Exhibit 10.1


EXECUTION
COPY


	
  

 







CREDIT AGREEMENT


dated as of


September 24, 2014


among


MTS SYSTEMS CORPORATION


The Foreign Subsidiary Borrowers From Time to
Time Party Hereto


The Lenders Party Hereto


U.S. BANK NATIONAL ASSOCIATION and
HSBC BANK USA,
NATIONAL ASSOCIATION

as Co-Documentation Agents


WELLS FARGO BANK, NATIONAL ASSOCIATION

as Syndication Agent


and

JPMORGAN CHASE BANK, N.A.

as Administrative Agent


	
  

 	
  

 	
  

 


J.P. MORGAN SECURITIES LLC and WELLS FARGO
SECURITIES, LLC

as Joint Bookrunners and Joint Lead Arrangers


	
  

 









TABLE OF CONTENTS


	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 Page

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE I
 Definitions

 	
  

 	
  

 
	
  

 
	
 SECTION
 1.01.

 	
 Defined
 Terms

 	
  

 	
 1

 
	
 SECTION
 1.02.

 	
 Classification
 of Loans and Borrowings

 	
  

 	
 23

 
	
 SECTION
 1.03.

 	
 Terms
 Generally

 	
  

 	
 23

 
	
 SECTION
 1.04.

 	
 Accounting
 Terms; GAAP

 	
  

 	
 23

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE II The
 Credits

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
 SECTION
 2.01.

 	
 Commitments

 	
  

 	
 24

 
	
 SECTION
 2.02.

 	
 Loans and
 Borrowings

 	
  

 	
 24

 
	
 SECTION
 2.03.

 	
 Requests for
 Revolving Borrowings

 	
  

 	
 25

 
	
 SECTION
 2.04.

 	
 Determination
 of Dollar Amounts

 	
  

 	
 25

 
	
 SECTION
 2.05.

 	
 Swingline
 Loans

 	
  

 	
 26

 
	
 SECTION
 2.06.

 	
 Letters of
 Credit

 	
  

 	
 27

 
	
 SECTION
 2.07.

 	
 Funding of
 Borrowings

 	
  

 	
 32

 
	
 SECTION
 2.08.

 	
 Interest
 Elections

 	
  

 	
 32

 
	
 SECTION
 2.09.

 	
 Termination
 and Reduction of Commitments

 	
  

 	
 34

 
	
 SECTION
 2.10.

 	
 Repayment of
 Loans; Evidence of Debt

 	
  

 	
 34

 
	
 SECTION
 2.11.

 	
 Prepayment
 of Loans

 	
  

 	
 35

 
	
 SECTION 2.12.

 	
 Fees

 	
  

 	
 36

 
	
 SECTION
 2.13.

 	
 Interest

 	
  

 	
 37

 
	
 SECTION
 2.14.

 	
 Alternate
 Rate of Interest

 	
  

 	
 37

 
	
 SECTION
 2.15.

 	
 Increased
 Costs

 	
  

 	
 38

 
	
 SECTION
 2.16.

 	
 Break
 Funding Payments

 	
  

 	
 39

 
	
 SECTION
 2.17.

 	
 Taxes

 	
  

 	
 40

 
	
 SECTION
 2.18.

 	
 Payments
 Generally; Pro Rata Treatment; Sharing of Set-offs

 	
  

 	
 43

 
	
 SECTION
 2.19.

 	
 Mitigation
 Obligations; Replacement of Lenders

 	
  

 	
 44

 
	
 SECTION
 2.20.

 	
 Expansion
 Option

 	
  

 	
 45

 
	
 SECTION
 2.21.

 	
 Market
 Disruption

 	
  

 	
 46

 
	
 SECTION
 2.22.

 	
 Judgment
 Currency

 	
  

 	
 47

 
	
 SECTION
 2.23.

 	
 Designation
 of Foreign Subsidiary Borrowers

 	
  

 	
 47

 
	
 SECTION
 2.24.

 	
 Senior Debt

 	
  

 	
 48

 
	
 SECTION
 2.25.

 	
 Defaulting
 Lenders

 	
  

 	
 48

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE III
 Representations and Warranties

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
 SECTION
 3.01.

 	
 Organization;
 Powers; Subsidiaries

 	
  

 	
 49

 
	
 SECTION
 3.02.

 	
 Authorization;
 Enforceability

 	
  

 	
 50

 
	
 SECTION
 3.03.

 	
 Governmental
 Approvals; No Conflicts

 	
  

 	
 50

 
	
 SECTION
 3.04.

 	
 Financial
 Condition; No Material Adverse Change

 	
  

 	
 50

 
	
 SECTION
 3.05.

 	
 Properties

 	
  

 	
 50

 
	
 SECTION
 3.06.

 	
 Litigation
 and Environmental Matters

 	
  

 	
 51

 
	
 SECTION
 3.07.

 	
 Compliance
 with Laws and Agreements

 	
  

 	
 51

 
	
 SECTION
 3.08.

 	
 Investment Company
 Status

 	
  

 	
 51

 
	
 SECTION
 3.09.

 	
 Taxes

 	
  

 	
 51

 
	
 SECTION
 3.10.

 	
 ERISA

 	
  

 	
 51

 
	
 SECTION
 3.11.

 	
 Disclosure

 	
  

 	
 51

 









TABLE OF CONTENTS 
(continued)


	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 Page

 
	
  

 
	
 SECTION
 3.12.

 	
 Federal
 Reserve Regulations

 	
  

 	
 52

 
	
 SECTION
 3.13.

 	
 Liens

 	
  

 	
 52

 
	
 SECTION
 3.14.

 	
 No Default

 	
  

 	
 52

 
	
 SECTION
 3.15.

 	
 No
 Burdensome Restrictions

 	
  

 	
 52

 
	
 SECTION
 3.16.

 	
 Anti-Corruption
 Laws and Sanctions

 	
  

 	
 52

 
	
  

 
	
 ARTICLE IV
 Conditions

 	
  

 	
  

 
	
  

 
	
 SECTION
 4.01.

 	
 Effective
 Date

 	
  

 	
 52

 
	
 SECTION
 4.02.

 	
 Each Credit
 Event

 	
  

 	
 53

 
	
 SECTION
 4.03.

 	
 Designation
 of a Foreign Subsidiary Borrower

 	
  

 	
 54

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE V
 Affirmative Covenants

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
 SECTION
 5.01.

 	
 Financial
 Statements and Other Information

 	
  

 	
 54

 
	
 SECTION
 5.02.

 	
 Notices of
 Material Events

 	
  

 	
 55

 
	
 SECTION
 5.03.

 	
 Existence;
 Conduct of Business

 	
  

 	
 56

 
	
 SECTION
 5.04.

 	
 Payment of
 Obligations

 	
  

 	
 56

 
	
 SECTION
 5.05.

 	
 Maintenance
 of Properties; Insurance

 	
  

 	
 56

 
	
 SECTION
 5.06.

 	
 Books and
 Records; Inspection Rights

 	
  

 	
 56

 
	
 SECTION
 5.07.

 	
 Compliance
 with Laws and Material Contractual Obligations

 	
  

 	
 56

 
	
 SECTION
 5.08.

 	
 Use of
 Proceeds

 	
  

 	
 56

 
	
 SECTION
 5.09.

 	
 Subsidiary
 Guaranty

 	
  

 	
 57

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE VI
 Negative Covenants

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
 SECTION
 6.01.

 	
 Indebtedness

 	
  

 	
 57

 
	
 SECTION
 6.02.

 	
 Liens

 	
  

 	
 58

 
	
 SECTION
 6.03.

 	
 Fundamental
 Changes and Asset Sales

 	
  

 	
 59

 
	
 SECTION
 6.04.

 	
 Investments,
 Loans, Advances, Guarantees and Acquisitions

 	
  

 	
 60

 
	
 SECTION
 6.05.

 	
 Swap
 Agreements

 	
  

 	
 60

 
	
 SECTION
 6.06.

 	
 Transactions
 with Affiliates

 	
  

 	
 60

 
	
 SECTION
 6.07.

 	
 Restricted
 Payments

 	
  

 	
 61

 
	
 SECTION
 6.08.

 	
 Restrictive
 Agreements

 	
  

 	
 61

 
	
 SECTION
 6.09.

 	
 Subordinated
 Indebtedness and Amendments to Subordinated Indebtedness Documents

 	
  

 	
 61

 
	
 SECTION
 6.10.

 	
 Sale and
 Leaseback Transactions

 	
  

 	
 62

 
	
 SECTION
 6.11.

 	
 Financial
 Covenants

 	
  

 	
 62

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE VII
 Events of Default

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE VIII
 The Administrative Agent

 	
  

 	
  

 
	
  

 	
  

 	
  

 
	
 ARTICLE IX
 Miscellaneous

 	
  

 	
  

 
	
 SECTION
 9.01. 

 	
 Notices

 	
  

 	
 66

 
	
 SECTION
 9.02. 

 	
 Waivers;
 Amendments

 	
  

 	
 68

 
	
 SECTION
 9.03. 

 	
 Expenses;
 Indemnity; Damage Waiver

 	
  

 	
 69

 
	
 SECTION
 9.04. 

 	
 Successors
 and Assigns

 	
  

 	
 71

 






ii






TABLE OF CONTENTS 
(continued)


	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 Page

 
	
  

 
	
 SECTION
 9.05.

 	
 Survival

 	
  

 	
 74

 
	
 SECTION
 9.06.

 	
 Counterparts;
 Integration; Effectiveness; Electronic Execution

 	
  

 	
 74

 
	
 SECTION
 9.07.

 	
 Severability

 	
  

 	
 74

 
	
 SECTION
 9.08.

 	
 Right of
 Setoff

 	
  

 	
 75

 
	
 SECTION
 9.09.

 	
 Governing
 Law; Jurisdiction; Consent to Service of Process

 	
  

 	
 75

 
	
 SECTION
 9.10.

 	
 WAIVER OF
 JURY TRIAL

 	
  

 	
 76

 
	
 SECTION
 9.11.

 	
 Headings

 	
  

 	
 76

 
	
 SECTION
 9.12.

