exv10w1






Exhibit 10.1




THIRD AMENDMENT TO CREDIT AGREEMENT AND CONSENT




     THIS THIRD AMENDMENT TO CREDIT AGREEMENT AND CONSENT (this “Amendment”), dated as of
December 9, 2009 is by and among INVACARE CORPORATION, an Ohio corporation (the
“Company”), certain Subsidiaries of the Company party hereto as foreign borrowers (each a
“Foreign Borrower” and together with the Company, the “Borrowers”), certain
Subsidiaries of the Company party hereto as guarantors (collectively, the “Guarantors” and
together with the Borrowers, the “Loan Parties”), the Lenders party hereto, PNC BANK,
NATIONAL ASSOCIATION (formerly, National City Bank), as Multicurrency Administrative Agent,
Multicurrency Collateral Agent, Swing Line Lender and an L/C Issuer, PNC BANK CANADA BRANCH
(formerly National City Bank, Canada Branch), as Canadian Administrative Agent and Canadian
Collateral Agent, BANK OF AMERICA, N.A., as Australian L/C Issuer and Multicurrency L/C Issuer and
BANC OF AMERICA SECURITIES ASIA LIMITED, as Australian Administrative Agent and Australian
Collateral Agent.



W I T N E S S E T H




     WHEREAS, the Loan Parties, the Lenders, the Administrative Agents and the Collateral Agents
are parties to that certain Credit Agreement dated as of February 12, 2007 (as previously amended
or modified and as further amended, modified, extended, restated, replaced, or supplemented from
time to time, the “Credit Agreement”);



     WHEREAS, the Loan Parties plan to reorganize their corporate structure in accordance with the
steps set forth on Schedule A attached hereto (the “Restructuring”);



     WHEREAS, the Loan Parties have requested that the Required Lenders and the Australian L/C
Issuer (as hereinafter defined) (a) consent to the Restructuring and (b) amend certain provisions
of the Credit Agreement; and



     WHEREAS, the Required Lenders and the Australian L/C Issuer are willing to (a) consent to the
Restructuring and (b) agree to such amendments to the Credit Agreement, in each case subject to the
terms and conditions set forth herein.



     NOW, THEREFORE, in consideration of the agreements hereinafter set forth, and for other good
and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties
hereto agree as follows:



ARTICLE I

CONSENT




     1.1 Consent. Notwithstanding the provisions of the Credit Agreement to the contrary,
the Required Lenders hereby consent to the Restructuring; provided that (i) the
Restructuring is consummated, in all material respects, in accordance with Schedule A
attached



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hereto and (ii) the Loan Parties shall comply with Section 6.11 of the Credit Agreement in
connection with the Restructuring.




     1.2 Effectiveness of Consent. This consent shall be effective only to the extent
specifically set forth herein and shall not (a) be construed as a consent or waiver of any breach
or default nor as a waiver of any breach or default of which the Lenders have not been informed by
any Loan Party, (b) affect the right of the Lenders to demand compliance by the Loan Parties with
all terms and conditions of the Credit Agreement, except as specifically consented to, modified or
waived by this consent, (c) be deemed a waiver of any transaction or future action on the part of
any Loan Party requiring the Lenders’ or the Required Lenders’ consent or approval under the Credit
Agreement, or (d) except as consented to and waived hereby, be deemed or construed to be a waiver
or release of, or a limitation upon, the Administrative Agent’s or the Lenders’ exercise of any
rights or remedies under the Credit Agreement or any other Credit Document, whether arising as a
consequence of any Event of Default which may now exist or otherwise, all such rights and remedies
hereby being expressly reserved.



ARTICLE II

AMENDMENTS TO CREDIT AGREEMENT




     2.1 New Definitions. The following definitions are hereby added to Section 1.1 of the
Credit Agreement in the appropriate alphabetical order:




     “Australian L/C Advance” means, with respect to each Australian Revolving
Lender, such Australian Lender’s funding of its participation in any Australian L/C
Borrowing in accordance with its Applicable Revolving Credit Percentage. All Australian L/C
Advances shall be denominated in Australian Dollars or U.S. Dollars.




     “Australian L/C Borrowing” means an extension of credit resulting from a
drawing under any Australian Letter of Credit which has not been reimbursed on the date when
made or refinanced as an Australian Revolving Borrowing. All Australian L/C Borrowings
shall be denominated in Australian Dollars or U.S. Dollars.




     “Australian L/C Credit Extension” means, with respect to any Australian Letter
of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of
the amount thereof.




     “Australian L/C Issuer” means Bank of America, N.A.




     “Australian L/C Obligations” means, as at any date of determination, the
aggregate amount available to be drawn under all outstanding Australian Letters of Credit
plus the aggregate of all Australian Unreimbursed Amounts, including all Australian
L/C Borrowings. For purposes of computing the amount available to be drawn under any
Australian Letter of Credit, the amount of such Australian Letter of Credit shall be
determined in accordance with Section 1.09. For all purposes of this Agreement, if
on any date of determination an Australian Letter of Credit has expired by



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its terms but any amount may still be drawn thereunder by reason of the operation of
Rule 3.14 of the ISP, such Australian Letter of Credit shall be deemed to be “outstanding”
in the amount so remaining available to be drawn.




     “Australian Letter of Credit” means any letter of credit issued by the
Australian L/C Issuer hereunder. An Australian Letter of Credit may be a commercial letter
of credit or a standby letter of credit. Australian Letters of Credit shall be issued in
Australian Dollars or U.S. Dollars.




     “Australian Letter of Credit Fee” has the meaning specified in Section
2.03(i).




     “Australian Letter of Credit Sublimit” means an amount equal to $5,000,000.
The Australian Letter of Credit Sublimit is part of, and not in addition to, the Australian
Facility.




     “Australian Unreimbursed Amount” has the meaning specified in Section
2.03(c)(i)(C).




     “Note Calculation Date” means any date on which the Company redeems, purchases,
retires or otherwise extinguishes all or a portion of the Senior Notes and/or the
Convertible Notes.




     “Senior Secured Funded Indebtedness” means, as of any date of determination for
the Company and its Subsidiaries, all Consolidated Funded Indebtedness (including, without
limitation, Credit Extensions hereunder) which is (a) secured by collateral and (b) not
Subordinated Debt.




     “Senior Leverage Ratio” means, as of any date of determination, for the Company
and its Subsidiaries on a consolidated basis, the ratio of (a) Senior Secured Funded
Indebtedness as of such date to (b) Consolidated EBITDA for the four (4) consecutive fiscal
quarters ending on such date.



     2.2 Amendment to Existing Definitions. The following definitions set forth in Section
1.01 of the Credit Agreement are hereby amended and restated in their entirety to read as follows:




     “L/C Advance” means a Multicurrency L/C Advance, an Australian L/C Advance or a
Canadian L/C Advance as the context requires.




     “L/C Borrowing” means a Multicurrency L/C Borrowing, an Australian L/C
Borrowing and/or a Canadian L/C Borrowing as the context requires.




     “L/C Credit Extension” means, any Multicurrency L/C Credit Extension,
Australian L/C Credit Extension and/or Canadian L/C Credit Extension as the context may
require.



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     “L/C Issuer” means the Multicurrency L/C Issuer, the Australian L/C Issuer
and/or the Canadian L/C Issuer as the context may require.




     “L/C Obligations” means, as at any date of determination, the Multicurrency L/C
Obligations, the Australian L/C Obligations and/or the Canadian L/C Obligations, as
appropriate.




     “Letter of Credit” means Multicurrency Letters of Credit, Australian Letters of
Credit and/or Canadian Letters of Credit as the context may require.




     “Letter of Credit Fee” means the Multicurrency Letter of Credit Fee, the
Australian Letter of Credit Fee and/or the Canadian Letter of Credit Fee as the context
requires.




     “Letter of Credit Sublimit” means the Multicurrency Letter of Credit Sublimit,
the Australian Letter of Credit Sublimit and the Canadian Letter of Credit Sublimit, as the
context may require.




     “Multicurrency L/C Issuer” means (a) the Principal L/C Issuer, (b) Bank of
America, N.A. and (c) any other Revolving Lender designated by the Company that agrees to
issue one or more Multicurrency Letters of Credit and that is approved by the Multicurrency
Administrative Agent, in each case in its capacity as issuer of one or more Multicurrency
Letters of Credit hereunder, or any successor issuer of Multicurrency Letters of Credit
hereunder.




     “Spot Rate” for a currency means the rate reasonably determined by the
Multicurrency Administrative Agent to be the rate quoted by the Person acting in such
capacity as the spot rate for the purchase by such Person of such currency with another
currency through its principal foreign exchange trading office at approximately 11:00 a.m.
on the date two Business Days prior to the date as of which the foreign exchange computation
is made; provided that (a) the Multicurrency Administrative Agent may obtain such
spot rate from another financial institution designated by the Multicurrency Administrative
Agent if the Person acting in such capacity does not have as of the date of determination a
spot buying rate for any such currency; (b) any L/C Issuer may use such spot rate quoted on
the date as of which the foreign exchange computation is made in the case of any Letter of
Credit denominated in a Foreign Syndicated Currency that is issued by such L/C Issuer and
(c) with respect to Australian Letters of Credit denominated in U.S. Dollars, the
Australian L/C Issuer may elect to determine the Spot Rate (instead of having the
Multicurrency Administrative Agent determine such Spot Rate) which shall be the rate
reasonably determined by the Australian L/C Issuer to be the rate quoted by the Person
acting in such capacity as the spot rate for the purchase by such Person of such currency
with another currency through its principal foreign exchange trading office at approximately
11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange
computation is made.



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     2.3 Amendment to Section 2.02(a)(ii). The last sentence in Section 2.02(a)(ii) of the
Credit Agreement is hereby amended and restated in its entirety to read as follows:




Each Borrowing of or continuation of Eurocurrency Rate Loans that are Australian Revolving
Loans shall be in a principal amount of A$1,000,000 and in integral multiples of A$1,000,000
in excess thereof.



