent for the Lenders, which successor agent shall
(unless an Event of Default shall have occurred and be continuing) be subject to approval by the
Borrower (which approval shall not be unreasonably withheld or delayed), whereupon such successor
agent shall succeed to the rights, powers and duties of the Administrative Agent, and the term
“Administrative Agent” shall mean such successor agent effective upon such appointment and
approval, and the former Administrative Agent’s rights, powers and duties as Administrative Agent
shall be terminated, without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Agreement or any holders of the Loans. If no
successor agent has accepted appointment as Administrative Agent by the date that is 30 days
following a retiring Administrative Agent’s notice of resignation, the retiring Administrative
Agent’s resignation shall nevertheless thereupon become effective, and the Lenders shall assume and
perform all of the duties of the Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for above. After any retiring
Administrative Agent’s resignation as Administrative Agent, the provisions of this Section 8 shall
inure to its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan Documents.




SECTION 9. MISCELLANEOUS




          9.1 Amendments and Waivers. Neither this Agreement, any other Loan Document, nor any terms hereof or thereof may be
amended, supplemented or modified except in accordance with the provisions of this Section 9.1.
The Required Lenders and each Loan Party party to the relevant Loan Document may, or, with the
written consent of the Required Lenders, the Administrative Agent and each Loan Party party to the
relevant Loan Document may, from time to time, (a) enter into written amendments, supplements or
modifications hereto and to the other Loan Documents for the purpose of adding any provisions to
this Agreement or the other Loan Documents or changing in any manner the rights of the Lenders or
of the Loan Parties hereunder or thereunder or (b) waive, on such terms and conditions as the
Required Lenders or the Administrative Agent, as the case may be, may specify in such instrument,
any of the requirements of this Agreement or the other Loan Documents or any Default or Event of




77









 







Default and its consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) forgive the principal amount or extend the final scheduled
date of maturity of any Loan, extend the scheduled date of any amortization payment in respect of
any Loan, reduce the stated rate of any interest or fee payable hereunder (except (x) in connection
with the waiver of applicability of any post-default increase in interest rates (which waiver shall
be effective with the consent of the Required Lenders) and (y) that any amendment or modification
of defined terms used in the financial covenants in this Agreement shall not constitute a reduction
in the rate of interest or fees for purposes of this clause (i)) or extend the scheduled date of
any payment thereof, in each case without the written consent of each Lender directly affected
thereby; (ii) eliminate or reduce the voting rights of any Lender under this Section 9.1 without
the written consent of such Lender; (iii) reduce any percentage specified in the definition of
Required Lenders, consent to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement and the other Loan Documents, release all or substantially all of
the Collateral or release all or substantially all of the Guarantors from their obligations under
the Guarantees, in each case without the written consent of all Lenders; or (iv) amend, modify or
waive any provision of Section 8 without the written consent of the Administrative Agent. Any such
waiver and any such amendment, supplement or modification shall apply equally to each of the
Lenders and shall be binding upon the Loan Parties, the Lenders, the Administrative Agent and all
future holders of the Loans. In the case of any waiver, the Loan Parties, the Lenders and the
Administrative Agent shall be restored to their former position and rights hereunder and under the
other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and
not continuing; but no such waiver shall extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon.




          9.2 Notices. All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing (including by telecopy), and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered, or three Business
Days after being deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrower and the Administrative Agent, and as set
forth in an administrative questionnaire delivered to the Administrative Agent in the case of the
Lenders, or to such other address as may be hereafter notified by the respective parties hereto:




	 	 	 
	Borrower:

	 	Federal-Mogul Corporation
	 

	 	World Headquarters
	 

	 	26555 Northwestern Highway
	 

	 	Southfield, Michigan 48033
	 

	 	Attention: David A. Bozynski
	 

	 	Telecopy: 248-354-6746
	 

	 	Telephone: 248-354-9469
	 
	 	 
	 

	 	With a copy to: Robert L. Katz
	 

	 	Telecopy: 248-354-2659
	 

	 	Telephone: 248-354-9924






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	Administrative Agent:

	 	JPMorgan Chase Bank, N.A.
	 

	 	277 Park Avenue
	 

	 	8th Floor Mail Code NY1-2134
	 

	 	New York, New York 10172
	 

	 	Attention: Ms. Ann Kurinskas
	 

	 	Telecopy: 212-622-4527
	 

	 	Telephone: 212-622-4556/7





provided that any notice, request or demand to or upon the Administrative Agent or the
Lenders shall not be effective until received.




          Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent; provided
that the foregoing shall not apply to notices pursuant to Section 2 unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the Borrower may, in
its discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it, provided that approval of such procedures may
be limited to particular notices or communications.




          9.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Administrative Agent or any Lender, any right, remedy, power or
privilege hereunder or under the other Loan Documents shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.




          9.4 Survival of Representations and Warranties. All representations and warranties
made hereunder, in the other Loan Documents and in any document, certificate or statement delivered
pursuant hereto or in connection herewith shall survive the execution and delivery of this
Agreement and the making of the Loans hereunder.




          9.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or reimburse the Administrative Agent for all its
reasonable
out of pocket costs and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith, and the
consummation and administration hereof and of the transactions contemplated hereby and thereby,
including the reasonable fees and disbursements of counsel and financial advisors to the
Administrative Agent and filing and recording fees and expenses, with statements with respect to
the foregoing to be submitted to the Borrower prior to the Closing Date (in the case of amounts to
be paid on the Closing Date) and from time to time thereafter on a periodic basis as the
Administrative Agent shall deem appropriate, (b) to pay or reimburse each Lender and the
Administrative Agent for all its reasonable costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement, the other Loan Documents and any
such other documents, including the reasonable fees and disbursements of counsel (including the
allocated fees and expenses of in-house counsel) to each Lender and of counsel and financial
advisors to the Administrative Agent, (c) to pay, indemnify, and hold each Lender and the
Administrative Agent




79









 







harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp, excise and other taxes,
if any, that may be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration hereof and of any of the transactions contemplated
by, or any amendment, supplement or modification of, or any waiver or consent under or in respect
of, this Agreement, the other Loan Documents and any such other documents, and (d) to pay,
indemnify, and hold each Lender and the Administrative Agent and their respective officers,
directors, employees, affiliates, agents and controlling persons (each, an “Indemnitee”) harmless
from and against any and all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to
the execution, delivery, enforcement, performance and administration of this Agreement, the other
Loan Documents and any such other documents, including any of the foregoing relating to the use of
proceeds of the Loans or the violation of, noncompliance with or liability under, any Environmental
Law applicable to the operations of any Group Member or any property at any time owned, leased, or
in any way used by any Group Member or any entity for which any of them is alleged to be
responsible, and the reasonable fees and expenses of legal counsel in connection with claims,
actions or proceedings by any Indemnitee against any Loan Party under any Loan Document (all the
foregoing in this clause (d), collectively, the “Indemnified Liabilities”), provided that the
Borrower shall have no obligation hereunder to any Indemnitee with respect to Indemnified
Liabilities to the extent such Indemnified Liabilities are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from the gross negligence or willful
misconduct of such Indemnitee. Without limiting the foregoing, and to the extent permitted by
applicable law, the Borrower agrees not to assert and to cause its Subsidiaries not to assert, and
hereby waives and agrees to cause its Subsidiaries to waive, all rights for contribution or any
other rights of recovery with respect to all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature, under or related to
Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee.
All amounts due under this Section 9.5 shall be payable not later than 10 days after written demand
therefor. Statements payable by the Borrower pursuant to this Section 9.5 shall be submitted to
the Borrower at the address of the Borrower set forth in Section 9.2, or to such other Person or
address as may be hereafter
designated by the Borrower in a written notice to the Administrative Agent. The agreements in
this Section 9.5 shall survive repayment of the Loans and all other amounts payable hereunder.




          9.6 Successors and Assigns; Participations and Assignments.




          (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby, except that (i) the
Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower
without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer
its rights or obligations hereunder except in accordance with this Section 9.6.




          (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to one or more assignees other than to any Group Member (each, an “Assignee”) all or a portion of
its rights and obligations under this Agreement (including all or a





80









 







portion of the Loans at the
time owing to it) with the prior written consent (such consent not to be unreasonably withheld) of:





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




     (B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment of all or any
portion of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.




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




     (A) except in the case of an assignment to a Lender, an affiliate of a
Lender or an Approved Fund or an assignment of the entire remaining amount
of the assigning Lender’s Loans, the amount of the Loans of the assigning
Lender subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to
the Administrative Agent) shall not be less than $1,000,000 unless each of
the Borrower and the Administrative Agent otherwise consent, provided that
(1) no such consent of the Borrower shall be required if an Event of Default
has occurred and is continuing and (2) such amounts shall be aggregated in
respect of each Lender and its affiliates or Approved Funds, if any;




     (B) the amount of the Loans of the assigning Lender, after giving
effect to any such assignment, shall not be less than $5,000,000,
provided that such amounts shall be aggregated in respect of each
Lender and its affiliates or Approved Funds, if any;




     (C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500;




     (D) the Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an administrative questionnaire; and




     (E) if any rights and obligations under this Agreement are assigned to
an Affiliate of a Group Member or of a Significant Shareholder, the vote of
such Affiliate as a Lender under this Agreement shall not be counted for
purposes of any determination by the Required Lenders as set forth in the
definition thereof.