 	
 Confidentiality

 	
  

 	
 76

 
	
 SECTION
 9.13.

 	
 USA PATRIOT
 Act

 	
  

 	
 77

 
	
 SECTION
 9.14.

 	
 Releases of
 Subsidiary Guarantors

 	
  

 	
 77

 
	
 SECTION
 9.15.

 	
 Interest
 Rate Limitation

 	
  

 	
 78

 
	
 SECTION
 9.16.

 	
 No Advisory
 or Fiduciary Responsibility

 	
  

 	
 78

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE X
 Cross-Guarantee

 	
  

 	
  

 






	
  

 	
  

 	
  

 
	
 SCHEDULES:

 	
  

 	
  

 
	
  

 
	
 Schedule 2.01

 	
  

 	
 –
 Commitments

 
	
 Schedule 2.06

 	
  

 	
 – Existing
 Letters of Credit

 
	
 Schedule 3.01

 	
  

 	
 –
 Subsidiaries

 
	
 Schedule 6.01

 	
  

 	
 – Existing
 Indebtedness

 
	
 Schedule 6.02

 	
  

 	
 – Existing
 Liens

 






	
  

 	
  

 	
  

 
	
 EXHIBITS:

 	
  

 	
  

 
	
  

 	
  

 	
  

 
	
 Exhibit A

 	
  

 	
 – Form of
 Assignment and Assumption

 
	
 Exhibit B

 	
  

 	
 –
 [Intentionally Omitted]

 
	
 Exhibit C

 	
  

 	
 – Form of
 Increasing Lender Supplement

 
	
 Exhibit D

 	
  

 	
 – Form of
 Augmenting Lender Supplement

 
	
 Exhibit  E

 	
  

 	
 – List of
 Closing Documents

 
	
 Exhibit F-1

 	
  

 	
 – Form of
 Borrowing Subsidiary Agreement

 
	
 Exhibit F-2

 	
  

 	
 – Form of
 Borrowing Subsidiary Termination

 
	
 Exhibit G

 	
  

 	
 – Form of
 Subsidiary Guaranty

 
	
 Exhibit H

 	
  

 	
 – Form of
 Compliance Certificate

 
	
 Exhibit I-1

 	
  

 	
 – Form of
 U.S. Tax Certificate (Foreign Lenders That Are Not Partnerships)

 
	
 Exhibit I-2

 	
  

 	
 – Form of
 U.S. Tax Certificate (Foreign Participants That Are Not Partnerships)

 
	
 Exhibit I-3

 	
  

 	
 – Form of
 U.S. Tax Certificate (Foreign Participants That Are Partnerships)

 
	
 Exhibit I-4

 	
  

 	
 – Form of
 U.S. Tax Certificate (Foreign Lenders That Are Partnerships)

 
	
 Exhibit J-1

 	
  

 	
 – Form of
 Borrowing Request

 
	
 Exhibit J-2

 	
  

 	
 – Form of
 Interest Election Request

 
	
 Exhibit K

 	
  

 	
 – Form of
 Note

 


iii





                    CREDIT
AGREEMENT (this “Agreement”) dated as of September 24, 2014 among MTS
SYSTEMS CORPORATION, the FOREIGN SUBSIDIARY BORROWERS from time to time party
hereto, the LENDERS from time to time party hereto, WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Syndication Agent and U.S. BANK NATIONAL ASSOCIATION and HSBC BANK USA, NATIONAL ASSOCIATION,
as Co-Documentation Agents and JPMORGAN CHASE BANK, N.A., as Administrative
Agent.


                    The
parties hereto agree as follows:


ARTICLE I


Definitions


                    SECTION
1.01. Defined Terms. As used in this Agreement, the following terms have the
meanings specified below: 


                    “ABR”,
when used in reference to any Loan or Borrowing, refers to a Loan, or the Loans
comprising such Borrowing, bearing interest at a rate determined by reference
to the Alternate Base Rate.


                    “Adjusted
LIBO Rate” means, with respect to any Eurocurrency Borrowing for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to
the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.


                    “Administrative
Agent” means JPMorgan Chase Bank, N.A. (including its successors, branches
and affiliates), in its capacity as administrative agent for the Lenders
hereunder.


                    “Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied by
the Administrative Agent.


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


                    
“Affiliate” means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.


                    “Agent
Party” has the meaning assigned to such term in Section 9.01(d).


                    “Aggregate
Commitment” means the aggregate of the Commitments of all of the Lenders,
as reduced or increased from time to time pursuant to the terms and conditions
hereof. As of the Effective Date, the Aggregate Commitment is $200,000,000.


                    “Agreed
Currencies” means (i) Dollars, (ii) euro, (iii) Japanese
Yen, (iv) Pounds Sterling, (v) Canadian Dollars, (vi) Swiss
Francs and (vii) any other currency (x) that is a lawful currency (other
than Dollars) that is readily available and freely transferable and convertible
into Dollars, (y) for which a LIBOR Screen Rate is available in the
Administrative Agent’s determination and (z) that is agreed to by the
Administrative Agent and each of the Lenders.


                    “Alternate
Base Rate” means, for any day, a rate per annum equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Federal Funds
Effective Rate in effect on such day plus 1⁄2 of 1% and (c) the Adjusted
LIBO Rate for a one month Interest Period in Dollars on such day (or if such 





day is not a Business Day, the immediately preceding Business Day) plus
1%, provided that, for the avoidance of doubt, the Adjusted LIBO Rate
for any day shall be based on the rate appearing on Reuters Screen LIBOR01 Page
(or on any successor or substitute page of such service) at approximately
11:00 a.m. London time on such day. Any change in the Alternate Base Rate
due to a change in the Prime Rate, the Federal Funds Effective Rate or the
Adjusted LIBO Rate shall be effective from and including the effective date of
such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted
LIBO Rate, respectively.


                    
“Anti-Corruption Laws” means all laws, rules, and regulations of any
jurisdiction applicable to the Company or its Subsidiaries from time to time
concerning or relating to bribery or corruption.


                    “Applicable
Percentage” means, with respect to any Lender, the percentage of the
Aggregate Commitment represented by such Lender’s Commitment; provided
that, in the case of Section 2.25 when a Defaulting Lender shall exist,
“Applicable Percentage” shall mean the percentage of the Aggregate Commitment
(disregarding any Defaulting Lender’s Commitment) represented by such Lender’s
Commitment. If the Commitments have terminated or expired, the Applicable
Percentages shall be determined based upon the Commitments most recently in
effect, giving effect to any assignments and to any Lender’s status as a
Defaulting Lender at the time of determination.


                    “Applicable
Rate” means, for any day, with respect to any Eurocurrency Loan or any ABR
Loan, or with respect to the commitment fees and commission on outstanding
performance and commercial payable hereunder, as the case may be, the
applicable rate per annum set forth below under the caption “Commitment Fee
Rate”, “Eurocurrency Spread”, “ABR Spread” or “Performance and Commercial L/C
Rate”, as the case may be, based upon the Leverage Ratio applicable on such
date:


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 Leverage
 Ratio:

 	
 Commitment

 Fee Rate

 	
 Eurocurrency
 

 Spread

 	
 ABR
 Spread

 	
 Performance

 and Commercial

 L/C Rate

 
	
   Category 1:

 	
 < 1.00 to 1.00

 	
 0.15%

 	
 1.00%

 	
 0%

 	
 0.50%

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
   Category 2:

 	
 > 1.00 to 1.00 but 

 < 1.50 to 1.00

 	
 0.175%

 	
 1.125%

 	
 0.125%

 	
 0.5625%

 
	
   Category 3:

 	
 > 1.50 to 1.00 but 

 < 2.00 to 1.00

 	
 0.20%

 	
 1.375%

 	
 0.375%

 	
 0.6875%

 
	
   Category 4:

 	
 > 2.00 to 1.00 but 

 < 2.50 to 1.00

 	
 0.25%

 	
 1.50%

 	
 0.50%

 	
 0.
 75%

 
	
   Category 5:

 	
 > 2.50 to 1.00

 	
 0.30%

 	
 1.625%

 	
 0.625%

 	
 0.8125%

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 


          For
purposes of the foregoing, 


          (i) if at
any time the Company fails to deliver the Financials on or before the date the
Financials are due pursuant to Section 5.01, Category 5 shall be deemed
applicable for the period commencing three (3) Business Days after the
required date of delivery and ending on the date which is three
(3) Business Days after the Financials are actually delivered, after which
the Category shall be determined in accordance with the table above as
applicable;


          (ii)
adjustments, if any, to the Category then in effect shall be effective three
(3) Business Days after the Administrative Agent has received the
applicable Financials (it being understood and agreed that 


2





each change in Category shall apply during the period commencing on the
effective date of such change and ending on the date immediately preceding the
effective date of the next such change); and


          (iii)
notwithstanding the foregoing, Category 1 shall be deemed to be applicable
until the Administrative Agent’s receipt of the applicable Financials for the
Company’s first fiscal quarter ending after the Effective Date (unless such
Financials demonstrate that Category 2, 3, 4 or 5 should have been applicable
during such period, in which case such other Category shall be deemed to be
applicable during such period) and adjustments to the Category then in effect
shall thereafter be effected in accordance with the preceding paragraphs.


                    “Approved
Fund” has the meaning assigned to such term in Section 9.04.


                    
“Assignment and Assumption” means an assignment and assumption agreement
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative
Agent, in the form of Exhibit A or any other form approved by the
Administrative Agent.


                    “Augmenting
Lender” has the meaning assigned to such term in Section 2.20.


                    “Availability
Period” means the period from and including the Effective Date to but
excluding the earlier of the Maturity Date and the date of termination of the
Commitments.


                    “Available
Revolving Commitment” means, at any time with respect to any Lender, the
Commitment of such Lender then in effect minus the Revolving Credit Exposure of
such Lender at such time; it being understood and agreed that any Lender’s
Swingline Exposure shall not be deemed to be a component of the Revolving
Credit Exposure for purposes of calculating the commitment fee under
Section 2.12(a).