     2.4 Amendment to Section 2.02(a)(iii). Section 2.02(a)(iii) of the Credit Agreement
is hereby amended and restated in its entirety to read as follows:




     (iii) With respect to Canadian Revolving Loans, each Borrowing, each conversion of
Canadian Revolving Loans from one Type to the other, each conversion of Base Rate Loans to
CDOR Rate Loans, and each continuation of Eurocurrency Rate Loans or CDOR Rate Loans shall
be made upon the applicable Borrower’s irrevocable notice to the Multicurrency
Administrative Agent, which may be given by telephone. Each such notice must be received by
the Multicurrency Administrative Agent not later than (A)11:00 a.m. three Business Days
prior to the requested date of any Borrowing of, conversion to or continuation of,
Eurocurrency Rate Loans that are Canadian Revolving Loans denominated in U.S. Dollars, or of
any conversion of Eurocurrency Rate Loans that are Canadian Revolving Loans denominated in
U.S. Dollars to Base Rate Loans denominated in U.S. Dollars, (B) 12:00 p.m. three Business
Days prior to the requested date of any Borrowing of, or continuation of, any CDOR Rate Loan
or conversion of any Base Rate Loan to a CDOR Rate Loan, (C) 10:00 a.m. on the requested
date of a Canadian Revolving Borrowing of Base Rate Loans denominated in Canadian Dollars
and (D) 11:00 a.m. one Business Day prior to the requested date of any Canadian Revolving
Borrowing of Base Rate Loans denominated in U.S. Dollars. Each telephonic notice by the
applicable Borrower pursuant to this Section 2.02(a)(iii) must be confirmed promptly
by delivery to the Multicurrency Administrative Agent of a written Committed Loan Notice,
appropriately completed and signed by a Signatory Officer of the applicable Borrower. Each
Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or CDOR Rate Loans
that are Canadian Revolving Loans denominated in Canadian Dollars shall be in a principal
amount of CAN$1,000,000 and in integral multiples of CAN$1,000,000 in excess thereof, and
each Borrowing of, conversion to or continuation of Eurocurrency Rate Loans that are
Canadian Revolving Loans denominated in U.S. Dollars shall be in a principal amount of
US$1,000,000 and in integral multiples of US$1,000,000 in excess thereof. Each Borrowing
of, or conversion to, Base Rate Loans that are Canadian Revolving Loans denominated in
Canadian Dollars shall be in a principal amount of CAN$1,000,000 or a whole multiple of
CAN$500,000 in excess thereof, and each Borrowing of, conversion to or continuation of Base
Rate Loans that are Canadian Revolving Loans denominated in U.S. Dollars shall be in a
principal amount of US$1,000,000 or a whole multiple of US$500,000 in excess thereof. Each
Borrowing of, conversion to or continuation of CDOR Rate Loans shall be in a principal face
amount of CAN$1,000,000 and in integral multiples of CAN$1,000,000 in excess thereof. If
the date upon which a Base Rate Loan that is a Canadian Revolving Loan is to be converted to
a CDOR Rate Loan is not a Business Day, then such conversion shall be made on the next
succeeding Business Day and



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during the period from such last day of a CDOR Period and during the period to such
succeeding Business Day such Canadian Revolving Loan shall bear interest as if it were a
Base Rate Loan.



     2.5 Amendment to Section 2.03. Section 2.03(a) of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:




2.03  Letters of Credit. 




(a) The Letter of Credit Commitment.




     (i) Subject to the terms and conditions set forth herein, (A) each applicable
Multicurrency L/C Issuer agrees, in reliance upon the agreements of the
Multicurrency Revolving Lenders set forth in this Section 2.03, (1) from
time to time on any Business Day during the period from the Closing Date until the
Letter of Credit Expiration Date, to issue Multicurrency Letters of Credit
denominated in U.S. Dollars or in one or more Syndicated Foreign Currencies for the
account of the Company or its Subsidiaries, and to amend or extend Multicurrency
Letters of Credit previously issued by it, in accordance with subsection (b) below,
and (2) to honor drawings under the Multicurrency Letters of Credit; and (B) the
Multicurrency Revolving Lenders severally agree to participate in Multicurrency
Letters of Credit issued for the account of the Company or its Subsidiaries and any
drawings thereunder; provided that after giving effect to any Multicurrency
L/C Credit Extension with respect to any Multicurrency Letter of Credit, (x) the
Total Revolving Credit Outstandings shall not exceed the Multicurrency Facility, (y)
the aggregate Outstanding Amount of the Revolving Loans of any Multicurrency
Revolving Lender, plus such Multicurrency Revolving Lender’s Applicable
Revolving Credit Percentage of the Outstanding Amount of all Multicurrency L/C
Obligations, plus such Lender’s Applicable Revolving Credit Percentage of
the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s
Revolving Commitment, and (z) the Outstanding Amount of the Multicurrency L/C
Obligations shall not exceed the Multicurrency Letter of Credit Sublimit. Each
request by the Company for the issuance or amendment of a Multicurrency Letter of
Credit shall be deemed to be a representation by the Company that the Multicurrency
L/C Credit Extension so requested complies with the conditions set forth in the
proviso to the preceding sentence. Within the foregoing limits, and subject to the
terms and conditions hereof, the Company’s ability to obtain Multicurrency Letters
of Credit shall be fully revolving, and accordingly the Company may, during the
foregoing period, obtain Multicurrency Letters of Credit to replace Multicurrency
Letters of Credit that have expired or that have been drawn upon and reimbursed.
All Existing Letters of Credit shall be deemed to have been issued pursuant hereto,
and from and after the Closing Date shall be subject to and governed by the terms
and conditions hereof.



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     (ii) Subject to the terms and conditions set forth herein, (A) each applicable
Canadian L/C Issuer agrees, in reliance upon the agreements of the Canadian
Revolving Lenders set forth in this Section 2.03, (1) from time to time on
any Business Day during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Canadian Letters of Credit denominated in Canadian Dollars
for the account of the Canadian Borrower or any Subsidiary organized in Canada, and
to amend or extend Canadian Letters of Credit previously issued by it, in accordance
with subsection (b) below, and (2) to honor drawings under the Canadian Letters of
Credit; and (B) the Canadian Revolving Lenders severally agree to participate in
Canadian Letters of Credit issued for the account of the Company or its Subsidiaries
and any drawings thereunder; provided that after giving effect to any
Canadian L/C Credit Extension with respect to any Canadian Letter of Credit, (x) the
Total Revolving Credit Outstandings shall not exceed the Revolving Facility, (y) the
aggregate Outstanding Amount of the Canadian Revolving Loans of any Canadian
Revolving Lender, plus such Canadian Revolving Lender’s Applicable
Percentage of the Outstanding Amount of all Canadian L/C Obligations shall not
exceed such Lender’s Canadian Revolving Commitment, and (z) the Outstanding Amount
of the Canadian L/C Obligations shall not exceed the Canadian Letter of Credit
Sublimit. Each request by the Canadian Borrower for the issuance or amendment of a
Canadian Letter of Credit shall be deemed to be a representation by the Canadian
Borrower that the Canadian L/C Credit Extension so requested complies with the
conditions set forth in the proviso to the preceding sentence. Within the foregoing
limits, and subject to the terms and conditions hereof, the Canadian Borrower’s
ability to obtain Canadian Letters of Credit shall be fully revolving, and
accordingly the Canadian Borrower may, during the foregoing period, obtain Canadian
Letters of Credit to replace Canadian Letters of Credit that have expired or that
have been drawn upon and reimbursed.




     (iii) Subject to the terms and conditions set forth herein, (A) each applicable
Australian L/C Issuer agrees, in reliance upon the agreements of the Australian
Revolving Lenders set forth in this Section 2.03, (1) from time to time on
any Business Day during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Australian Letters of Credit denominated in Australian
Dollars or U.S. Dollars for the account of the Australian Borrower or any Subsidiary
organized in Australia, and to amend or extend Australian Letters of Credit
previously issued by it, in accordance with subsection (b) below, and (2) to honor
drawings under the Australian Letters of Credit; and (B) the Australian Revolving
Lenders severally agree to participate in Australian Letters of Credit issued for
the account of the Australian Borrower or its Subsidiaries and any drawings
thereunder; provided that after giving effect to any Australian L/C Credit
Extension with respect to any Australian Letter of Credit, (x) the Total Revolving
Credit Outstandings shall not exceed the Revolving Facility, (y) the aggregate
Outstanding Amount of the Australian Revolving Loans of any Australian Revolving
Lender, plus such Australian Revolving Lender’s Applicable Percentage of the
Outstanding Amount of all Australian L/C Obligations shall not



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exceed such Lender’s Australian Revolving Commitment, and (z) the Outstanding
Amount of the Australian L/C Obligations shall not exceed the Australian Letter of
Credit Sublimit. Each request by the Australian Borrower for the issuance or
amendment of an Australian Letter of Credit shall be deemed to be a representation
by the Australian Borrower that the Australian L/C Credit Extension so requested
complies with the conditions set forth in the proviso to the preceding sentence.
Within the foregoing limits, and subject to the terms and conditions hereof, the
Australian Borrower’s ability to obtain Australian Letters of Credit shall be fully
revolving, and accordingly the Australian Borrower may, during the foregoing period,
obtain Australian Letters of Credit to replace Australian Letters of Credit that
have expired or that have been drawn upon and reimbursed.




(iv) No L/C Issuer shall issue any Letter of Credit if:




     (A) subject to Section 2.03(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve months after the
date of issuance or last extension, unless the Required Multicurrency
Revolving Lenders, the Required Canadian Revolving Lenders or the Required
Australian Revolving Lenders, as applicable, have approved such expiry date;
or




     (B) the expiry date of such requested Letter of Credit would occur
after the Letter of Credit Expiration Date, unless all the Multicurrency
Revolving Lenders, the Required Australian Revolving Lenders or the Canadian
Revolving Lenders, as applicable, have approved such expiry date.




     (v) No L/C Issuer shall be under any obligation to issue any Letter of Credit
if:




     (A) any order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer
from issuing such Letter of Credit, or any Law applicable to such L/C Issuer
or any request or directive (whether or not having the force of law) from
any Governmental Authority with jurisdiction over such L/C Issuer shall
prohibit, or request that such L/C Issuer refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or shall
impose upon such L/C Issuer with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which such L/C Issuer is
not otherwise compensated hereunder) not in effect on the Closing Date, or
shall impose upon such L/C Issuer any unreimbursed loss, cost or expense
which was not applicable on the Closing Date and which such L/C Issuer in
good faith deems material to it;



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     (B) except as otherwise agreed by the Multicurrency Administrative
Agent, the Australian Administrative Agent or the Canadian Administrative
Agent, as applicable, and such L/C Issuer, such Letter of Credit is in an
initial stated amount less than $35,000, in the case of a commercial Letter
of Credit, or $500,000, in the case of a standby Letter of Credit;




     (C) except as otherwise agreed by (x) with respect to Multicurrency
Letters of Credit, the Multicurrency Administrative Agent and such L/C
Issuer, such Multicurrency Letter of Credit is to be denominated in a
currency other than U.S. Dollars or a Foreign Syndicated Currency, (y) with
respect to Canadian Letters of Credit, the Canadian Administrative Agent and
such Canadian L/C Issuer, such Canadian Letter of Credit is to be
denominated in a currency other than Canadian Dollars and (z) with respect
to Australian Letters of Credit, the Australian Administrative Agent and
such Australian L/C Issuer, such Australian Letter of Credit is to be
denominated in a currency other than Australian Dollars or U.S. Dollars;




     (D) such L/C Issuer does not as of the issuance date of such requested
Letter of Credit issue Letters of Credit in the requested currency; or




     (E) a default of any Multicurrency Revolving Lender’s, Australian
Revolving Lender’s or Canadian Revolving Lender’s obligations, as
applicable, to fund under Section 2.03(c) exists or any
Multicurrency Revolving Lender, Australian Revolving Lender or Canadian
Revolving Lender, as applicable, is at such time a Defaulting Lender
hereunder, unless such L/C Issuer has entered into satisfactory arrangements
with the applicable Borrower or such Multicurrency Revolving Lender,
Australian Revolving Lender or Canadian Revolving Lender, as applicable, to
eliminate such L/C Issuer’s risk with respect to such Revolving Lender.