          For the purposes of this Section 9.6, the term “Approved Fund” has the following meaning:






81









 








          “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.





     (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv)
below, from and after the effective date specified in each Assignment and Assumption
the Assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this
Agreement, such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 2.12, 2.13, 2.14 and 9.5). Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this Section 9.6 shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in accordance
with paragraph (c) of this Section 9.6.




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




     (v) Upon its receipt of a duly completed Assignment and Assumption executed by
an assigning Lender and an Assignee, the Assignee’s completed administrative
questionnaire (unless the Assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section 9.6 and
any written consent to such assignment required by paragraph (b) of this Section
9.6, the Administrative Agent shall accept such Assignment and Assumption and record
the information contained therein in the Register. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph. Any assignment or transfer of all or part of a Loan
evidenced by a Note shall be registered on the Register only upon surrender for
registration of assignment or transfer of the Note evidencing such Loan, accompanied
by a duly executed Assignment and Assumption.



82









 





          (c) (i) Any Lender may, without the consent of the Borrower or the Administrative Agent, sell
participations to one or more banks or other entities (a “Participant”) in all or a portion
of such Lender’s rights and obligations under this Agreement (including all or a portion of the
Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall
remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (C) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. Any agreement pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole right to enforce
this Agreement and to approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement may provide that such Lender will not, without the consent
of the Participant, agree to any amendment, modification or waiver that (1) requires the consent of
each Lender directly affected thereby pursuant to the proviso to the second sentence of Section 9.1
and (2) directly affects such Participant. Subject to paragraph (c)(ii) of this Section 9.6, the
Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.12, 2.13 and
2.14 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant
to paragraph (b) of this Section 9.6. To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 9.7(b) as though it were a Lender, provided such Participant
shall be subject to Section 9.7(a) as though it were a Lender.




          (ii) A Participant shall not be entitled to receive any greater payment under Section 2.12 or
2.13 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such Participant is
made with the Borrower’s prior written consent. Any Participant that is a Non-U.S. Lender shall
not be entitled to the benefits of Section 2.13 unless such Participant complies with Sections
2.13(d) and (e).




          (d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge or assignment of a
security interest shall release a Lender from any of its obligations hereunder or substitute any
such pledgee or Assignee for such Lender as a party hereto.




          (e) The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue
Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph
(d) above.




          9.7 Adjustments; Set off.




          (a) Except to the extent that this Agreement expressly provides for payments to be allocated
to a particular Lender, if any Lender (a “Benefitted Lender”) shall receive any payment of all or
part of the Obligations owing to it, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set off, pursuant to events or proceedings of the nature referred
to in Section 7(f), or otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of the Obligations owing to such other





83









 







Lender,
such Benefitted Lender shall purchase for cash from the other Lenders a participating interest in
such portion of the Obligations owing to each such other Lender, or shall provide such other
Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefitted
Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or benefits is thereafter
recovered from such Benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.




          (b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall
have the right, without prior notice to the Borrower, any such notice being expressly waived by the
Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and
appropriate and apply against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at
any time held or owing by such Lender or any branch or agency thereof to or for the credit or the
account of the Borrower. Each Lender agrees promptly to notify the Borrower and the Administrative
Agent after any such setoff and application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such setoff and application.




          9.8 Counterparts. This Agreement may be executed by one or more of the parties to
this Agreement on any number of separate counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument. Delivery of an executed signature
page of this Agreement by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof. A set of the copies of this Agreement signed by all the parties shall
be lodged with the Borrower and the Administrative Agent.




          9.9 Severability. Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.




          9.10 Integration. This Agreement and the other Loan Documents represent the entire
agreement of the Borrower, the Administrative Agent and the Lenders with respect to the subject
matter hereof and thereof, and there are no promises, undertakings, representations or warranties
by the Administrative Agent or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.




          9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK.