                    “Banking
Services” means each and any of the following bank services provided to the
Company or any Subsidiary by any Lender or any of its Affiliates:
(a) credit cards for commercial customers (including, without limitation,
commercial credit cards and purchasing cards), (b) stored value cards and
(c) treasury management services (including, without limitation,
controlled disbursement, automated clearinghouse transactions, return items,
overdrafts and interstate depository network services).


                    “Banking
Services Agreement” means any agreement entered into by the Company or any
Subsidiary in connection with Banking Services.


                    “Banking
Services Obligations” means any and all obligations of the Company or any
Subsidiary, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor) in connection with Banking
Services.


                    “Bankruptcy
Event” means, with respect to any Person, such Person becomes the subject
of a bankruptcy or insolvency proceeding, or has had a receiver, conservator,
trustee, administrator, custodian, assignee for the benefit of creditors or
similar Person charged with the reorganization or liquidation of its business
appointed for it, or, in the good faith determination of the Administrative
Agent, has taken any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any such proceeding or appointment, provided
that a Bankruptcy Event shall not result solely by virtue of any ownership
interest, or the acquisition of any ownership interest, in such Person by a
Governmental Authority or instrumentality thereof, provided, further, that such
ownership interest does not result in or provide such Person with immunity from
the jurisdiction of courts within the United States or from the


3





enforcement
of judgments or writs of attachment on its assets or permit such Person (or
such Governmental Authority or instrumentality) to reject, repudiate, disavow
or disaffirm any contracts or agreements made by such Person.


                    “Board”
means the Board of Governors of the Federal Reserve System of the United States
of America.


                    “Borrower”
means the Company or any Foreign Subsidiary Borrower.


                    “Borrowing”
means (a) Revolving Loans of the same Type, made, converted or continued
on the same date and, in the case of Eurocurrency Loans, as to which a single
Interest Period is in effect, (b) Incremental Term Loans of the same Type,
made, converted or continued on the same date and, in the case of Eurocurrency
Loans, as to which a single Interest Period is in effect or (c) a Swingline
Loan.


                    “Borrowing
Request” means a request by any Borrower for a Revolving Borrowing in
accordance with Section 2.03 in the form attached hereto as Exhibit J-1.


                    “Borrowing
Subsidiary Agreement” means a Borrowing Subsidiary Agreement substantially
in the form of Exhibit F-1.


                    
“Borrowing Subsidiary Termination” means a Borrowing Subsidiary
Termination substantially in the form of Exhibit F-2.


                    “Burdensome
Restrictions” means any consensual encumbrance or restriction of the type
described in clause (a) or (b) of Section 6.08 (without giving
effect to any exceptions described in clauses (i) through
(iv) of such Section 6.08).


                    “Business
Day” means any day that is not a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to remain closed; provided
that, when used in connection with a Eurocurrency Loan, the term “Business
Day” shall also exclude any day on which banks are not open for dealings in
the relevant Agreed Currency in the London interbank market or the principal
financial center of such Agreed Currency (and, if the Borrowings or LC
Disbursements which are the subject of a borrowing, drawing, payment,
reimbursement or rate selection are denominated in euro, the term “Business
Day” shall also exclude any day on which the TARGET2 payment system is not
open for the settlement of payments in euro).


                    “Canadian
Dollars” means the lawful currency of Canada.


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


                    “CDOR
Rate” means, for any Loans denominated in Canadian Dollars, the CDOR Screen
Rate or, if applicable pursuant to the terms of Section 2.14, the applicable
Reference Bank Rate.


                    “CDOR
Screen Rate” means, for the relevant Interest Period, the Canadian deposit
offered rate which, in turn means on any day the sum of: (a) the annual rate of
interest determined with reference to the arithmetic average of the discount
rate quotations of all institutions listed in respect of the 


4





relevant interest period for Canadian Dollar-denominated bankers’
acceptances displayed and identified as such on the “Reuters Screen CDOR Page”
as defined in the International Swap Dealer Association, Inc. definitions, as
modified and amended from time to time, as of 10:00 a.m. (Toronto, Ontario time)
on the Quotation Day for such Interest Period (as adjusted by the
Administrative Agent after 10:00 a.m. (Toronto, Ontario time) to reflect any
error in the posted rate of interest or in the posted average annual rate of
interest), plus (b) 0.10% per annum; provided that if such rates
are not available on the Reuters Screen CDOR Page on any particular day, then
the Canadian deposit offered rate component of such rate on that day shall be
calculated as the cost of funds quoted by the Administrative Agent to raise
Canadian Dollars for the applicable interest period as of 10:00 a.m. (Toronto,
Ontario time) on the Quotation Day for such Interest Period for commercial
loans or other extensions of credit to businesses of comparable credit risk; or
if such day is not a Business Day, then as quoted by the Administrative Agent
on the immediately preceding Business Day.


                    “Change
in Control” means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the SEC
thereunder as in effect on the date hereof), of Equity Interests representing
more than 35% of the aggregate ordinary voting power represented by the issued
and outstanding Equity Interests of the Company; (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of
the Company by Persons who were neither (i) nominated by the board of
directors of the Company nor (ii) appointed by directors so nominated;
(c) the acquisition of direct or indirect Control of the Company by any
Person or group; (d) the occurrence of a change in control, or other
similar provision, as defined in any agreement or instrument evidencing any
Material Indebtedness (triggering a default or mandatory prepayment, which
default or mandatory prepayment has not been waived in writing); or
(e) the Company ceases to own, directly or indirectly, and Control 100%
(other than directors’ qualifying shares) of the ordinary voting and economic
power of any Foreign Subsidiary Borrower.


                    
“Change in Law” means the occurrence, after the date of this Agreement
(or with respect to any Lender, if later, the date on which such Lender becomes
a Lender), of any of the following: (a) the adoption or taking effect of
any law, rule, regulation or treaty, (b) any change in any law, rule,
regulation or treaty or in the administration, interpretation, implementation
or application thereof by any Governmental Authority, or (c) the making or
issuance of any request, rules, guideline, requirement or directive (whether or
not having the force of law) by any Governmental Authority; provided however,
that notwithstanding anything herein to the contrary, (i) the Dodd-Frank
Wall Street Reform and Consumer Protection Act and all requests, rules,
guidelines, requirements and directives thereunder, issued in connection
therewith or in implementation thereof, and (ii) all requests, rules,
guidelines, requirements and directives promulgated by the Bank for
International Settlements, the Basel Committee on Banking Supervision (or any
successor or similar authority) or the United States or foreign regulatory
authorities, in each case pursuant to Basel III, shall in each case be deemed
to be a “Change in Law” regardless of the date enacted, adopted, issued or
implemented.


                    “Class”,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans, Incremental Term
Loans or Swingline Loans.


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


                    “COF
Rate” has the meaning assigned to such term in Section 2.14(a).


5







                    “Co-Documentation
Agent” means each of U.S. Bank National Association and HSBC Bank USA,
National Association in its capacity as co-documentation agent for the credit
facility evidenced by this Agreement.


                    “Commitment”
means, with respect to each Lender, the commitment of such Lender to make
Revolving Loans and to acquire participations in Letters of Credit and
Swingline Loans hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender’s Revolving Credit Exposure hereunder, as such
commitment may be (a) reduced or terminated from time to time pursuant to
Section 2.09, (b) increased from time to time pursuant to
Section 2.20 and (c) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 9.04. The initial
amount of each Lender’s Commitment is set forth on Schedule 2.01,
or in the Assignment and Assumption or other documentation contemplated hereby
pursuant to which such Lender shall have assumed its Commitment, as applicable.


                    “Commodity
Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as
amended from time to time, and any successor statute.


                    “Communications”
has the meaning assigned to such term in Section 9.01(d).


                    “Company”
means MTS Systems Corporation, a Minnesota corporation.


                    “Computation
Date” is defined in Section 2.04.


                    “Connection
Income Taxes” means Other Connection Taxes that are imposed on or measured
by net income (however denominated) or that are franchise Taxes or branch
profits Taxes.


                    “Consolidated
EBITDA” means Consolidated Net Income plus, to the extent deducted from revenues
in determining Consolidated Net Income, (i) Consolidated Interest Expense,
(ii) expense for taxes paid or accrued, (iii) depreciation,
(iv) amortization, (v) extraordinary non-cash losses incurred other
than in the ordinary course of business minus, to the extent included in
Consolidated Net Income, (vi) interest income and (vii) extraordinary
gains realized other than in the ordinary course of business, all calculated
for the Company and its Subsidiaries in accordance with GAAP on a consolidated
basis. For the purposes of calculating Consolidated EBITDA for any period of
four consecutive fiscal quarters (each such period, a “Reference Period”),
(i) if at any time during such Reference Period the Company or any
Subsidiary shall have made any Material Disposition, the Consolidated EBITDA
for such Reference Period shall be reduced by an amount equal to the
Consolidated EBITDA (if positive) attributable to the property that is the
subject of such Material Disposition for such Reference Period or increased by
an amount equal to the Consolidated EBITDA (if negative) attributable thereto
for such Reference Period, and (ii) if during such Reference Period the
Company or any Subsidiary shall have made a Material Acquisition, Consolidated
EBITDA for such Reference Period shall be calculated after giving
pro forma effect thereto as if such Material Acquisition occurred on the
first day of such Reference Period. As used in this definition, “Material
Acquisition” means any acquisition of property or series of related
acquisitions of property that (a) constitutes (i) assets comprising
all or substantially all or any significant portion of a business or operating
unit of a business, or (ii) all or substantially all of the common stock
or other Equity Interests of a Person, and (b) involves the payment of
consideration by the Company and its Subsidiaries in excess of $5,000,000; and
“Material Disposition” means any sale, transfer or disposition of
property or series of related sales, transfers, or dispositions of property
that yields gross proceeds to the Company or any of its Subsidiaries in excess
of $5,000,000.


                    “Consolidated
Interest Expense” means, with reference to any period, the interest expense
(including without limitation interest expense under Capital Lease Obligations
that is treated as


6





interest in accordance with GAAP) of the Company and its Subsidiaries
calculated on a consolidated basis for such period with respect to all
outstanding Indebtedness of the Company and its Subsidiaries allocable to such
period in accordance with GAAP (including, without limitation, net costs under
interest rate Swap Agreements to the extent such net costs are allocable to
such period in accordance with GAAP).