     (vi) No L/C Issuer shall amend a Letter of Credit if such L/C Issuer would not
be permitted at such time to issue such Letter of Credit in its amended form under
the terms hereof.




     (vii) Each L/C Issuer shall be under no obligation to amend any Letter of
Credit if (A) such L/C Issuer would have no obligation at such time to issue such
Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary
of such Letter of Credit does not accept the proposed amendment to such Letter of
Credit.




     (viii) Each Multicurrency L/C Issuer shall act on behalf of the Multicurrency
Revolving Lenders with respect to any Letters of Credit issued by it



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and the documents associated therewith. Each Canadian L/C Issuer shall act on
behalf of the Canadian Revolving Lenders with respect to any Canadian Letters of
Credit issued by it and the documents associated therewith. Each Australian L/C
Issuer shall act on behalf of the Australian Revolving Lenders with respect to any
Australian Letters of Credit issued by it and the documents associated therewith.
Each L/C Issuer shall have all of the benefits and immunities (A) provided to the
Multicurrency Administrative Agent, Australian Administrative Agent or Canadian
Administrative Agent, as applicable, in Article IX with respect to any acts
taken or omissions suffered by such L/C Issuer in connection with Letters of Credit
issued by it or proposed to be issued by it and Issuer Documents pertaining to such
Letters of Credit as fully as if the term “Multicurrency Administrative
Agent”, “Australian Administrative Agent” or “Canadian
Administrative Agent” as used in Article IX included such L/C Issuer
with respect to such acts or omissions, and (B) as additionally provided herein with
respect to an L/C Issuer.




     (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension
Letters of Credit.




     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon
the request of the applicable Borrower delivered to the applicable L/C Issuer (with
a copy to the Multicurrency Administrative Agent, Australian Administrative Agent or
Canadian Administrative Agent, as applicable) in the form of a Letter of Credit
Application, appropriately completed and signed by a Signatory Officer of the
applicable Borrower. Such Letter of Credit Application must be received by the
applicable L/C Issuer and the Multicurrency Administrative Agent, Australian
Administrative Agent or Canadian Administrative Agent, as applicable, not later than
11:00 a.m. at least two Business Days (or such later date and time as the
Multicurrency Administrative Agent, the Australian Administrative Agent or the
Canadian Administrative Agent, as applicable, and the applicable L/C Issuer may
agree in a particular instance in their sole discretion) prior to the proposed
issuance date or date of amendment, as the case may be. In the case of a request
for an initial issuance of a Letter of Credit, such Letter of Credit Application
shall specify in form and detail satisfactory to the applicable L/C Issuer: (A) the
proposed issuance date of the requested Letter of Credit (which shall be a Business
Day); (B) the amount and currency thereof; (C) the expiry date thereof; (D) the name
and address of the beneficiary thereof; (E) the documents to be presented by such
beneficiary in case of any drawing thereunder; (F) the full text of any certificate
to be presented by such beneficiary in case of any drawing thereunder; and (G) such
other matters as the applicable L/C Issuer may require. In the case of a request
for an amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the applicable L/C
Issuer (1) the Letter of Credit to be amended; (2) the proposed date of amendment
thereof (which shall be a Business Day); (3) the nature of the proposed amendment;
and (4) such other matters as the applicable L/C Issuer may require. Additionally,
the applicable Borrower shall furnish to the applicable L/C Issuer and the




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Multicurrency Administrative Agent, Australian Administrative Agent or
Canadian Administrative Agent, as applicable, such other documents and information
pertaining to such requested Letter of Credit issuance or amendment, including any
Issuer Documents, as the applicable L/C Issuer or the applicable Administrative
Agent may require.




     (ii) Promptly after receipt of any Letter of Credit Application, the applicable
L/C Issuer will confirm with the applicable Administrative Agent (by telephone or in
writing) that the applicable Administrative Agent has received a copy of such Letter
of Credit Application from the applicable Borrower and, if not, such L/C Issuer will
provide the applicable Administrative Agent with a copy thereof. Unless the
applicable L/C Issuer has received written notice from any Multicurrency Revolving
Lender, Australian Revolving Lender or Canadian Revolving Lender, as applicable, the
applicable Administrative Agent or any Loan Party, at least one Business Day prior
to the requested date of issuance or amendment of the applicable Letter of Credit,
that one or more applicable conditions contained in Article IV shall not
then be satisfied, then, subject to the terms and conditions hereof, such L/C Issuer
shall, on the requested date, issue a Letter of Credit for the account of the
applicable Borrower (or the applicable Subsidiary) or enter into the applicable
amendment, as the case may be, in each case in accordance with such L/C Issuer’s
usual and customary business practices. Immediately upon the issuance of each
Letter of Credit, each Multicurrency Revolving Lender, Australian Revolving Lender
or Canadian Revolving Lender, as applicable, shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the applicable L/C Issuer a
risk participation in such Letter of Credit in an amount equal to (A) with respect
to a Multicurrency Letter of Credit, the product of such Multicurrency Revolving
Lender’s Applicable Revolving Credit Percentage times the amount of such
Letter of Credit, (B) with respect to a Canadian Letter of Credit, the product of
such Canadian Revolving Lender’s Applicable Revolving Credit Percentage
times the amount of such Letter of Credit and (C) with respect to an
Australian Letter of Credit, the product of such Australian Revolving Lender’s
Applicable Revolving Credit Percentage times the amount of such Letter of
Credit.




     (iii) If the applicable Borrower so requests in any applicable Letter of Credit
Application, the applicable L/C Issuer may, in its sole and absolute discretion,
agree to issue a Letter of Credit that has automatic extension provisions (each, an
"Auto-Extension Letter of Credit”); provided that any such
Auto-Extension Letter of Credit must permit such L/C Issuer to prevent any such
extension at least once in each twelve-month period (commencing with the date of
issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof
not later than a day (the “Non-Extension Notice Date”) in each such
twelve-month period to be agreed upon at the time such Letter of Credit is issued.
Unless otherwise directed by the applicable L/C Issuer, the applicable Borrower
shall not be required to make a specific request to such L/C Issuer for any such
extension. Once an Auto-Extension Letter of Credit has been issued, the



11









 






applicable Revolving Lenders shall be deemed to have authorized (but may not
require) the applicable L/C Issuer to permit the extension of such Letter of Credit
at any time to an expiry date not later than the Letter of Credit Expiration Date;
provided, however, that such L/C Issuer shall not permit any such
extension on the Non-Extension Notice Date if (A) such L/C Issuer has determined
that it would not be permitted, or would have no obligation at such time to issue
such Letter of Credit in its revised form (as extended) under the terms hereof (by
reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or
otherwise), or (B) it has received notice (which may be by telephone or in writing)
on or before the day that is five Business Days before the Non-Extension Notice Date
(1) from the applicable Administrative Agent that the Required Multicurrency
Revolving Lenders, the Required Australian Revolving Lenders or the Required
Canadian Revolving Lenders, as applicable, have elected not to permit such extension
and directing such L/C Issuer not to permit such extension or (2) from the
Multicurrency Administrative Agent, the Australian Administrative Agent, the
Canadian Administrative Agent, any Multicurrency Revolving Lender, any Australian
Revolving Lender, any Canadian Revolving Lender or the applicable Borrower that one
or more of the applicable conditions specified in Section 4.02.




     (iv) If the applicable Borrower so requests in any applicable Letter of Credit
Application, the directing such L/C Issuer not to permit such extension L/C Issuer
may, in its sole and absolute discretion, agree to issue a Letter of Credit that
permits the automatic reinstatement of all or a portion of the stated amount thereof
after any drawing thereunder (each, an “Auto-Reinstatement Letter of
Credit”). Unless otherwise directed by the directing such L/C Issuer not to
permit such extension L/C Issuer, the applicable Borrower shall not be required to
make a specific request to such L/C Issuer to permit such reinstatement. Once an
Auto-Reinstatement Letter of Credit has been issued, except as provided in the
following sentence, the Multicurrency Revolving Lenders, the Australian Revolving
Lenders or the Canadian Revolving Lenders, as applicable, shall be deemed to have
authorized (but may not require) such L/C Issuer to reinstate all or a portion of
the stated amount thereof in accordance with the provisions of such Letter of
Credit. Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit
permits the applicable L/C Issuer to decline to reinstate all or any portion of the
stated amount thereof after a drawing thereunder by giving notice of such
non-reinstatement within a specified number of days after such drawing (the
"Non-Reinstatement Deadline”), such L/C Issuer shall not permit such
reinstatement if it has received a notice (which may be by telephone or in writing)
on or before the day that is five Business Days before the Non-Reinstatement
Deadline (A) from the applicable Administrative Agent that the Required
Multicurrency Revolving Lenders, the Required Australian Revolving Lenders or the
Required Canadian Revolving Lenders, as applicable, have elected not to permit such
reinstatement or (B) from the Multicurrency Administrative Agent, the Australian
Administrative Agent, the Canadian Administrative Agent, any Revolving Lender or the
applicable Borrower that one or more of the applicable conditions specified in
Section 4.02 is not then satisfied (treating such



12









 






reinstatement as an L/C Credit Extension for purposes of this clause) and, in
each case, directing the L/C Issuer not to permit such reinstatement.




     (v) Promptly after its delivery of any Letter of Credit or any amendment to a
Letter of Credit to an advising bank with respect thereto or to the beneficiary
thereof, the applicable L/C Issuer will also deliver to the applicable Borrower, the
Multicurrency Administrative Agent, the Australian Administrative Agent or the
Canadian Administrative Agent, as applicable, and the Principal L/C Issuer a true
and complete copy of such Letter of Credit or amendment.




     (c) Drawings and Reimbursements; Funding of Participations.