          9.12 Submission To Jurisdiction; Waivers. The Borrower hereby irrevocably and
unconditionally:





84









 








          (a) submits for itself and its property in any legal action or proceeding relating to this
Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement
of any judgment in respect thereof, to the non exclusive general jurisdiction of the courts of the
State of New York, the courts of the United States for the Southern District of New York, and
appellate courts from any thereof;




          (b) consents that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;




          (c) agrees that service of process in any such action or proceeding may be effected by mailing
a copy thereof by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in Section 9.2 or at such other address of which
the Administrative Agent shall have been notified pursuant thereto;




          (d) agrees that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to sue in any other jurisdiction; and




          (e) waives, to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section 9.12 any special, exemplary,
punitive or consequential damages.




          9.13 Acknowledgements. The Borrower hereby acknowledges that:




          (a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents;




          (b) neither the Administrative Agent nor any Lender has any fiduciary relationship with or
duty to the Borrower arising out of or in connection with this Agreement or any of the other Loan
Documents, and the relationship between Administrative Agent and Lenders, on one hand, and the
Borrower, on the other hand, in connection herewith or therewith is solely that of debtor and
creditor; and




          (c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by
virtue of the transactions contemplated hereby among the Lenders or among the Borrower and the
Lenders.




          9.14 No Requirement of Lender Signatures. Each Lender listed on Schedule 1.1A shall
be a party hereto in accordance with the Reorganization Plan and, pursuant to the Reorganization
Plan, is bound hereby notwithstanding the failure of any such Lender to execute a signature page
hereto.




          9.15 Releases of Guarantees and Liens.




          (a) Notwithstanding anything to the contrary contained herein or in any other Loan Document,
the Administrative Agent is hereby irrevocably authorized by each Lender (without requirement of
notice to or consent of any Lender except as expressly required by





85









 







Section 9.1) to take any action
requested by the Borrower having the effect of releasing any Collateral or guarantee obligations
(i) to the extent necessary to permit consummation of any transaction not prohibited by any Loan
Document or that has been consented to in accordance with Section 9.1 or (ii) under the
circumstances described in paragraph (b) below.




          (b) At such time as the Loans and the other obligations under the Loan Documents shall have
been paid in full, the Collateral shall be released from the Liens created by the Security
Documents, and the Security Documents and all obligations (other than those expressly stated to
survive such termination) of the Administrative Agent and each Loan Party under the Security
Documents shall terminate, all without delivery of any instrument or performance of any act by any
Person.




          9.16 Confidentiality. Each of the Administrative Agent and the Lenders agrees to keep
confidential all non-public information provided to it by any Loan Party, the Administrative Agent
or any Lender or any advisor to any of the foregoing pursuant to or in connection with this
Agreement that is designated in writing by the provider thereof as confidential; provided that
nothing herein shall prevent the Administrative Agent or any Lender from disclosing any such
information (a) to the Administrative Agent, any other Lender or any affiliate thereof, (b) subject
to an agreement to comply with the provisions of this Section 9.16, to any actual or prospective
Transferee, (c) to its employees, directors, agents, attorneys, accountants and other professional
advisors or those of any of its affiliates, (d) upon the request or demand of any Governmental
Authority, (e) in response to any order of any court or other Governmental Authority or as may
otherwise be required pursuant to any Requirement of Law, (f) if requested or required to do so in
connection with any litigation or similar proceeding, provided that prior notice of such disclosure
shall be given to the Borrower, if possible, (g) that has been publicly disclosed, (h) to the
National Association of Insurance Commissioners or any similar organization or any nationally
recognized rating agency that requires access to information about a Lender’s investment portfolio
in connection with ratings issued with respect to such Lender, or (i) in connection with the
exercise of any remedy hereunder or under any other Loan Document. Notwithstanding anything herein
to the contrary, any party subject to confidentiality obligations hereunder or under any other
related document (and any employee, representative, or other agent of such party) may disclose to
any and all Persons, without limitation of any kind, such party’s U.S. federal income tax treatment
and U.S. federal income tax structure of the transactions contemplated by this Agreement relating
to such party and all materials of any kind (including opinions or other tax analyses) that are
provided to it relating to such tax treatment and tax structure. However, no such party shall
disclose any information relating to such tax treatment or tax structure to the extent
nondisclosure is reasonably necessary in order to comply with applicable securities law.




          9.17 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.





86









 








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




	 	 	 	 	 
	 	FEDERAL-MOGUL CORPORATION

 	 
	 	By:  	/s/ David A. Bozynski
 	 
	 	 	Name:  	David A. Bozynski 	 
	 	 	Title:  	Vice President and Treasurer 	 
	 
	 	JPMORGAN CHASE BANK, N.A., as Administrative Agent and as a Lender

 	 
	 	By:  	/s/Ann Kurinskas
 	 
	 	 	Name:  	Ann Kurinskas 	 
	 	 	Title:  	Managing Director