                    “Consolidated
Net Income” means, with reference to any period, the net income (or loss)
of the Company and its Subsidiaries calculated in accordance with GAAP on a
consolidated basis (without duplication) for such period.


                    “Consolidated
Total Assets” means, as of the date of any determination thereof, total
assets of the Company and its Subsidiaries calculated in accordance with GAAP
on a consolidated basis as of such date.


                    “Consolidated
Total Indebtedness” means at any time the sum, without duplication, of
(a) the aggregate Indebtedness of the Company and its Subsidiaries
calculated on a consolidated basis as of such time in accordance with GAAP,
(b) the aggregate amount of Indebtedness of the Company and its
Subsidiaries relating to the maximum drawing amount of all letters of credit
outstanding and bankers acceptances and (c) Indebtedness of the type
referred to in clauses (a) or (b) hereof of another Person guaranteed
by the Company or any of its Subsidiaries; provided that Consolidated
Total Indebtedness shall exclude the aggregate amount of Indebtedness of the
Company and its Subsidiaries in respect of undrawn performance and commercial
letters of credit, Guarantees related thereto, and obligations with respect to
deposits and advances in the ordinary course of business.


                     “Control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. “Controlling” and
“Controlled” have meanings correlative thereto.


                    “Country
Risk Event” means:


	
  

 	
  

 	
  

 
	
  

 	
           (i)         any
 law, action or failure to act by any Governmental Authority in any Borrower’s
 or Letter of Credit beneficiary’s country which has the effect of:

 
	
  

 	
  

 
	
  

 	
  

 	
              (a)         changing
 the obligations under the relevant Letter of Credit, the Credit Agreement or
 any of the other Loan Documents as originally agreed or otherwise creating
 any additional liability, cost or expense to an Issuing Bank, the Lenders or
 the Administrative Agent,

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
              (b)         changing
 the ownership or control by such Borrower or Letter of Credit beneficiary of
 its business, or

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
              (c)         preventing
 or restricting the conversion into or transfer of the applicable Agreed
 Currency;

 
	
  

 	
  

 	
  

 
	
  

 	
           (ii)        force
 majeure; or

 
	
  

 	
  

 
	
  

 	
           (iii)       any
 similar event

 


which, in relation to (i), (ii) and (iii), directly or indirectly,
prevents or restricts the payment or transfer of any amounts owing under the
relevant Letter of Credit in the applicable Agreed Currency into an account 


7





designated by the Administrative Agent or the relevant Issuing Bank and
freely available to the Administrative Agent or such Issuing Bank.


                    “Credit
Event” means a Borrowing, the issuance of a Letter of Credit, an LC
Disbursement or any of the foregoing.


                    “Credit
Party” means the Administrative Agent, each Issuing Bank, the Swingline
Lender or any other Lender.


                    “Deemed
Dividend” means, with respect to any Foreign Subsidiary, such Foreign
Subsidiary’s accumulated and undistributed earnings and profits being deemed to
be repatriated to the Company or the applicable parent Domestic Subsidiary
under Section 956 of the Code.


                    
“Default” means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.


                    “Defaulting
Lender” means any Lender that (a) has failed, within two
(2) Business Days of the date required to be funded or paid, to
(i) fund any portion of its Loans, (ii) fund any portion of its
participations in Letters of Credit or Swingline Loans or (iii) pay over
to any Credit Party any other amount required to be paid by it hereunder,
unless, in the case of clause (i) above, such Lender notifies the
Administrative Agent in writing that such failure is the result of such
Lender’s good faith determination that a condition precedent to funding (specifically
identified and including the particular default, if any) has not been
satisfied, (b) has notified the Company or any Credit Party in writing, or
has made a public statement to the effect, that it does not intend or expect to
comply with any of its funding obligations under this Agreement (unless such
writing or public statement indicates that such position is based on such
Lender’s good faith determination that a condition precedent (specifically
identified and including the particular default, if any) to funding a loan
under this Agreement cannot be satisfied) or generally under other agreements
in which it commits to extend credit, (c) has failed, within three
(3) Business Days after request by a Credit Party, acting in good faith,
to provide a certification in writing from an authorized officer of such Lender
that it will comply with its obligations (and is financially able to meet such
obligations) to fund prospective Loans and participations in then outstanding
Letters of Credit and Swingline Loans under this Agreement, provided that such
Lender shall cease to be a Defaulting Lender pursuant to this clause (c)
upon such Credit Party’s receipt of such certification in form and substance
satisfactory to it and the Administrative Agent, or (d) has become the
subject of a Bankruptcy Event.


                    “Dollar
Amount” of any currency at any date shall mean (i) the amount of such
currency if such currency is Dollars or (ii) the equivalent amount thereof
in Dollars if such currency is a Foreign Currency, calculated on the basis of
the Exchange Rate for such currency, on or as of the most recent Computation
Date provided for in Section 2.04.


                    “Dollars”
or “$” refers to lawful money of the United States of America.


                    “Domestic
Subsidiary” means a Subsidiary organized under the laws of a jurisdiction
located in the United States of America.


                    “ECP”
means an “eligible contract participant” as defined in Section 1(a)(18) of the
Commodity Exchange Act or any regulations promulgated thereunder and the
applicable rules issued by the Commodity Futures Trading Commission and/or the
SEC.


8





                    “Effective
Date” means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 9.02).


                    “Electronic
Signature” means an electronic sound, symbol, or process attached to, or
associated with, a contract or other record and adopted by a Person with the
intent to sign, authenticate or accept such contract or record.


                    “Electronic
System” means any electronic system, including e-mail, e-fax, Intralinks®,
ClearPar® and any other Internet or extranet-based site, whether such
electronic system is owned, operated or hosted by the Administrative Agent and
the Issuing Bank and any of its respective Related Parties or any other Person,
providing for access to data protected by passcodes or other security system. 


                    “Eligible
Foreign Subsidiary” means (i) MTS Systems GmbH, a limited liability
company organized under the laws of Germany and (ii) any other Foreign
Subsidiary that is approved from time to time by the Administrative Agent and
each of the Lenders.


                    “Environmental
Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to the environment, preservation or reclamation of natural resources, the
management, release or threatened release of any Hazardous Material or to
health and safety matters.


                    “Environmental
Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or
indemnities), of the Company or any Subsidiary directly or indirectly resulting
from or based upon (a) violation of any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or disposal of
any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.


                    “Equity
Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or
other equity ownership interests in a Person, and any warrants, options or
other rights entitling the holder thereof to purchase or acquire any of the
foregoing.


                    “Equivalent
Amount” of any currency with respect to any amount of Dollars at any date
shall mean the equivalent in such currency of such amount of Dollars,
calculated on the basis of the Exchange Rate for such other currency at
11:00 a.m., London time, on the date on or as of which such amount is to
be determined.


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


                    “ERISA
Affiliate” means any trade or business (whether or not incorporated) that,
together with the Company, is treated as a single employer under
Section 414(b) or (c) of the Code or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.


                    “ERISA
Event” means (a) any “reportable event”, as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to
a Plan (other than an event for which the 30-day notice period is waived);
(b) the failure to satisfy the “minimum funding standard” (as defined in 


9





Section 412 of the Code or Section 302 of ERISA), whether or
not waived; (c) the filing pursuant to Section 412(c) of the Code or
Section 302(c) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan; (d) the incurrence by the
Company or any of its ERISA Affiliates of any liability under Title IV of
ERISA with respect to the termination of any Plan; (e) the receipt by the
Company or any ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Plan or Plans or to appoint a
trustee to administer any Plan; (f) the incurrence by the Company or any
of its ERISA Affiliates of any liability with respect to the withdrawal or
partial withdrawal of the Company or any of its ERISA Affiliates from any Plan
or Multiemployer Plan; or (g) the receipt by the Company or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Company or any ERISA Affiliate of any notice, concerning the imposition upon
the Company or any of its ERISA Affiliates of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA.


                    “euro”
and/or “EUR” means the single currency of the Participating Member
States.


                    “Eurocurrency”,
when used in reference to a currency means an Agreed Currency and when used in
reference to any Loan or Borrowing, means that such Loan, or the Loans
comprising such Borrowing, bears interest at a rate determined by reference to
the Adjusted LIBO Rate.


                    “Eurocurrency
Payment Office” of the Administrative Agent shall mean, for each Foreign
Currency, the office, branch, affiliate or correspondent bank of the
Administrative Agent for such currency as specified from time to time by the
Administrative Agent to the Company and each Lender.


                    “Event
of Default” has the meaning assigned to such term in Article VII.


                    
“Exchange Rate” means, on any day, with respect to any Foreign Currency,
the rate at which such Foreign Currency may be exchanged into Dollars, as set
forth at approximately 11:00 a.m., Local Time, on such date on the Reuters
World Currency Page for such Foreign Currency. In the event that such rate does
not appear on any Reuters World Currency Page, the Exchange Rate with respect
to such Foreign Currency shall be determined by reference to such other
publicly available service for displaying exchange rates as may be reasonably
selected by the Administrative Agent or, in the event no such service is
selected, such Exchange Rate shall instead be calculated on the basis of the
arithmetical mean of the buy and sell spot rates of exchange of the
Administrative Agent for such Foreign Currency on the London market at
11:00 a.m., Local Time, on such date for the purchase of Dollars with such
Foreign Currency, for delivery two Business Days later; provided, that
if at the time of any such determination, for any reason, no such spot rate is
being quoted, the Administrative Agent, after consultation with the Company,
may use any reasonable method it deems appropriate to determine such rate, and
such determination shall be conclusive absent manifest error.


                    “Excluded
Swap Obligation” means, with respect to any Loan Party, any Specified Swap
Obligation if, and to the extent that, all or a portion of the Guarantee of
such Loan Party of, or the grant by such Loan Party of a security interest to
secure, such Specified Swap Obligation (or any Guarantee thereof) is or becomes
illegal under the Commodity Exchange Act or any rule, regulation or order of
the Commodity Futures Trading Commission (or the application or official
interpretation of any thereof) by virtue of such Loan Party’s failure for any
reason to constitute an ECP at the time the Guarantee of such Loan Party or the
grant of such security interest becomes effective with respect to such
Specified Swap Obligation. If a Specified Swap Obligation arises under a master
agreement governing more than one swap, such exclusion shall apply only to the
portion of such Specified Swap Obligation that is attributable to swaps for
which such Guarantee or security interest is or becomes illegal.