     (i) (A) Upon receipt from the beneficiary of any Multicurrency Letter of
Credit of any notice of a drawing under such Letter of Credit, the applicable L/C
Issuer shall notify the Company and the Multicurrency Administrative Agent thereof.
In the case of a Letter of Credit denominated in a Foreign Syndicated Currency, the
Company shall reimburse the applicable L/C Issuer in such Foreign Syndicated
Currency, unless in the absence of any such requirement for reimbursement in U.S.
Dollars, the Company shall have notified such L/C Issuer promptly following receipt
of the notice of drawing that the Company will reimburse such L/C Issuer in U.S.
Dollars. In the case of any such reimbursement in U.S. Dollars of a drawing under a
Letter of Credit denominated in a Foreign Syndicated Currency, the applicable L/C
Issuer shall notify the Company of the Dollar Equivalent of the amount of the
drawing promptly following the determination thereof. Not later than 11:00 a.m. on
the date of any payment by an L/C Issuer under a Letter of Credit to be reimbursed
in U.S. Dollars, or the Applicable Time on the date of any payment by an L/C Issuer
under a Letter of Credit to be reimbursed in a Foreign Syndicated Currency (each
such date, an “Multicurrency Honor Date”), the Company shall reimburse such
L/C Issuer through the Multicurrency Administrative Agent in an amount equal to the
amount of such drawing and in the applicable currency. If the Company fails to so
reimburse such L/C Issuer by such time, the Multicurrency Administrative Agent shall
promptly notify each Multicurrency Revolving Lender of the Multicurrency Honor Date,
the amount of the unreimbursed drawing (expressed in U.S. Dollars in the amount of
the Dollar Equivalent thereof in the case of a Letter of Credit denominated in a
Foreign Syndicated Currency) (the “Multicurrency Unreimbursed Amount”), and
the amount of such Multicurrency Revolving Lender’s Applicable Revolving Credit
Percentage thereof. In such event, the Company shall be deemed to have requested a
Revolving Borrowing of Base Rate Loans to be disbursed on the Multicurrency Honor
Date in an amount equal to the Multicurrency Unreimbursed Amount, without regard to
the minimum and multiples specified in Section 2.02 for the principal amount
of Base Rate Loans, but subject to the amount of the unutilized portion of the
Revolving Commitments and the conditions set forth in Section 4.02 (other
than the delivery of a Committed Loan Notice), including the condition that no
Default shall exist or result from such Credit Extension. Any notice given by an
L/C Issuer or the



13









 






Multicurrency Administrative Agent pursuant to this Section
2.03(c)(i)(A) may be given by telephone if immediately confirmed in writing;
provided that the lack of such an immediate confirmation shall not affect
the conclusiveness or binding effect of such notice.




     (B) Upon receipt from the beneficiary of any Canadian Letter of Credit of any
notice of a drawing under such Letter of Credit, the applicable L/C Issuer shall
notify the Canadian Borrower and the Canadian Administrative Agent thereof. The
Canadian Borrower shall reimburse the Canadian L/C Issuer in Canadian Dollars,
unless in the absence of any such requirement for reimbursement in U.S. Dollars, the
Canadian Borrower shall have notified the Canadian L/C Issuer promptly following
receipt of the notice of drawing that the Canadian Borrower will reimburse the
Canadian L/C Issuer in U.S. Dollars. In the case of any such reimbursement in U.S.
Dollars of a drawing under a Letter of Credit denominated in Canadian Dollars, the
Canadian L/C Issuer shall notify the Canadian Borrower of the Dollar Equivalent of
the amount of the drawing promptly following the determination thereof. Not later
than 11:00 a.m. (Toronto time) on the date of any payment by the Canadian L/C Issuer
under a Canadian Letter of Credit to be reimbursed in U.S. Dollars, or the
Applicable Time on the date of any payment by the Canadian L/C Issuer under a
Canadian Letter of Credit to be reimbursed in Canadian Dollars (each such date, an
"Canadian Honor Date”), the Canadian Borrower shall reimburse the Canadian
L/C Issuer through the Canadian Administrative Agent in an amount equal to the
amount of such drawing and in the applicable currency. If the Canadian Borrower
fails to so reimburse the Canadian L/C Issuer by such time, the Canadian
Administrative Agent shall promptly notify each Canadian Revolving Lender of the
Canadian Honor Date, the amount of the unreimbursed drawing (the “Canadian
Unreimbursed Amount”), and the amount of such Canadian Revolving Lender’s
Applicable Revolving Credit Percentage thereof. In such event, the Canadian
Borrower shall be deemed to have requested a Canadian Revolving Borrowing of Base
Rate Loans denominated in Canadian Dollars to be disbursed on the Canadian Honor
Date in an amount equal to the Canadian Unreimbursed Amount, without regard to the
minimum and multiples specified in Section 2.02 for the principal amount of
Base Rate Loans denominated in Canadian Dollars, but subject to the amount of the
unutilized portion of the Revolving Commitments and the conditions set forth in
Section 4.02 (other than the delivery of a Committed Loan Notice), including
the condition that no Default shall exist or result from such Credit Extension. Any
notice given by the Canadian L/C Issuer or the Canadian Administrative Agent
pursuant to this Section 2.03(c)(i)(B) may be given by telephone if
immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding effect of such
notice.




     (C) Upon receipt from the beneficiary of any Australian Letter of Credit of any
notice of a drawing under such Letter of Credit, the applicable L/C Issuer shall
notify the Australian Borrower and the Australian Administrative Agent



14









 






thereof. The Australian Borrower shall reimburse the Australian L/C Issuer in
Australian Dollars or U.S. Dollars, as applicable, unless in the absence of any such
requirement for reimbursement in U.S. Dollars, the Australian Borrower shall have
notified the Australian L/C Issuer promptly following receipt of the notice of
drawing that the Australian Borrower will reimburse the Australian L/C Issuer in
U.S. Dollars. In the case of any such reimbursement in U.S. Dollars of a drawing
under a Letter of Credit denominated in Australian Dollars, the Australian L/C
Issuer shall notify the Australian Borrower of the Dollar Equivalent of the amount
of the drawing promptly following the determination thereof. Not later than 11:00
a.m. (Sydney time) on the date of any payment by the Australian L/C Issuer under an
Australian Letter of Credit to be reimbursed in U.S. Dollars, or the Applicable Time
on the date of any payment by the Australian L/C Issuer under an Australian Letter
of Credit to be reimbursed in Australian Dollars (each such date, an “Australian
Honor Date”), the Australian Borrower shall reimburse the Australian L/C Issuer
through the Australian Administrative Agent in an amount equal to the amount of such
drawing and in the applicable currency. If the Australian Borrower fails to so
reimburse the Australian L/C Issuer by such time, the Australian Administrative
Agent shall promptly notify each Australian Revolving Lender of the Australian Honor
Date, the amount of the unreimbursed drawing (the “Australian Unreimbursed
Amount”), and the amount of such Australian Revolving Lender’s Applicable
Revolving Credit Percentage thereof. In such event, the Australian Borrower shall
be deemed to have requested an Australian Revolving Borrowing of, (y) for Australian
Letters of Credit issued in Australian Dollars, Eurocurrency Rate Loans denominated
in Australian Dollars and (z) for Australian Letters of Credit issued in U.S.
Dollars, Eurocurrency Rate Loans denominated in U.S. Dollars, in each case to be
disbursed on the Australian Honor Date in an amount equal to the Australian
Unreimbursed Amount, without regard to the minimum and multiples specified in
Section 2.02 for the principal amount of Eurocurrency Rate Loans denominated
in Australian Dollars or the principal amount of Eurocurrency Loans denominated in
U.S. Dollars, as applicable, but subject to the amount of the unutilized portion of
the Revolving Commitments and the conditions set forth in Section 4.02
(other than the delivery of a Committed Loan Notice), including the condition that
no Default shall exist or result from such Credit Extension. Any notice given by
the Australian L/C Issuer or the Australian Administrative Agent pursuant to this
Section 2.03(c)(i)(C) may be given by telephone if immediately confirmed in
writing; provided that the lack of such an immediate confirmation shall not
affect the conclusiveness or binding effect of such notice.




     (ii) (A) Each Multicurrency Revolving Lender shall upon any notice pursuant to
Section 2.03(c)(i)(A) make funds available to the Multicurrency
Administrative Agent for the account of the applicable L/C Issuer, in U.S. Dollars,
at the Multicurrency Administrative Agent’s Office for U.S. Dollar-denominated
payments in an amount equal to its Applicable Percentage of the Multicurrency
Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such
notice by the Multicurrency Administrative Agent, whereupon, subject to the



15









 






provisions of Section 2.03(c)(iii)(A), each Multicurrency Revolving
Lender that so makes funds available shall be deemed to have made a Base Rate Loan
to the Company in such amount. The Multicurrency Administrative Agent shall remit
the funds so received to the applicable L/C Issuer in U.S. Dollars.




     (B) Each Canadian Revolving Lender shall upon any notice pursuant to
Section 2.03(c)(i)(B) make funds available to the Canadian Administrative
Agent for the account of the Canadian L/C Issuer, in Canadian Dollars, at the
Canadian Administrative Agent’s Office for Canadian Dollar-denominated payments in
an amount equal to its Applicable Percentage of the Canadian Unreimbursed Amount not
later than 1:00 p.m. (Toronto time) on the Business Day specified in such notice by
the Canadian Administrative Agent, whereupon, subject to the provisions of
Section 2.03(c)(iii)(B), each Canadian Revolving Lender that so makes funds
available shall be deemed to have made a Base Rate Loan to the Canadian Borrower in
such amount. The Canadian Administrative Agent shall remit the funds so received to
the Canadian L/C Issuer in Canadian Dollars.




     (C) Each Australian Revolving Lender shall upon any notice pursuant to
Section 2.03(c)(i)(C) make funds available to the Australian Administrative
Agent for the account of the Australian L/C Issuer, in Australian Dollars or U.S.
Dollars, as applicable, at the Australian Administrative Agent’s Office for
Australian Dollar-denominated payments or U.S. Dollar denominated payments, as
applicable, in an amount equal to its Applicable Percentage of the Australian
Unreimbursed Amount not later than 1:00 p.m. (Sydney time) on the Business Day
specified in such notice by the Australian Administrative Agent, whereupon, subject
to the provisions of Section 2.03(c)(iii)(C), each Australian Revolving
Lender that so makes funds available shall be deemed to have made an Eurocurrency
Rate Loan to the Australian Borrower in such amount. The Australian Administrative
Agent shall remit the funds so received to the Australian L/C Issuer in Australian
Dollars or U.S. Dollars, as applicable.




     (iii) (A) With respect to any Multicurrency Unreimbursed Amount that is not
fully refinanced by a Revolving Borrowing of Base Rate Loans because the conditions
set forth in Section 4.02 cannot be satisfied or for any other reason, the
Company shall be deemed to have incurred from the applicable L/C Issuer a
Multicurrency L/C Borrowing in the amount of the Multicurrency Unreimbursed Amount
that is not so refinanced, which Multicurrency L/C Borrowing shall be due and
payable on demand (together with interest) and shall bear interest at the Default
Rate. In such event, each Multicurrency Revolving Lender’s payment to the
Multicurrency Administrative Agent for the account of the applicable L/C Issuer
pursuant to Section 2.03(c)(ii)(A) shall be deemed payment in respect of its
participation in such Multicurrency L/C Borrowing and shall constitute a
Multicurrency L/C Advance from such Lender in satisfaction of its participation
obligation under this Section 2.03.



16









 






     (B) With respect to any Canadian Unreimbursed Amount that is not fully
refinanced by a Revolving Borrowing of Base Rate Loans because the conditions set
forth in Section 4.02 cannot be satisfied or for any other reason, the
Canadian Borrower shall be deemed to have incurred from the Canadian L/C Issuer a
Canadian L/C Borrowing in the amount of the Canadian Unreimbursed Amount that is not
so refinanced, which Canadian L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate. In such
event, each Canadian Revolving Lender’s payment to the Canadian Administrative Agent
for the account of the Canadian L/C Issuer pursuant to Section
2.03(c)(ii)(B) shall be deemed payment in respect of its participation in such
Canadian L/C Borrowing and shall constitute a Canadian L/C Advance from such Lender
in satisfaction of its participation obligation under this Section 2.03.




     (C) With respect to any Australian Unreimbursed Amount that is not fully
refinanced by a Revolving Borrowing of Eurocurrency Rate Loans because the
conditions set forth in Section 4.02 cannot be satisfied or for any other
reason, the Australian Borrower shall be deemed to have incurred from the Australian
L/C Issuer an Australian L/C Borrowing in the amount of the Australian Unreimbursed
Amount that is not so refinanced, which Australian L/C Borrowing shall be due and
payable on demand (together with interest) and shall bear interest at the Default
Rate. In such event, each Australian Revolving Lender’s payment to the Australian
Administrative Agent for the account of the Australian L/C Issuer pursuant to
Section 2.03(c)(ii)(C) shall be deemed payment in respect of its
participation in such Australian L/C Borrowing and shall constitute an Australian
L/C Advance from such Lender in satisfaction of its participation obligation under
this Section 2.03.




     (iv) Until each Multicurrency Revolving Lender, Australian Revolving Lender or
Canadian Revolving Lender, as applicable, funds its Multicurrency Revolving Loan,
Australian Revolving Loan, Canadian Revolving Loan, Multicurrency L/C Advance,
Australian L/C Advance or Canadian L/C Advance pursuant to this Section
2.03(c) to reimburse the applicable L/C Issuer for any amount drawn under any
Letter of Credit, interest in respect of such Lender’s Applicable Revolving Credit
Percentage of such amount shall be solely for the account of such L/C Issuer.




     (v) Each applicable Revolving Lender’s obligation to make Revolving Loans or
L/C Advances to reimburse L/C Issuers for amounts drawn under Letters of Credit, as
contemplated by this Section 2.03(c), shall be absolute and unconditional
and shall not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender may have against
any L/C Issuer, the Company, any Subsidiary or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each applicable Revolving Lender’s
obligation to make Revolving Loans (but not such Revolving Lender’s obligation to
make



17









 






L/C Advances) pursuant to this Section 2.03(c) is subject to the
conditions set forth in Section 4.02 (other than delivery by the Company of
a Committed Loan Notice ). No such making of an L/C Advance shall relieve or
otherwise impair the obligation of the applicable Borrower to reimburse the
applicable L/C Issuer for the amount of any payment made by such L/C Issuer under
any Letter of Credit, together with interest as provided herein.




     (vi) If any applicable Revolving Lender fails to make available to the
applicable Administrative Agent for the account of the applicable L/C Issuer any
amount required to be paid by such Lender pursuant to the foregoing provisions of
this Section 2.03(c) by the time specified in Section 2.03(c)(ii),
such L/C Issuer shall be entitled to recover from such Lender (acting through the
applicable Administrative Agent), on demand, such amount with interest thereon for
the period from the date such payment is required to the date on which such payment
is immediately available to such L/C Issuer at a rate per annum equal to the
applicable Overnight Rate from time to time in effect, plus any administrative,
processing or similar fees customarily charged by such L/C Issuer in connection with
the foregoing. If such Lender pays such amount (with interest and fees as
aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan
included in the relevant Borrowing or L/C Advance in respect of the relevant L/C
Borrowing, as the case may be. A certificate of the L/C Issuer submitted to any
applicable Revolving Lender (through the applicable Administrative Agent) with
respect to any amounts owing under this clause (vi) shall be conclusive absent
manifest error.




     (d) Repayment of Participations.




     (i) At any time after an L/C Issuer has made a payment under any Letter of
Credit and has received from any Multicurrency Revolving Lender, Australian
Revolving Lender or Canadian Revolving Lender, as applicable, such Lender’s L/C
Advance in respect of such payment in accordance with Section 2.03(c), if
the Multicurrency Administrative Agent, the Australian Administrative Agent or the
Canadian Administrative Agent, as applicable, receives for the account of such L/C
Issuer any payment in respect of the related Multicurrency Unreimbursed Amount,
Australian Unreimbursed Amount or Canadian Unreimbursed Amount or interest thereon
(whether directly from the Company or otherwise, including proceeds of Cash
Collateral applied thereto by the Multicurrency Administrative Agent, Australian
Administrative Agent or Canadian Administrative Agent, as applicable), the
applicable Administrative Agent will distribute to such Lender its Applicable
Revolving Credit Percentage thereof in the same funds as those received by the
applicable Administrative Agent.




     (ii) If any payment received by the applicable Administrative Agent for the
account of an L/C Issuer pursuant to Section 2.03(c)(i) is required to be
returned under any of the circumstances described in Section 11.05
(including pursuant to any settlement entered into by such L/C Issuer in its
discretion), each



18









 






Multicurrency Revolving Lender, Australian Revolving Lender or Canadian
Revolving Lender, as applicable, shall pay to the applicable Administrative Agent
for the account of such L/C Issuer its Applicable Revolving Credit Percentage
thereof on demand of the applicable Administrative Agent, plus interest
thereon from the date of such demand to the date such amount is returned by such
Lender, at a rate per annum equal to the applicable Overnight Rate from time to time
in effect. The obligations of the Multicurrency Revolving Lenders, Australian
Revolving Lenders and the Canadian Revolving Lenders under this clause shall survive
the payment in full of the Obligations and the termination of this Agreement.




     (e) Obligations Absolute. The obligation of the applicable Borrower to
reimburse the L/C Issuers for each drawing under each Letter of Credit and to repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances, including the
following:




     (i) any lack of validity or enforceability of such Letter of Credit, this
Agreement, or any other Loan Document;




     (ii) the existence of any claim, counterclaim, setoff, defense or other right
that the Company or any Subsidiary may have at any time against any beneficiary or
any transferee of such Letter of Credit (or any Person for whom any such beneficiary
or any such transferee may be acting), any L/C Issuer or any other Person, whether
in connection with this Agreement, the transactions contemplated hereby or by such
Letter of Credit or any agreement or instrument relating thereto, or any unrelated
transaction;




     (iii) any draft, demand, certificate or other document presented under such
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect; or any
loss or delay in the transmission or otherwise of any document required in order to
make a drawing under such Letter of Credit; or




     (iv) any payment by the applicable L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit; or any payment made by such L/C Issuer under
such Letter of Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or
other representative of or successor to any beneficiary or any transferee of such
Letter of Credit, including any arising in connection with any proceeding under any
Debtor Relief Law; or




     (v) any adverse change in the relevant exchange rates or in the availability of
the relevant Foreign Syndicated Currency, Australian Dollars or



19









 






Canadian Dollars to the Company or any Subsidiary or in the relevant currency
markets generally; or




     (vi) any other circumstance or happening whatsoever, whether or not similar to
any of the foregoing, including any other circumstance that might otherwise
constitute a defense available to, or a discharge of, the Company or any Subsidiary.




     The applicable Borrower shall promptly examine a copy of each Letter of Credit and each
amendment thereto that is delivered to it and, in the event of any claim of noncompliance
with the applicable Borrower’s instructions or other irregularity, the applicable Borrower
will immediately notify the applicable L/C Issuer. The Company and the applicable Borrower
shall be conclusively deemed to have waived any such claim against such L/C Issuer and its
correspondents unless such notice is given as aforesaid.




     (f) Role of L/C Issuer. Each Lender, the Company, the Australian Borrower and
the Canadian Borrower agree that, in paying any drawing under a Letter of Credit, the
applicable L/C Issuer shall not have any responsibility to obtain any document (other than
any sight draft, certificates and documents expressly required by the Letter of Credit) or
to ascertain or inquire as to the validity or accuracy of any such document or the authority
of the Person executing or delivering any such document. None of the L/C Issuers, the
Multicurrency Administrative Agent, the Australian Administrative Agent, the Canadian
Administrative Agent, any of their respective Related Parties nor any correspondent,
participant or assignee of an L/C Issuer shall be liable to any Lender for (i) any action
taken or omitted in connection herewith at the request or with the approval of the
Multicurrency Revolving Lenders, the Australian Revolving Lenders, the Canadian Revolving
Lenders or the Required Revolving Lenders, as applicable; (ii) any action taken or omitted
in the absence of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related to any
Letter of Credit or Issuer Document. The Company hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter of Credit;
provided, however, that this assumption is not intended to, and shall not,
preclude the applicable Borrower from pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement. None of the L/C
Issuers, the Multicurrency Administrative Agent, the Australian Administrative Agent, the
Canadian Administrative Agent any of their respective Related Parties nor any correspondent,
participant or assignee of an L/C Issuer shall be liable or responsible for any of the
matters described in clauses (i) through (v) of Section 2.03(e); provided,
however, that anything in such clauses to the contrary notwithstanding, the
applicable Borrower may have a claim against an L/C Issuer, and such L/C Issuer may be
liable to the applicable Borrower, to the extent, but only to the extent, of any direct, as
opposed to consequential or exemplary, damages suffered by the applicable Borrower which the
applicable Borrower proves were caused by such L/C Issuer’s willful misconduct or gross
negligence or such L/C Issuer’s willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying
with the terms and conditions of a Letter of Credit. In furtherance and not in



20









 






limitation of the foregoing, each L/C Issuer may accept documents that appear on their
face to be in order, without responsibility for further investigation, unless it receives
from the Company any notice or information to the contrary, and each such L/C Issuer shall
not be responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason.




     (g) Cash Collateral.




     (i) Upon the request of the applicable Administrative Agent, if, as of the
Letter of Credit Expiration Date, any L/C Obligation for any reason remains
outstanding, the applicable Borrower shall, in each case, immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations.