10





                    “Excluded
Taxes” means any of the following Taxes imposed on or with respect to a
Recipient or required to be withheld or deducted from a payment to a Recipient,
(a) Taxes imposed on or measured by net income (however denominated),
franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a
result of such Recipient being organized under the laws of, or having its
principal office or, in the case of any Lender, its applicable lending office
located in, the jurisdiction imposing such Tax (or any political subdivision thereof)
or (ii) that are Other Connection Taxes, (b) in the case of a Lender,
U.S. Federal withholding Taxes imposed on amounts payable to or for the
account of such Lender with respect to an applicable interest in a Loan or
Commitment pursuant to a law in effect on the date on which (i) such
Lender acquires such interest in the Loan or Commitment (other than pursuant to
an assignment request by any Borrower under Section 2.19(b)) or
(ii) such Lender changes its lending office, except in each case to the extent
that, pursuant to Section 2.17, amounts with respect to such Taxes were
payable either to such Lender’s assignor immediately before such Lender
acquired the applicable interest in a Loan or Commitment or to such Lender
immediately before it changed its lending office, (c) Taxes attributable
to such Recipient’s failure to comply with Section 2.17(f) and
(d) any U.S. Federal withholding Taxes imposed under FATCA.


                    “Existing
Credit Agreement” means that certain Credit Agreement dated as of September
28, 2012 by and among the Company, the foreign subsidiary borrowers party
thereto, the lenders party thereto and JPMorgan Chase Bank, N.A., as
administrative agent, as amended, restated, supplemented or otherwise modified
prior to the Effective Date.


                    “Existing
Letters of Credit” is defined in Section 2.06(a).


                    
“FATCA” means Sections 1471 through 1474 of the Code, as of the
date of this Agreement (or any amended or successor version that is
substantively comparable and not materially more onerous to comply with), any
current or future regulations or official interpretations thereof and any
agreement entered into pursuant to Section 1471(b)(1) of the Code.


                    “Federal
Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day that is a Business Day, the average (rounded upwards, if necessary, to
the next 1/100 of 1%) of the quotations for such day for such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.


                    “Financial
Officer” means the chief financial officer, principal accounting officer,
treasurer or controller of the Company.


                    “Financials”
means the annual or quarterly financial statements, and accompanying
certificates and other documents, of the Company and its Subsidiaries required
to be delivered pursuant to Section 5.01(a) or 5.01(b).


                    “Foreign
Currencies” means Agreed Currencies other than Dollars.


                    “Foreign
Currency LC Exposure” means, at any time, the sum of (a) the Dollar
Amount of the aggregate undrawn and unexpired amount of all outstanding Foreign
Currency Letters of Credit at such time plus (b) the aggregate principal
Dollar Amount of all LC Disbursements in respect of Foreign Currency Letters of
Credit that have not yet been reimbursed at such time.


11





                    “Foreign
Currency Letter of Credit” means a Letter of Credit denominated in a
Foreign Currency.


                    “Foreign
Lender” means (a) if the applicable Borrower is a U.S. Person, a
Lender, with respect to such Borrower, that is not a U.S. Person, and
(b) if the applicable Borrower is not a U.S. Person, a Lender, with
respect to such Borrower, that is resident or organized under the laws of a
jurisdiction other than that in which such Borrower is resident for tax
purposes.


                    “Foreign
Subsidiary” means any Subsidiary which is not a Domestic Subsidiary.


                    “Foreign
Subsidiary Borrower” means any Eligible Foreign Subsidiary that has become
a Foreign Subsidiary Borrower pursuant to Section 2.23 and that has not
ceased to be a Foreign Subsidiary Borrower pursuant to such Section.


                    “Foreign
Subsidiary Borrower Sublimit” means $75,000,000.


                    “GAAP”
means generally accepted accounting principles in the United States of America.


                    “Governmental
Authority” means the government of the United States of America, any other
nation or any political subdivision thereof, whether state or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.


                    “Guarantee”
of or by any Person (the “guarantor”) means any obligation, contingent
or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any
obligation of the guarantor, direct or indirect, (a) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Indebtedness
or other obligation or to purchase (or to advance or supply funds for the
purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to
maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account
party in respect of any letter of credit or letter of guaranty issued to
support such Indebtedness or obligation; provided, that the term
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business.


                    
“Hazardous Materials” means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.


                    “Hostile
Acquisition” means (a) the acquisition of the Equity Interests of a
Person through a tender offer or similar solicitation of the owners of such
Equity Interests which has not been approved (prior to such acquisition) by the
board of directors (or any other applicable governing body) of such Person or
by similar action if such Person is not a corporation and (b) any such
acquisition as to which such approval has been withdrawn.


                    “Impacted
Interest Period” has the meaning assigned to such term in the definition of
“LIBO Rate”.


12





                    “Increasing
Lender” has the meaning assigned to such term in Section 2.20.


                    “Incremental
Term Loan” has the meaning assigned to such term in Section 2.20.


                    “Incremental
Term Loan Amendment” has the meaning assigned to such term in
Section 2.20.


                    “Indebtedness”
of any Person means, without duplication, (a) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind,
(b) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments, (c) all obligations of such Person upon which
interest charges are customarily paid, (d) all obligations of such Person
under conditional sale or other title retention agreements relating to property
acquired by such Person, (e) all obligations of such Person in respect of
the deferred purchase price of property or services (excluding current accounts
payable incurred in the ordinary course of business), (f) all Indebtedness
of others secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on property
owned or acquired by such Person, whether or not the Indebtedness secured
thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person,
(i) all obligations, contingent or otherwise, of such Person as an account
party in respect of letters of credit and letters of guaranty, (j) all
obligations, contingent or otherwise, of such Person in respect of bankers’
acceptances and (k) obligations of such Person under Sale and Leaseback
Transactions (other than such obligations constituting operating lease obligations).
The Indebtedness of any Person shall include the Indebtedness of any other
entity (including any partnership in which such Person is a general partner) to
the extent such Person is liable therefor as a result of such Person’s
ownership interest in or other relationship with such entity, except to the
extent the terms of such Indebtedness provide that such Person is not liable
therefor.


                    “Indemnified
Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with
respect to any payment made by or on account of any obligation of any Loan
Party under any Loan Document and (b) to the extent not otherwise
described in clause (a), Other Taxes.


                    “Ineligible
Institution” has the meaning assigned to such term in Section 9.04(b).


                    “Information
Memorandum” means the Confidential Information Memorandum dated September,
2014 relating to the Company and the Transactions.


                    “Interest
Coverage Ratio” has the meaning assigned to such term in
Section 6.11(b).


                    “Interest
Election Request” means a request by the applicable Borrower to convert or
continue a Revolving Borrowing in accordance with Section 2.08 in the form
attached hereto as Exhibit J-2.


                    “Interest
Payment Date” means (a) with respect to any ABR Loan (other than a
Swingline Loan), the last day of each March, June, September and December and
the Maturity Date, (b) with respect to any Eurocurrency Loan, the last day
of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurocurrency Borrowing with an Interest Period of more
than three months’ duration, each day prior to the last day of such Interest
Period that occurs at intervals of three months’ duration after the first day
of such Interest Period and the Maturity Date and (c) with respect to any
Swingline Loan, the day that such Loan is required to be repaid and the
Maturity Date.


                    “Interest Period” means
with respect to any Eurocurrency Borrowing, the period commencing on the date
of such Borrowing and ending on the numerically corresponding day in the 


13





calendar month that is one, two, three or six months thereafter, as the
applicable Borrower (or the Company on behalf of the applicable Borrower) may
elect; provided, that (i) if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period that commences on
the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Borrowing initially shall
be the date on which such Borrowing is made and, in the case of a Revolving
Borrowing, thereafter shall be the effective date of the most recent conversion
or continuation of such Borrowing.


                    “Interpolated
Rate” means, at any time, the rate per annum determined by the
Administrative Agent (which determination shall be conclusive and binding
absent manifest error) to be equal to the rate that results from interpolating
on a linear basis between: (a) the applicable Screen Rate for the longest
period (for which the applicable Screen Rate is available for the applicable
currency) that is shorter than the Impacted Interest Period and (b) the
applicable Screen Rate for the shortest period (for which the applicable Screen
Rate is available for the applicable currency) that exceeds the Impacted
Interest Period, in each case, at such time.


                    “IRS”
means the United States Internal Revenue Service.


                    “Issuing
Bank” means, as the context may require, (a) JPMorgan Chase Bank,
N.A., with respect to Letters of Credit issued by it, or (b) any other
Lender selected by the Company and approved by the Administrative Agent (which
consent shall not be unreasonably withheld, delayed or conditioned) which
agrees to act as an Issuing Bank hereunder, with respect to Letters of Credit
issued by it, and in each case in its capacity as an issuer of Letters of
Credit hereunder, and its successors in such capacity as provided in
Section 2.06(i). Each Issuing Bank may, in its discretion, arrange for one
or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in
which case the term “Issuing Bank” shall include any such Affiliate with
respect to Letters of Credit issued by such Affiliate.


                    “Japanese
Yen” or “¥” means the lawful currency of Japan.


                    “LC
Disbursement” means a payment made by an Issuing Bank pursuant to a Letter
of Credit.


                    “LC
Exposure” means, at any time, the sum of (a) the aggregate undrawn
Dollar Amount of all outstanding Letters of Credit at such time plus
(b) the aggregate Dollar Amount of all LC Disbursements that have not yet
been reimbursed by or on behalf of the Company at such time. The LC Exposure of
any Lender at any time shall be its Applicable Percentage of the total LC
Exposure at such time.


                    “Lenders”
means the Persons listed on Schedule 2.01 and any other Person that
shall have become a Lender hereunder pursuant to Section 2.20 or pursuant
to an Assignment and Assumption, other than any such Person that ceases to be a
party hereto pursuant to an Assignment and Assumption. Unless the context
otherwise requires, the term “Lenders” includes the Swingline Lender and each
Issuing Bank.


                    “Letter
of Credit” means any letter of credit issued pursuant to this Agreement.


                    “Leverage
Ratio” has the meaning assigned to such term in Section 6.11(a).


14





                    “LIBO
Rate” means, with respect to (a) any Eurocurrency Borrowing denominated in
any LIBOR Quoted Currency and for any applicable Interest Period, the London
interbank offered rate administered by ICE Benchmark Administration (or any
other Person that takes over the administration of such rate) for such Agreed
Currency for a period equal in length to such Interest Period as displayed on
pages LIBOR01 or LIBOR02 of the Reuters screen or, in the event such rate does
not appear on either of such Reuters pages, on any successor or substitute page
on such screen that displays such rate, or on the appropriate page of such
other information service that publishes such rate as shall be selected by the
Administrative Agent from time to time in its reasonable discretion (in each
case the “LIBOR Screen Rate”) at approximately 11:00 a.m., London time,
on the Quotation Day for such currency and Interest Period; provided
that, if the LIBOR Screen Rate shall be less than zero, such rate shall be
deemed to be zero for purposes of this Agreement and (b) any Eurocurrency
Borrowing denominated in any Non-Quoted Currency and for any applicable
Interest Period, the applicable Local Screen Rate for such Non-Quoted Currency
on the Quotation Day for such currency and Interest Period; provided
that, if any Local Screen Rate shall be less than zero, such rate shall be
deemed to be zero for purposes of this Agreement; provided, further,
that if a LIBOR Screen Rate or a Local Screen Rate, as applicable, shall not be
available at such time for such Interest Period (the “Impacted Interest
Period”), then the LIBOR Screen Rate or Local Screen Rate, as applicable,
for such currency and such Interest Period shall be the Interpolated Rate; provided,
that, if any Interpolated Rate shall be less than zero, such rate shall be
deemed to be zero for purposes of this Agreement. It is understood and agreed
that all of the terms and conditions of this definition of “LIBO Rate” shall be
subject to Section 2.14.


                    “LIBOR
Quoted Currency” means Dollars, euro, Pounds Sterling, Swiss Francs and
Japanese Yen.


                    “LIBOR
Screen Rate” has the meaning assigned to such term in the definition of
“LIBO Rate”.


                    “Lien”
means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of
such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.


                    “Loan
Documents” means this Agreement, each Borrowing Subsidiary Agreement, each
Borrowing Subsidiary Termination, the Subsidiary Guaranty, any promissory notes
executed and delivered pursuant to Section 2.10(e) and any and all other
instruments and documents executed and delivered in connection with any of the
foregoing.


                    “Loan
Parties” means, collectively, the Borrowers and the Subsidiary Guarantors.


                    “Loans”
means the loans made by the Lenders to the Borrowers pursuant to this
Agreement.


                    “Local
Screen Rate” means the CDOR Screen Rate.


                    “Local
Time” means (i) Chicago time in the case of a Loan, Borrowing or LC
Disbursement denominated in Dollars and (ii) local time in the case of a
Loan, Borrowing or LC Disbursement denominated in a Foreign Currency (it being
understood that such local time shall mean London, England time unless otherwise
notified by the Administrative Agent).


15





                    “Material
Adverse Effect” means a material adverse effect on (a) the business,
assets, property, condition (financial or otherwise) or prospects of the
Company and the Subsidiaries taken as a whole or (b) the validity or
enforceability of this Agreement or any and all other Loan Documents or the
rights or remedies of the Administrative Agent and the Lenders thereunder.


                    
“Material Indebtedness” means any Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Swap Agreements,
of any one or more of the Company and its Subsidiaries in an aggregate
principal amount exceeding $10,000,000. For purposes of determining Material
Indebtedness, the “principal amount” of the obligations of the Company or any
Subsidiary in respect of any Swap Agreement at any time shall be the maximum
aggregate amount (giving effect to any netting agreements) that the Company or
such Subsidiary would be required to pay if such Swap Agreement were terminated
at such time.


                    “Material
Subsidiary” means each Subsidiary (i) which, as of the most recent
fiscal quarter of the Company, for the period of four consecutive fiscal
quarters then ended, for which financial statements have been delivered
pursuant to Section 5.01, contributed greater than ten percent
(10%) of the Company’s Consolidated EBITDA for such period or
(ii) which contributed greater than ten percent (10%) of Consolidated
Total Assets as of such date; provided that, if at any time the
aggregate amount of Consolidated EBITDA or Consolidated Total Assets
attributable to all Subsidiaries that are not Material Subsidiaries exceeds
twenty five percent (25%) of Consolidated EBITDA for any such period or
twenty five percent (25%) of Consolidated Total Assets as of the end of
any such fiscal quarter, the Company (or, in the event the Company has failed
to do so within ten days, the Administrative Agent) shall designate sufficient
Subsidiaries as “Material Subsidiaries” to eliminate such excess, and such
designated Subsidiaries shall for all purposes of this Agreement constitute
Material Subsidiaries.


                    “Maturity
Date” means September 24, 2019.


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


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


                    “New
Money Credit Event” means with respect to any Issuing Bank, any increase
(directly or indirectly) in such Issuing Bank’s exposure (whether by way of
additional credit or banking facilities or otherwise, including as part of a
restructuring) to any Borrower or any Governmental Authority in any Borrower’s
or any applicable Letter of Credit beneficiary’s country occurring by reason of
(i) any law, action or requirement of any Governmental Authority in such
Borrower’s or such Letter of Credit beneficiary’s country, or (ii) any
request in respect of external indebtedness of borrowers in such Borrower’s or
such Letter of Credit beneficiary’s country applicable to banks generally which
conduct business with such borrowers, or (iii) any agreement in relation
to clause (i) or (ii), in each case to the extent calculated by
reference to the aggregate Revolving Credit Exposures outstanding prior to such
increase.


                    “Non-LIBOR
Quoted Currency” means Canadian Dollars.


                    “Obligations”
means all indebtedness (including interest and fees accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding),
obligations and liabilities of any of the Loan Parties to any of the Lenders,
the Administrative Agent any Issuing Bank or any indemnified party,
individually or collectively, existing on the Effective Date or arising
thereafter, direct or indirect, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, secured or unsecured, arising
by 


16





contract, operation of law or otherwise, arising or incurred under this
Credit Agreement or any of the other Loan Documents or to the Lenders or any of
their Affiliates under any Swap Agreement or any Banking Services Agreement or
in respect of any of the Loans made or reimbursement or other obligations
incurred or any of the Letters of Credit or other instruments at any time
evidencing any thereof; provided that the definition of “Obligations”
shall not create or include any guarantee by any Loan Party of any Excluded
Swap Obligations of such Loan Party for purposes of determining any obligations
of any Loan Party.


                    “OFAC”
means the Office of Foreign Assets Control of the U.S. Department of Treasury.


                    “Other
Connection Taxes” means, with respect to any Recipient, Taxes imposed as a
result of a present or former connection between such Recipient and the
jurisdiction imposing such Tax (other than connections arising from such
Recipient having executed, delivered, become a party to, performed its
obligations under, received payments under, received or perfected a security
interest under, engaged in any other transaction pursuant to or enforced any
Loan Document, or sold or assigned an interest in any Loan or Loan Document).


                    “Other
Taxes” means all present or future stamp, court or documentary, intangible,
recording, filing or similar Taxes that arise from any payment made under, from
the execution, delivery, performance, enforcement or registration of, from the
receipt or perfection of a security interest under, or otherwise with respect
to, any Loan Document, except any such Taxes that are Other Connection Taxes
imposed with respect to an assignment (other than an assignment made pursuant
to Section 2.19).


                    “Overnight
Foreign Currency Rate” means, for any amount payable in a Foreign Currency,
the rate of interest per annum as determined by the Administrative Agent at
which overnight or weekend deposits in the relevant currency (or if such amount
due remains unpaid for more than three (3) Business Days, then for such
other period of time as the Administrative Agent may elect) for delivery in
immediately available and freely transferable funds would be offered by the
Administrative Agent to major banks in the interbank market upon request of
such major banks for the relevant currency as determined above and in an amount
comparable to the unpaid principal amount of the related Credit Event, plus any
taxes, levies, imposts, duties, deductions, charges or withholdings imposed
upon, or charged to, the Administrative Agent by any relevant correspondent
bank in respect of such amount in such relevant currency.


                    “Parent”
means, with respect to any Lender, any Person as to which such Lender is,
directly or indirectly, a subsidiary.


                    “Participant”
has the meaning set forth in Section 9.04.


                    “Participant
Register” has the meaning set forth in Section 9.04(c).


                    “Participating
Member State” means any member state of the European Union that adopts or
has adopted the euro as its lawful currency in accordance with legislation of
the European Union relating to economic and monetary union.


                    “PBGC”
means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.


                    “Permitted
Acquisition” means any acquisition (whether by purchase, merger,
consolidation or otherwise but excluding in any event a Hostile Acquisition) or
series of related acquisitions by the Company or any Subsidiary of (i) all
or substantially all the assets of a Person or 


17





division or line of business of a Person or (ii) all or
substantially all the Equity Interests in, a Person, if, at the time of and
immediately after giving effect thereto, (a) no Default has occurred and
is continuing or would arise after giving effect thereto, (b) such Person
or division or line of business is engaged in the same or a similar line of
business as the Company and the Subsidiaries or business reasonably related
thereto, (c) all actions required to be taken with respect to such
acquired or newly formed Subsidiary under Sections 5.09 shall have been
taken, (d) the Company and the Subsidiaries are in compliance, on a
pro forma basis reasonably acceptable to the Administrative Agent after
giving effect to such acquisition (but without giving effect to any synergies
or cost savings), with the covenants contained in Section 6.11 recomputed
as of the last day of the most recently ended fiscal quarter of the Company for
which financial statements are available, as if such acquisition (and any
related incurrence or repayment of Indebtedness, with any new Indebtedness
being deemed to be amortized over the applicable testing period in accordance
with its terms) had occurred on the first day of each relevant period for
testing such compliance and, if the aggregate consideration paid in respect of
such acquisition exceeds $30,000,000, the Company shall have delivered to the
Administrative Agent a certificate of a Financial Officer of the Company to
such effect, together with all relevant financial information, statements and
projections requested by the Administrative Agent and (e) in the case of
an acquisition or merger involving the Company or another Loan Party, the
Company or such Loan Party is the surviving entity of such merger and/or
consolidation.