     (ii) In addition, if (A) the Multicurrency Administrative Agent notifies the
Company at any time that the Outstanding Amount of all Multicurrency L/C Obligations
at such time exceeds the Multicurrency Letter of Credit Sublimit then in effect, (B)
the Canadian Administrative Agent notifies the Canadian Borrower at any time that
the Outstanding Amount of all Canadian L/C Obligations at such time exceeds the
Canadian Letter of Credit Sublimit then in effect or (C) the Australian
Administrative Agent notifies the Australian Borrower at any time that the
Outstanding Amount of all Australian L/C Obligations at such time exceeds the
Australian Letter of Credit Sublimit then in effect, then, in each case, within two
Business Days after receipt of such notice, the applicable Borrower shall Cash
Collateralize the applicable L/C Obligations in an amount equal to the amount by
which the Outstanding Amount (x) of the Multicurrency L/C Obligations exceeds the
Multicurrency Letter of Credit Sublimit, (y) of the Canadian L/C Obligations exceeds
the Canadian Letter of Credit Sublimit or (z) of the Australian L/C Obligations
exceeds the Australian Letter of Credit Sublimit, as applicable.




     (iii) The applicable Administrative Agent may, at any time and from time to
time after the initial deposit of Cash Collateral in accordance with the terms of
this Section 2.03(g) or Sections 2.05 or 8.02(c), request
that additional Cash Collateral be provided in order to protect against the results
of exchange rate fluctuations.




     (iv) Sections 2.05 and 8.02(c) set forth certain
additional requirements to deliver Cash Collateral hereunder. For purposes of this
Section 2.03, Section 2.05 and Section 8.02(c), “Cash
Collateralize” means to pledge and deposit with or deliver to the applicable
Administrative Agent, for the benefit of the L/C Issuers and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant to
documentation in form and substance satisfactory to the applicable Administrative
Agent and each applicable L/C Issuer (which documents are hereby consented to by the
Lenders). Derivatives of such term



21









 






have corresponding meanings. The applicable Borrower hereby grants to the
applicable Collateral Agent, for the benefit of the Administrative Agents, L/C
Issuers and the Lenders, a security interest in all such cash, deposit accounts and
all balances therein and all proceeds of the foregoing. Cash Collateral shall be
maintained in blocked, non-interest bearing deposit accounts at the Multicurrency
Collateral Agent, Australian Collateral Agent or Canadian Collateral Agent, as
applicable. If at any time the applicable Collateral Agent determines that any funds
held as Cash Collateral are subject to any right or claim of any Person other than
such Collateral Agent or that the total amount of such funds is less than the
aggregate Outstanding Amount of all L/C Obligations required to be Cash
Collateralized under the terms of this Agreement, the applicable Borrower will,
forthwith upon demand by the applicable Collateral Agent, pay to the applicable
Collateral Agent, as additional funds to be deposited as Cash Collateral, an amount
equal to the excess of (x) such aggregate Outstanding Amount over (y) the total
amount of funds, if any, then held as Cash Collateral that the applicable Collateral
Agent determines to be free and clear of any such right and claim. Upon the drawing
of any Letter of Credit for which funds are on deposit as Cash Collateral, such
funds shall be applied, to the extent permitted under applicable Laws, to reimburse
the applicable L/C Issuer.




     (h) Applicability of ISP and UCP. Unless otherwise expressly agreed by the
applicable L/C Issuer and the applicable Borrower when a Letter of Credit is issued
(including any such agreement applicable to an Existing Letter of Credit), (i) the rules of
the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform
Customs and Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce at the time of issuance shall apply to each commercial
Letter of Credit.




     (i) Letter of Credit Fees. The Company shall pay to the Multicurrency
Administrative Agent for the account of each Multicurrency Revolving Lender in accordance
with its Applicable Revolving Credit Percentage, in U.S. Dollars, a Letter of Credit fee
(the “Multicurrency Letter of Credit Fee”) (i) for each commercial Letter of Credit
equal to 1/8th of 1% per annum times the Dollar Equivalent of the daily amount available to
be drawn under such Letter of Credit and (ii) for each standby Letter of Credit equal to the
Applicable Rate times the Dollar Equivalent of the daily amount available to be drawn under
such Letter of Credit; provided, however, the Multicurrency Letter of Credit
Fee payable with respect to each Letter of Credit shall be in a minimum amount of $500 per
annum. The Canadian Borrower shall pay to the Canadian Administrative Agent for the account
of each Canadian Revolving Lender in accordance with its Applicable Revolving Credit
Percentage, in Canadian Dollars, a Letter of Credit fee (the “Canadian Letter of Credit
Fee”) (i) for each commercial Letter of Credit equal to 1/8th of 1% per annum times the
Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit and
(ii) for each standby Letter of Credit equal to the Applicable Rate times the Dollar
Equivalent of the daily amount available to be drawn under such Letter of Credit;
provided, however, the Canadian Letter of Credit Fee payable with respect to
each Letter of Credit shall be in a minimum amount of $500 per



22









 






annum. The Australian Borrower shall pay to the Australian Administrative Agent for
the account of each Australian Revolving Lender in accordance with its Applicable Revolving
Credit Percentage, in Australian Dollars or U.S. Dollars, as applicable, a Letter of Credit
fee (the “Australian Letter of Credit Fee”) (i) for each commercial Letter of Credit
equal to 1/8th of 1% per annum times the Dollar Equivalent of the daily amount available to
be drawn under such Letter of Credit and (ii) for each standby Letter of Credit equal to the
Applicable Rate times the Dollar Equivalent of the daily amount available to be drawn under
such Letter of Credit; provided, however, the Australian Letter of Credit
Fee payable with respect to each Letter of Credit shall be in a minimum amount of $500 per
annum. For purposes of computing the daily amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance with
Section 1.09. Letter of Credit Fees shall be (i) due and payable on the last
Business Day of each March, June, September and December, commencing with the first such
date to occur after the issuance of such Letter of Credit, on the Letter of Credit
Expiration Date and thereafter on demand and (ii) computed on a quarterly basis in arrears.
If there is any change in the Applicable Rate during any quarter, the daily amount available
to be drawn under each standby Letter of Credit shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such Applicable Rate was
in effect. Notwithstanding anything to the contrary contained herein, upon the request of
the Required Revolving Lenders, while any Event of Default exists, all Letter of Credit Fees
shall accrue at the Default Rate.




     (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer.
The applicable Borrower shall pay directly to the applicable L/C Issuer for its own account,
in U.S. Dollars, Australian Dollars or Canadian Dollars, as applicable, a fronting fee (i)
with respect to each commercial Letter of Credit, at a rate separately agreed between the
Company and the applicable L/C Issuer, computed on the Dollar Equivalent of the amount of
such Letter of Credit, and payable upon the issuance thereof, (ii) with respect to any
amendment of a commercial Letter of Credit increasing the amount of such Letter of Credit,
at a rate separately agreed between the Company and the applicable L/C Issuer, computed on
the Dollar Equivalent of the amount of such increase, and payable upon the effectiveness of
such amendment, and (iii) with respect to each standby Letter of Credit, at a rate
separately agreed between the Company and the applicable L/C Issuer, computed on the Dollar
Equivalent of the daily amount available to be drawn under such Letter of Credit. Such
fronting fee shall be due and payable on the date of issuance of any Letter of Credit and
annually thereafter. For purposes of computing the daily amount available to be drawn under
any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.09. In addition, the applicable Borrower shall pay directly to each
L/C Issuer for its own account, in U.S. Dollars, Australian Dollars or Canadian Dollars, as
applicable, the customary issuance, presentation, amendment and other processing fees, and
other standard costs and charges, of such L/C Issuer relating to letters of credit as from
time to time in effect. Such customary fees and standard costs and charges are due and
payable on demand and are nonrefundable.



23









 






     (k) Conflict with Issuer Documents. In the event of any conflict between the
terms hereof and the terms of any Issuer Document, the terms hereof shall control.




     (l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter
of Credit issued or outstanding hereunder is in support of any obligations of, or is for the
account of, a Subsidiary, the Company, the Australian Borrower or the Canadian Borrower, as
applicable, shall be obligated to reimburse the applicable L/C Issuer hereunder for any and
all drawings under such Letter of Credit to the extent such Subsidiary does not reimburse
the applicable L/C Issuer for such drawings. The Company, the Australian Borrower and the
Canadian Borrower hereby acknowledge that the issuance of Letters of Credit for the account
of Subsidiaries inures to the benefit of the Company, the Australian Borrower and/or the
Canadian Borrower, as applicable, and that the Company’s, the Australian Borrower’s and/or
the Canadian Borrower’s business, as applicable, derives substantial benefits from the
businesses of such Subsidiaries.



     2.6 Amendment to Section 2.06(a). Section 2.06(a) of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:




     (a) Optional. The Company may, upon notice to the applicable Multicurrency
Administrative Agent, terminate the Multicurrency Facility, the Australian Facility, the
Canadian Facility, any Alternative Currency Addendum, the Multicurrency Letter of Credit
Sublimit, the Canadian Letter of Credit Sublimit, the Australian Letter of Credit Sublimit
or the Swing Line Sublimit, or from time to time permanently reduce the Multicurrency
Facility, the Australian Facility, the Canadian Facility, any Alternative Currency Addendum,
any Letter of Credit Sublimit or the Swing Line Sublimit; provided that (i) any such
notice shall be received by the Multicurrency Administrative Agent not later than 11:00 a.m.
five Business Days prior to the date of termination or reduction, (ii) any such partial
reduction shall be in a minimum principal amount of the Foreign Currency Equivalent of
$10,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the Company shall
not terminate or reduce (A) the Revolving Facility if, after giving effect thereto and to
any concurrent prepayments hereunder, the Total Revolving Credit Outstandings plus the
Foreign Currency Reserve (if any) would exceed the Revolving Facility, (B) any Alternative
Currency Addendum if, after giving effect thereto and to any concurrent prepayments
hereunder, the Alternative Currency Loans would exceed the commitment under the Alternative
Currency Addendum, (C) the Letter of Credit Sublimit if, after giving effect thereto, the
Outstanding Amount of L/C Obligations not fully Cash Collateralized hereunder would exceed
the Letter of Credit Sublimit, or (D) the Swing Line Sublimit if, after giving effect
thereto and to any concurrent prepayments hereunder, the Outstanding Amount of Swing Line
Loans would exceed the Letter of Credit Sublimit and (iv) if, after giving effect to any
reduction of the Revolving Facility, the Foreign Currency Sublimit exceeds the amount of the
Revolving Facility, such Sublimit shall be automatically reduced by the amount of such
excess.



24









 





     2.7 Amendment to Section 7.05. Clause (l) of Section 7.05 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:




     (l) Dispositions by the Company and its Subsidiaries not otherwise permitted under this
Section 7.05; provided that (i) at the time of such Disposition, no Default shall
exist or would result from such Disposition, (ii) the aggregate book value of all property
Disposed of in reliance on this clause (l) in any fiscal year shall not exceed 10% of
Consolidated Total Assets as of the last fiscal year end and (iii) at least 80% of the
purchase price for such asset shall be paid to the Company or such Subsidiary in cash.



     2.8 Amendment to Section 7.15. Section 7.15 of the Credit Agreement is hereby amended
by adding new clauses (g) and (h) to the end of such Section (and making the applicable grammatical
changes thereto) to read as follows:




     (g) the prepayment of any intercompany Indebtedness owed to (i) a Domestic Loan Party
by any Subsidiary or (ii) a Foreign Loan Party by any Foreign Subsidiary; provided
that the proceeds of such prepayment are applied by the Company (directly or through another
Loan Party) to repay Loans pursuant to Section 2.05(a) of the Credit Agreement; and




     (h) so long as (i) no Default or Event of Default shall have occurred and be continuing
or would result therefrom and (ii) the Company has (A) certified to the Administrative Agent
that the Company and its Subsidiaries shall be in compliance on a Pro Forma Basis with all
of the covenants set forth in Section 7.11 and (B) demonstrated to the reasonable
satisfaction of the Administrative Agent that the Senior Leverage Ratio, calculated on a Pro
Forma Basis, for the Company and its Subsidiaries is less than 1.00 to 1.00, in each case,
such compliance (other than the determination of Senior Secured Funded Indebtedness and
Consolidated Funded Indebtedness which shall be calculated as of the Note Calculation Date)
to be determined on the basis of the financial information most recently delivered to the
Multicurrency Administrative Agent and the Lenders pursuant to Section 6.01(a) or
(b), the Company may redeem, purchase or otherwise retire all or a portion of the
Senior Notes and/or the Convertible Notes in an aggregate amount not to exceed $75,000,000
during the term of this Agreement.



     2.9 Amendment to Article VII. Article VII of the Credit Agreement is hereby amended
by adding a new Section 7.21 to the end of such Article to read as follows:




     7.21 Restructuring Changes.




     Notwithstanding any provision to the contrary within this Agreement, the Company may
restructure its Subsidiaries (which restructuring may include one or more mergers,
consolidations, dissolutions, investments, loans, Restricted Payments and other
transactions, but excluding any acquisition of a third party) (an “Intercompany
Restructuring”), without seeking an amendment or waiver under this Agreement, in order
to improve corporate management efficiency, reduce expenses and minimize tax obligations;
provided that (a) no Default or Event of Default shall exist before and after giving
effect to such Intercompany Restructuring, (b) any merger, consolidation, dissolution,
investment, loan, Restricted Payment or transaction in connection with such Intercompany
Restructuring that is prohibited by the other Sections of this Agreement





25












 






shall be completed within sixty (60) days following the commencement of such
restructuring (the “Completion Date”), (c) on the Completion Date for such
Intercompany Restructuring, (i) the value of the Collateral securing the Multicurrency
Obligations shall be greater than or equal to the value of the Collateral securing the
Multicurrency Obligations on the date immediately prior to such Intercompany Restructuring,
(ii) the value of the Collateral pledged by the Domestic Loan Parties shall be greater than
or equal to the value of the Collateral pledged by the Domestic Loan Parties on the date
immediately prior to such Intercompany Restructuring and (iii) any cash Collateral held by
the Domestic Loan Parties shall be greater than or equal to the cash Collateral held by the
Domestic Loan Parties on the date immediately prior to such Intercompany Restructuring
(“Existing Cash Collateral”); provided that the aggregate amount of cash
payments made with respect to ordinary course payments made during such period shall be
subtracted from the calculation of Existing Cash Collateral, (d) during any Intercompany
Restructuring, (i) the value of the Collateral securing the Multicurrency Obligations shall
not be less than the value of the Collateral securing the Multicurrency Obligations on the
date immediately prior to such Intercompany Restructuring for more than three (3)
consecutive Business Days, (ii) the value of the Collateral pledged by the Domestic Loan
Parties shall not be less than the value of the Collateral pledged by the Domestic Loan
Parties on the date immediately prior to such Intercompany Restructuring for more than five
(5) consecutive Business Days and (iii) any cash Collateral held by the Domestic Loan
Parties shall not be less than the Existing Cash Collateral for more than three (3)
consecutive Business Days; provided that the aggregate amount of cash payments made
with respect to ordinary course payments made during such period shall be subtracted from
the calculation of Existing Cash Collateral and (e) in connection with such Intercompany
Restructuring, the Loan Parties shall comply with the terms of Section 6.11.



ARTICLE III

FUTURE RESIGNATION OF AUSTRALIAN ADMINISTRATIVE AGENT AND

AUSTRALIAN COLLATERAL AGENT




     3.1 Future Resignation of Australian Administrative Agent. Banc of America Securities
Asia Limited hereby provides notice to the Lenders and the Credit Parties of its intent to resign
as the Australian Administrative Agent and the Australian Collateral Agent. The Required Lenders
hereby appoint Bank of America, N.A. as the Australian Administrative Agent and the Australian
Collateral Agent on the date upon which the Multicurrency Administrative Agent receives Banc of
America Securities Asia Limited’s notice of resignation as the Australian Administrative Agent and
the Australian Collateral Agent (such date, the “Date of Resignation”). Bank of America,
N.A. hereby accepts the appointment as the Australian Administrative Agent and the Australian
Collateral Agent on the Date of Resignation. On the Date of Resignation, (a) Bank of America, N.A.
shall succeed to and become vested with all of the rights, powers, privileges and duties of the
retired Australian Administrative Agent and the retired Australian Collateral Agent and (b) Banc of
America Securities Asia Limited shall be discharged from all of its duties and obligations under
the Loan Documents.



26









 





ARTICLE IV

CONDITIONS TO EFFECTIVENESS




     4.1 Closing Conditions. This Amendment shall become effective upon satisfaction of
the following conditions (in form and substance reasonably acceptable to the Multicurrency
Administrative Agent) (the “Amendment Effective Date”):



     (a) Executed Amendment. The Multicurrency Administrative Agent shall have received a
copy of this Amendment duly executed by each of the Loan Parties, the Required Lenders, the
Australian L/C Issuer and acknowledged by the Multicurrency Administrative Agent.



     (b) Fees and Expenses.




     (i) The Administrative Agent shall have received from the Loan Parties, for the account
of each Lender that executes and delivers a signature page to this Amendment to the
Administrative Agent by 5:00 p.m. (EST) on or before December
10, 2009 (each such Lender, a
“Consenting Lender”, and collectively, the “Consenting Lenders”), an
amendment fee in an amount equal to twenty (20) basis points on (A) the aggregate Revolving
Commitments of such Consenting Lender and (B) the outstanding principal amount of the Term B
Loan held by such Consenting Lender.




     (ii) The Administrative Agent shall have received from the Loan Parties such other fees
and expenses that are payable in connection with the consummation of the transactions
contemplated hereby and Moore & Van Allen PLLC shall have received from the Loan Parties
payment of all outstanding fees and expenses previously incurred and all fees and expenses
incurred in connection with this Amendment.



     (c) Miscellaneous. All other documents and legal matters in connection with the
transactions contemplated by this Amendment shall be reasonably satisfactory in form and substance
to the Administrative Agents and their counsel.



ARTICLE V

MISCELLANEOUS




     5.1 Amended Terms. On and after the Amendment Effective Date, all references to the
Credit Agreement in each of the Loan Documents shall hereafter mean the Credit Agreement as amended
by this Amendment. Except as specifically amended hereby or otherwise agreed, the Credit Agreement
is hereby ratified and confirmed and shall remain in full force and effect according to its terms.



     5.2 Representations and Warranties of Loan Parties. Each of the Loan Parties
represents and warrants as follows:



27









 






     (a) It has taken all necessary action to authorize the execution, delivery and
performance of this Amendment.




     (b) This Amendment has been duly executed and delivered by such Person and constitutes
such Person’s legal, valid and binding obligations, enforceable in accordance with its
terms, except as such enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting
creditors’ rights generally and (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding at law or in equity).




     (c) No consent, approval, authorization or order of, or filing, registration or
qualification with, any court or governmental authority or third party is required in
connection with the execution, delivery or performance by such Person of this Amendment.




     (d) The representations and warranties set forth in Article V of the Credit Agreement
are true and correct as of the date hereof (except for those which expressly relate to an
earlier date).




     (e) After giving effect to this Amendment, no event has occurred and is continuing
which constitutes a Default or an Event of Default.




     (f) The Collateral Documents continue to create a valid security interest in, and Lien
upon, the Collateral, in favor of the applicable Collateral Agent, for the benefit of the
applicable Secured Parties, which security interests and Liens are perfected in accordance
with the terms of the Collateral Documents and prior to all Liens other than Permitted
Liens.




     (g) Except as specifically provided in this Amendment, the Obligations are not reduced
or modified by this Amendment and are not subject to any offsets, defenses or counterclaims.



     5.3 Reaffirmation of Obligations. Each Loan Party hereby ratifies the Credit
Agreement and acknowledges and reaffirms (a) that it is bound by all terms of the Credit Agreement
applicable to it and (b) that it is responsible for the observance and full performance of its
respective Obligations.



     5.4 Loan Document. This Amendment shall constitute a Loan Document under the terms of
the Credit Agreement.



     5.5 Expenses. The Borrowers agree to pay all reasonable costs and expenses of the
Administrative Agents and Collateral Agents in connection with the preparation, execution and
delivery of this Amendment, including without limitation the reasonable fees and expenses of the
Administrative Agents’ and Collateral Agents’ legal counsel.



28









 





     5.6 Further Assurances. The Loan Parties agree to promptly take such action, upon the
request of the Multicurrency Administrative Agent, as is necessary to carry out the intent of this
Amendment.



     5.7 Entirety. This Amendment and the other Loan Documents embody the entire agreement
among the parties hereto and supersede all prior agreements and understandings, oral or written, if
any, relating to the subject matter hereof.



     5.8 Counterparts; Telecopy. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. Delivery of an executed counterpart to this
Amendment by telecopy or other electronic means shall be effective as an original and shall
constitute a representation that an original will be delivered.



     5.9 No Actions, Claims, Etc. As of the date hereof, each of the Loan Parties hereby
acknowledges and confirms that it has no knowledge of any actions, causes of action, claims,
demands, damages and liabilities of whatever kind or nature, in law or in equity, against any
Administrative Agent, Collateral Agent, L/C Issuer or Lender, or any such Person’s respective
officers, employees, representatives, agents, counsel or directors arising from any action by any
such Person, or failure of any such Person to act under this Credit Agreement on or prior to the
date hereof.



     5.10 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.



     5.11 Successors and Assigns. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.



     5.12 General Release. In consideration of the Required Lenders entering into this
Amendment, each Loan Party hereby releases each Administrative Agent, each Collateral Agent, each
L/C Issuer, the Lenders, and each such Person’s respective officers, employees, representatives,
agents, counsel and directors from any and all actions, causes of action, claims, demands, damages
and liabilities of whatever kind or nature, in law or in equity, now known or unknown, suspected or
unsuspected to the extent that any of the foregoing arises from any action or failure to act under
the Credit Agreement on or prior to the date hereof, except, with respect to any such person being
released hereby, any actions, causes of action, claims, demands, damages and liabilities arising
out of such person’s gross negligence, bad faith or willful misconduct.