                    “Permitted
Encumbrances” means:


	
  

 	
  

 
	
  

 	
           (a)     Liens imposed by law for Taxes that are not yet due or are being contested in
 compliance with Section 5.04;

 
	
  

 	
  

 
	
  

 	
           (b)     carriers’,
 warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens
 imposed by law, arising in the ordinary course of business and securing
 obligations that are not overdue by more than thirty (30) days or are
 being contested in compliance with Section 5.04;

 
	
  

 	
  

 
	
  

 	
           (c)    
 pledges and deposits made in the ordinary course of business in compliance
 with workers’ compensation, unemployment insurance and other social security
 laws or regulations;

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (e)      judgment
 Liens in respect of judgments that do not constitute an Event of Default
 under clause (k) of Article VII; and

 
	
  

 	
  

 
	
  

 	
           (f)     easements,
 zoning restrictions, rights-of-way and similar encumbrances on real property
 imposed by law or arising in the ordinary course of business that do not
 secure any monetary obligations and do not materially detract from the value
 of the affected property or interfere with the ordinary conduct of business
 of the Company or any Subsidiary;

 


provided that the term “Permitted
Encumbrances” shall not include any Lien securing Indebtedness.


                    “Permitted
Investments” means:


	
  

 	
  

 
	
  

 	
           (a)    direct
 obligations of, or obligations the principal of and interest on which are
 unconditionally guaranteed by, the United States of America (or by any agency
 thereof to the extent such obligations are backed by the full faith and
 credit of the United States of America), in each case maturing within one
 year from the date of acquisition thereof;

 


18









	
  

 	
  

 
	
  

 	
           (b)    investments
 in commercial paper maturing within 270 days from the date of
 acquisition thereof and having, at such date of acquisition, the highest
 credit rating obtainable from S&P or from Moody’s;

 
	
  

 	
  

 
	
  

 	
           (c)    investments
 in certificates of deposit, banker’s acceptances and time deposits maturing
 within 180 days from the date of acquisition thereof issued or
 guaranteed by or placed with, and money market deposit accounts issued or offered
 by, any domestic office of any commercial bank organized under the laws of
 the United States of America or any State thereof which has a combined
 capital and surplus and undivided profits of not less than $500,000,000;

 
	
  

 	
  

 
	
  

 	
           (d)    fully
 collateralized repurchase agreements with a term of not more than thirty
 (30) days for securities described in clause (a) above and entered
 into with a financial institution satisfying the criteria described in
 clause (c) above;

 
	
  

 	
  

 
	
  

 	
           (e)    money
 market funds that (i) comply with the criteria set forth in SEC
 Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated
 AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at
 least $5,000,000,000; and

 
	
  

 	
  

 
	
  

 	
           (f)     other
 investments made in accordance with the Company’s investment policy as
 disclosed to the Administrative Agent prior to the Effective Date and with
 such amendments or modifications thereto as are from time to time approved by
 the Administrative Agent.

 


                    “Person”
means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.


                    “Plan”
means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the
Code or Section 302 of ERISA, and in respect of which the Company or any
ERISA Affiliate is (or, if such plan were terminated, would under Section 4069
of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.


                    “Pounds
Sterling” or “£” means the lawful currency of the United Kingdom.


                    “Quotation
Day” means, with respect to any Eurocurrency Borrowing for any Interest
Period, (i) if the currency is Pounds Sterling or Canadian Dollars, the first
day of such Interest Period, (ii) if the currency is euro, the day that is two
(2) TARGET2 Days before the first day of such Interest Period, and (iii) for
any other currency, two (2) Business Days prior to the commencement of such
Interest Period (unless, in each case, market practice differs in the relevant
market where the LIBO Rate for such currency is to be determined, in which case
the Quotation Day will be determined by the Administrative Agent in accordance
with market practice in such market (and if quotations would normally be given
on more than one day, then the Quotation Day will be the last of those days)).


                    “Prime
Rate” means the rate of interest per annum publicly announced from time to
time by JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal
office in New York City; each change in the Prime Rate shall be effective from
and including the date such change is publicly announced as being effective.


                    “Recipient”
means, as applicable, (a) the Administrative Agent, (b) any Lender
and (c) any Issuing Bank.


                    “Reference
Bank Rate” means the arithmetic mean of the rates (rounded upwards to four
decimal places) supplied to the Administrative Agent at its request by the
Reference Banks (as the case 


19





may be) as of the applicable time on the Quotation Day for Loans in the
applicable currency and the applicable Interest Period as the rate at which the
relevant Reference Bank could borrow funds in the London (or other applicable)
interbank market in the relevant currency and for the relevant period, were it
to do so by asking for and then accepting interbank offers in reasonable market
size in that currency and for that period.


                    “Reference
Banks” means the principal London (or other applicable) offices of JPMorgan
Chase Bank, N.A. and such other banks as may be appointed by the Administrative
Agent in consultation with the Company. No Lender shall be obligated to be a
Reference Bank without its consent.


                    “Register”
has the meaning set forth in Section 9.04.


                    “Related
Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents and
advisors of such Person and such Person’s Affiliates.


                    “Required
Lenders” means, at any time, Lenders having Revolving Credit Exposures and
unused Commitments representing more than 50% of the sum of the total Revolving
Credit Exposures and unused Commitments at such time.


                    “Restricted
Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in the
Company or any Subsidiary, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any such Equity Interests in the Company or any option, warrant or other right
to acquire any such Equity Interests in the Company.


                    “Revolving
Borrowing” means a Borrowing comprised of Revolving Loans.


                    “Revolving
Credit Exposure” means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender’s Revolving Loans and its LC
Exposure and Swingline Exposure at such time.


                    “Revolving
Loan” means a Loan made pursuant to Section 2.01.


                    “S&P”
means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial
Services LLC business.


                    “Sale
and Leaseback Transaction” means any sale or other transfer of any property
or asset by any Person with the intent to lease such property or asset as
lessee.


                    “Sanctioned
Country” means, at any time, a country or territory which is itself the
subject or target of any Sanctions (at the time of this Agreement, Cuba, Iran,
North Korea, Sudan and Syria).


                    “Sanctioned
Person” means, at any time, (a) any Person listed in any Sanctions-related
list of designated Persons maintained by OFAC, the U.S. Department of State,
the United Nations Security Council, the European Union or any EU member state,
(b) any Person operating, organized or resident in a Sanctioned Country or (c)
any Person owned or controlled by any such Person or Persons.


                    “Sanctions”
means economic or financial sanctions or trade embargoes imposed, administered
or enforced from time to time by (a) the U.S. government, including those
administered by 


20





OFAC or the U.S. Department of State or (b) the United Nations Security
Council, the European Union or Her Majesty’s Treasury of the United Kingdom.


                    “Screen
Rates” means the LIBOR Screen Rate and the Local Screen Rate.


                    “SEC”
means the United States Securities and Exchange Commission.


                    “Specified
Swap Obligation” means, with respect to any Loan Party, any obligation to
pay or perform under any agreement, contract or transaction that constitutes a
“swap” within the meaning of Section 1a(47) of the Commodity Exchange Act or
any rules or regulations promulgated thereunder.


                    “Statutory
Reserve Rate” means, with respect to any currency, a fraction (expressed as
a decimal), the numerator of which is the number one and the denominator of
which is the number one minus the aggregate of the maximum reserve, liquid
asset, fees or similar requirements (including any marginal, special, emergency
or supplemental reserves or other requirements) established by any central
bank, monetary authority, the Board, the Financial Conduct Authority, the
Prudential Regulation Authority, the European Central Bank or other
Governmental Authority for any category of deposits or liabilities customarily
used to fund loans in such currency, expressed in the case of each such
requirement as a decimal. Such reserve, liquid asset, fees or similar requirements
shall include those imposed pursuant to Regulation D of the Board.
Eurocurrency Loans shall be deemed to be subject to such reserve, liquid asset,
fee or similar requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under any applicable law, rule or regulation, including Regulation D of
the Board. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve, liquid asset or similar
requirement.


                    “Subordinated
Indebtedness” means any Indebtedness of the Company or any Subsidiary the
payment of which is subordinated to payment of the obligations under the Loan
Documents.


                    “Subordinated
Indebtedness Documents” means any document, agreement or instrument
evidencing any Subordinated Indebtedness or entered into in connection with any
Subordinated Indebtedness.


                    “subsidiary”
means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent’s consolidated financial statements if such financial statements
were prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing
more than 50% of the equity or more than 50% of the ordinary voting power or,
in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is,
as of such date, otherwise Controlled, by the parent or one or more subsidiaries
of the parent or by the parent and one or more subsidiaries of the parent.


                    “Subsidiary”
means any subsidiary of the Company.


                    “Subsidiary
Guarantor” means each Material Subsidiary (other than Affected Foreign
Subsidiaries and Foreign Subsidiary Borrowers) that is a party to the
Subsidiary Guaranty. The Subsidiary Guarantors on the Effective Date are
identified as such in Schedule 3.01 hereto.


                    “Subsidiary
Guaranty” means that certain Guaranty dated as of the Effective Date in the
form of Exhibit G (including any and all supplements thereto) and
executed by each Subsidiary Guarantor party thereto, and, in the case of any
guaranty by a Foreign Subsidiary, any other guaranty agreements as 


21





are requested by the Administrative Agent and its counsel, in each case
as amended, restated, supplemented or otherwise modified from time to time. 


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


                    “Swingline
Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender
at any time shall be its Applicable Percentage of the total Swingline Exposure
at such time.


                    “Swingline
Lender” means JPMorgan Chase Bank, N.A., in its capacity as lender of
Swingline Loans hereunder.