     5.13 Consent to Jurisdiction; Service of Process; Waiver of Jury Trial. The
jurisdiction, services of process and waiver of jury trial provisions set forth in Sections 11.14
and 11.15 of the Credit Agreement are hereby incorporated by reference, mutatis mutandis.



[Remainder of Page Intentionally Left Blank. Signature Pages Follow]





29












 





INVACARE CORPORATION

THIRD AMENDMENT TO CREDIT AGREEMENT AND CONSENT




     IN WITNESS WHEREOF the parties hereto have caused this Amendment to be duly executed on the
date first above written.



	 	 	 	 	 
	
BORROWERS:	

 INVACARE CORPORATION,

an Ohio corporation

CARROLL HEALTHCARE INC.,

an Ontario corporation

INVACARE AUSTRALIA PTY LTD,

an Australian corporation

INVACARE HOLDINGS C.V.,

a Dutch limited partnership

INVACARE INTERNATIONAL SARL,

a Swiss corporation

INVACARE LIMITED,

a private limited company organized under the laws of

England and Wales

SCANDINAVIAN MOBILITY
INTERNATIONAL APS,

a Danish private limited company

 	 
	 	By:  	/s/ Robert K. Gudbranson
 	 
	 	 	Name:  	Robert K. Gudbranson 	 
	 	 	Title:  	Senior Vice President, Chief Financial Officer & Treasurer 	 
	 








 









 











INVACARE CORPORATION

THIRD AMENDMENT TO CREDIT AGREEMENT AND CONSENT




	 	 	 	 	 
	

DOMESTIC GUARANTORS:	

 ADAPTIVE SWITCH LABORATORIES, INC.,

a Texas corporation

INVACARE FLORIDA CORPORATION,

a Delaware corporation

INVACARE CREDIT CORPORATION,

an Ohio corporation

THE AFTERMARKET GROUP, INC.,

a Delaware corporation

THE HELIXX GROUP, INC.,

an Ohio corporation

CHAMPION MANUFACTURING INC.,

a Delaware corporation

HEALTHTECH PRODUCTS, INC.,

a Missouri corporation

INVACARE CANADIAN HOLDINGS, INC.,

a Delaware corporation

INVACARE INTERNATIONAL CORPORATION,

an Ohio corporation

KUSCHALL, INC.,

a Delaware corporation

ALTIMATE MEDICAL, INC.,

a Minnesota corporation

INVACARE SUPPLY GROUP, INC.,

a Massachusetts corporation

INVACARE HOLDINGS, LLC,

an Ohio limited liability company

FREEDOM DESIGNS, INC.,

a California corporation

GARDEN CITY MEDICAL INC.,

a Delaware corporation

MEDBLOC, INC.,

a Delaware corporation

INVACARE FLORIDA HOLDINGS, LLC,

a Delaware limited liability company

 	 
	 	By:  	/s/ Robert K. Gudbranson
 	 
	 	 	Name:  	Robert K. Gudbranson 	 
	 	 	Title:  	Senior Vice President, Chief Financial Officer
& Treasurer 	 
	 




 









 








INVACARE CORPORATION

THIRD AMENDMENT TO CREDIT AGREEMENT AND CONSENT




	 	 	 	 	 
	

CANADIAN GUARANTORS:	 1207273 ALBERTA ULC,

an Alberta corporation

2083806 ONTARIO INC.,

an Ontario corporation

6123449 CANADA INC.,

a Canada corporation

INVACARE CANADA L.P.,

an Ontario limited partnership

INVACARE CANADA GENERAL PARTNER INC., 

a Canada corporation

MOTION CONCEPTS L.P.,

an Ontario limited partnership

PERPETUAL MOTION ENTERPRISES LIMITED, 

an Ontario corporation

 	 
	 	By:  	/s/ Robert K. Gudbranson
 	 
	 	 	Name:  	Robert K. Gudbranson 	 
	 	 	Title:  	Senior Vice President, Chief Financial Officer
& Treasurer 	 
	 




 









 








INVACARE CORPORATION

THIRD AMENDMENT TO CREDIT AGREEMENT AND CONSENT




	 	 	 	 	 
	AUSTRALIAN GUARANTORS:	 



AUSTRALIAN HEALTHCARE EQUIPMENT PTY LTD, 

an Australian corporation

HOME HEALTH EQUIPMENT PTY LTD,

an Australian corporation

MORRIS SURGICAL PTY LTD,

an Australian corporation

 	 
	 	By:  	/s/ Robert K. Gudbranson
 	 
	 	 	Name:  	Robert K. Gudbranson 	 
	 	 	Title:  	Senior Vice President, Chief Financial Officer
& Treasurer 	 
	 




 











 





INVACARE CORPORATION

THIRD AMENDMENT TO CREDIT AGREEMENT AND CONSENT




	 	 	 	 	 
	FOREIGN GUARANTORS:              	INVACARE A/S,

a Danish limited liability company

INVACARE B.V.,

a Dutch private limited liability company

INVACARE EC-HØNG A/S,

a Danish limited company

INVACARE HOLDINGS TWO B.V.,

a Dutch private limited liability company

INVACARE UK OPERATIONS LTD.,

a private limited company organized under the laws of

England and Wales

KÜSCHALL AG,

a Swiss corporation

 	 
	 	By:  	/s/ Robert K. Gudbranson
 	 
	 	 	Name:  	Robert K. Gudbranson 	 
	 	 	Title:  	Senior Vice President, Chief Financial Officer

& Treasurer 	 



 









 






	 	 	 	 	 



INVACARE CORPORATION

THIRD AMENDMENT TO CREDIT AGREEMENT AND CONSENT




	 	 	 	 	 	 	 	 
	LENDERS:	 	PNC BANK, NATIONAL ASSOCIATION

(formerly, National City Bank), as

Multicurrency Administrative Agent
	
	 
	 	 	 	 	 	 	
	 

	 	By:	 	/s/ Robert S. Coleman	
	 	 	 	 	 	
	 

	 	 	 	Name:	 	Robert S. Coleman	
	 

	 	 	 	 	 	 	
	 

	 	 	 	Title:	 	Senior Vice President	
	 

	 	 	 	 	 	 	





 









 






INVACARE CORPORATION

THIRD AMENDMENT TO CREDIT AGREEMENT AND CONSENT




	 	 	 	 	 	 	 	
	 	 	PNC BANK, NATIONAL ASSOCIATION

(formerly, National City Bank), as Lender,

Multicurrency Collateral Agent, Swing Line Lender

and L/C Issuer	
	 
	 	 	 	 	 	 	
	 

	 	By:	 	/s/ Robert S. Coleman 	
	 	 	 	 	 	
	 

	 	 	 	Name:	 	Robert S. Coleman	
	 

	 	 	 	 	 	 	
	 

	 	 	 	Title:	 	Senior Vice President	
	 

	 	 	 	 	 	 	





 









 







INVACARE CORPORATION

THIRD AMENDMENT TO CREDIT AGREEMENT AND CONSENT




	 	 	 	 	 	 	 	
	 	 	PNC BANK CANADA BRANCH (formerly

National City Bank,Canada Branch), as Lender,

as Canadian Administrative Agent and Canadian

Collateral Agent	
	 
	 	 	 	 	 	 	
	 

	 	By:	 	/s/ C.
Stode                   /s/
G. W. Hinis	
	 	 	 	 	 	
	 

	 	 	 	Name:	 	C. Stode           G. W. Hinis	
	 

	 	 	 	 	 	 	
	 

	 	 	 	Title:	 	SVP                 SVP 	
	 

	 	 	 	 	 	 	





 









 






INVACARE CORPORATION

THIRD AMENDMENT TO CREDIT AGREEMENT AND CONSENT




	 	 	 	 	 	 	 	
	 	 	BANC OF AMERICA SECURITIES ASIA

LIMITED, as Lender,
Australian Administrative

Agent and Australian Collateral Agent	
	 
	 	 	 	 	 	 	
	 

	 	By:	 	/s/ Susana Yen 	
	 	 	 	 	 	
	 

	 	 	 	Name:	 	Susana Yen 	
	 

	 	 	 	 	 	 	
	 

	 	 	 	Title:	 	Vice President 	
	 

	 	 	 	 	 	 	






 











 





INVACARE CORPORATION

THIRD AMENDMENT TO CREDIT AGREEMENT AND CONSENT




	 	 	 	 	 
	 	

BANK OF AMERICA, N.A., as Lender, Australian L/C

Issuer and Multicurrency L/C Issuer

 	 
	 	By:  	/s/
Yinghua Zhang	 
	 	 	Name:  	Yinghua Zhang	 
	 	 	Title: 	Vice
President	 



 









 







INVACARE CORPORATION

THIRD AMENDMENT TO CREDIT AGREEMENT AND CONSENT




	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION,

as a Lender

 	 
	 	By:  	/s/
Sukanya V. Raj	 
	 	 	Name:  	Sukanya V. Raj	 
	 	 	Title: 	Vice
President & Portfolio Manager	 



 









 






	 	 	 	 	 



INVACARE CORPORATION

THIRD AMENDMENT TO CREDIT AGREEMENT AND CONSENT





	 	 	 	 	 	 	 
	 	 	Cooperatieve Centrale
Raiffeisen-	 	 
	 	 	Boerenleenbank, B.A.	 	 
	 	 	“Rabobank Nederland”, New York Branch,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Robert M. Mandula
 

Robert M. Mandula
	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Rebecca O. Morrow
 

Rebecca O. Morrow
	 	 
	 

	 	Title:
	 	Executive Director	 	 













 









 






	 	 	 	 	 



INVACARE CORPORATION

THIRD AMENDMENT TO CREDIT AGREEMENT AND CONSENT





	 	 	 	 	 	 	 
	 	 	SunTrust Bank,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Marshall Hood
 

Marshall Hood
	 	 
	 

	 	Title:
	 	Vice President	 	 













 









 






	 	 	 	 	 



INVACARE CORPORATION

THIRD AMENDMENT TO CREDIT AGREEMENT AND CONSENT





	 	 	 	 	 	 	 
	 	 	Nordea Bank Finland PLC,	 	 
	 	 	New York & Cayman Islands Branches,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Henrik M. Steffensen
 

Henrik M. Steffensen
	 	 
	 

	 	Title:
	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Gerald E. Chelius, Jr.
 

Gerald E. Chelius, Jr.
	 	 
	 

	 	Title:
	 	SVP Credit	 	 













 









 






	 	 	 	 	 



SCHEDULE A




Restructuring