                    “Swingline
Loan” means a Loan made pursuant to Section 2.05.


                    “Swiss
Francs” means the lawful currency of Switzerland.


                    “Syndication
Agent” means Wells Fargo Bank, National Association in its capacity as
syndication agent for the credit facility evidenced by this Agreement.


                    “TARGET2”
means the Trans-European Automated Real-time Gross Settlement Express Transfer
(TARGET2) payment system (or, if such payment system ceases to be operative,
such other payment system (if any) reasonably determined by the Administrative
Agent to be a suitable replacement) for the settlement of payments in euro.


                    “TARGET2
Day” means a day that TARGET2 is open for the settlement of payments in
euro.


                    “Taxes”
means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges
imposed by any Governmental Authority, including any interest, additions to tax
or penalties applicable thereto.


                    “Transactions”
means the execution, delivery and performance by the Loan Parties of this
Agreement and the other Loan Documents, the borrowing of Loans and other credit
extensions, the use of the proceeds thereof and the issuance of Letters of
Credit hereunder.


                    “Type”,
when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined
by reference to the Adjusted LIBO Rate or the Alternate Base Rate.


                    “U.S.
Person” means a “United States person” within the meaning of
Section 7701(a)(30) of the Code.


                    “U.S.
Tax Compliance Certificate” has the meaning assigned to such term in
Section 2.17(f)(ii)(B)(3).


22





                    “Withdrawal
Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.


                    “Withholding
Agent” means any Loan Party or the Administrative Agent.


                    SECTION
1.02. Classification of Loans and Borrowings. 
For purposes of this Agreement, Loans may be classified and referred to by
Class (e.g., a “Revolving Loan”) or by Type (e.g., a
“Eurocurrency Loan”) or by Class and Type (e.g., a “Eurocurrency
Revolving Loan”). Borrowings also may be classified and referred to by Class (e.g.,
a “Revolving Borrowing”) or by Type (e.g., a “Eurocurrency Borrowing”)
or by Class and Type (e.g., a “Eurocurrency Revolving Borrowing”).


                    SECTION
1.03. Terms Generally. The definitions of terms
herein shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase
“without limitation”. The word “will” shall be construed to have the same meaning
and effect as the word “shall”. The word “law” shall be construed as referring
to all statutes, rules, regulations, codes and other laws (including official
rulings and interpretations thereunder having the force of law or with which
affected Persons customarily comply), and all judgments, orders and decrees, of
all Governmental Authorities. Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument
or other document as from time to time amended, restated, supplemented or
otherwise modified (subject to any restrictions on such amendments,
restatements, supplements or modifications set forth herein), (b) any
definition of or reference to any statute, rule or regulation shall be
construed as referring thereto as from time to time amended, supplemented or
otherwise modified (including by succession of comparable successor laws),
(c) any reference herein to any Person shall be construed to include such
Person’s successors and assigns (subject to any restrictions on assignment set
forth herein) and, in the case of any Governmental Authority, any other
Governmental Authority that shall have succeeded to any or all functions
thereof, (d) the words “herein”, “hereof” and “hereunder”, and words of
similar import, shall be construed to refer to this Agreement in its entirety
and not to any particular provision hereof, (e) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, this Agreement and
(f) the words “asset” and “property” shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets
and properties, including cash, securities, accounts and contract rights.


                    SECTION
1.04. Accounting Terms; GAAP. Except as
otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to
time; provided that, if the Company notifies the Administrative Agent
that the Company requests an amendment to any provision hereof to eliminate the
effect of any change occurring after the date hereof in GAAP or in the
application thereof on the operation of such provision (or if the
Administrative Agent notifies the Company that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith. Notwithstanding any other provision contained herein, all
terms of an accounting or financial nature used herein shall be construed, and
all computations of amounts and ratios referred to herein shall be made
(i) without giving effect to any election under Accounting Standards
Codification 825-10-25 (or any other Accounting Standards Codification or
Financial Accounting Standard having a similar result or effect) to value any
Indebtedness or other liabilities of the Company or any Subsidiary at “fair
value”, as defined therein and 


23





(ii) without
giving effect to any treatment of Indebtedness in respect of convertible debt
instruments under Accounting Standards Codification 470-20 (or any other
Accounting Standards Codification or Financial Accounting Standard having a
similar result or effect) to value any such Indebtedness in a reduced or
bifurcated manner as described therein, and such Indebtedness shall at all
times be valued at the full stated principal amount thereof.


ARTICLE II


The Credits


                    SECTION
2.01. Commitments. Subject to the terms and
conditions set forth herein, each Lender (severally and not jointly) agrees to
make Revolving Loans to the Borrowers in Agreed Currencies from time to time
during the Availability Period in an aggregate principal amount that will not
result in (a) subject to Sections 2.04 and 2.11(b), the Dollar Amount
of such Lender’s Revolving Credit Exposure exceeding such Lender’s Commitment,
(b) subject to Sections 2.04 and 2.11(b), the sum of the Dollar
Amount of the total Revolving Credit Exposures exceeding the Aggregate
Commitment or (c) subject to Sections 2.04 and 2.11(b), the Dollar
Amount of the total outstanding Revolving Loans and LC Exposure in respect of
the Foreign Subsidiary Borrowers exceeding the Foreign Subsidiary Borrower
Sublimit. Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrowers may borrow, prepay and reborrow Revolving
Loans.


                    SECTION
2.02. Loans and Borrowings. (a) Each Revolving Loan
(other than a Swingline Loan) shall be made as part of a Borrowing consisting
of Revolving Loans made by the Lenders ratably in accordance with their
respective Commitments. The failure of any Lender to make any Loan required to
be made by it shall not relieve any other Lender of its obligations hereunder; provided
that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender’s failure to make Loans as required. Any
Swingline Loan shall be made in accordance with the procedures set forth in
Section 2.05.


                    (b)
Subject to Section 2.14, each Revolving Borrowing shall be comprised
entirely of ABR Loans or Eurocurrency Loans as the relevant Borrower may
request in accordance herewith; provided that each ABR Loan shall only
be made in Dollars. Each Swingline Loan shall be an ABR Loan. Each Lender at
its option may make any Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan (and in the case of an Affiliate,
the provisions of Sections 2.14, 2.15, 2.16 and 2.17 shall apply to such
Affiliate to the same extent as to such Lender); provided that any
exercise of such option shall not affect the obligation of the relevant
Borrower to repay such Loan in accordance with the terms of this Agreement.


                    (c)
At the commencement of each Interest Period for any Eurocurrency Revolving
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $500,000 (or, if such Borrowing is denominated in (i) Japanese
Yen, ¥50,000,000 and (ii) a Foreign Currency other than Japanese Yen,
500,000 units of such currency) and not less than $1,000,000 (or, if such
Borrowing is denominated in (i) Japanese Yen, ¥100,000,000 and (ii) a
Foreign Currency other than Japanese Yen, 1,000,000 units of such currency). At
the time that each ABR Revolving Borrowing is made, such Borrowing shall be in
an aggregate amount that is an integral multiple of $250,000 and not less than
$1,000,000; provided that an ABR Revolving Borrowing may be in an
aggregate amount that is equal to the entire unused balance of the Aggregate
Commitment or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.06(e). Each Swingline Loan shall
be in an amount that is an integral multiple of $100,000 and not less than
$500,000. Borrowings of more than one Type and Class may be outstanding at the
same time; provided that there shall not at any time be more than a
total of five (5) Eurocurrency Revolving Borrowings outstanding.


24





                    (d)
 Notwithstanding any other provision of this Agreement, no Borrower shall
be entitled to request, or to elect to convert or continue, any Borrowing if
the Interest Period requested with respect thereto would end after the Maturity
Date.


                    SECTION
2.03. Requests for Revolving Borrowings. To
request a Revolving Borrowing, the applicable Borrower, or the Company on
behalf of the applicable Borrower, shall notify the Administrative Agent of
such request (a) by irrevocable written notice (via a written Borrowing
Request signed by the applicable Borrower, or the Company on behalf of the
applicable Borrower, promptly followed by telephonic confirmation of such
request) in the case of a Eurocurrency Borrowing, not later than
11:00 a.m., Local Time, three (3) Business Days (in the case of a
Eurocurrency Borrowing denominated in Dollars) or by irrevocable written notice
(via a written Borrowing Request signed by such Borrower, or the Company on its
behalf) not later than 11:00 a.m., Local Time, four (4) Business Days (in
the case of a Eurocurrency Borrowing denominated in a Foreign Currency), in
each case before the date of the proposed Borrowing or (b) by telephone in
the case of an ABR Borrowing, not later than 11:00 a.m., Chicago time, one
(1) Business Day before the date of the proposed Borrowing; provided
that any such notice of an ABR Revolving Borrowing to finance the reimbursement
of an LC Disbursement as contemplated by Section 2.06(e) may be given not
later than 10:00 a.m., Chicago time, on the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and
shall be confirmed promptly by hand delivery or telecopy to the Administrative
Agent of a written Borrowing Request signed by the applicable Borrower, or the
Company on behalf of the applicable Borrower. Each such telephonic and written
Borrowing Request shall specify the following information in compliance with
Section 2.02:


	
  

 	
  

 
	
  

 	
           (i)     the
 name of the applicable Borrower;

 
	
  

 	
  

 
	
  

 	
           (ii)    the
 aggregate amount of the requested Borrowing;

 
	
  

 	
  

 
	
  

 	
           (iii)   the
 date of such Borrowing, which shall be a Business Day;

 
	
  

 	
  

 
	
  

 	
           (iv)   whether
 such Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;

 
	
  

 	
  

 
	
  

 	
           (v)    in the
 case of a Eurocurrency Borrowing, the Agreed Currency and initial Interest
 Period to be applicable thereto, which shall be a period contemplated by the
 definition of the term “Interest Period”; and

 
	
  

 	
  

 
	
  

 	
           (vi)   the
 location and number of the applicable Borrower’s account to which funds are
 to be disbursed, which shall comply with the requirements of
 Section 2.07.

 


If no election as to the Type of Revolving Borrowing is specified,
then, in the case of a Borrowing denominated in Dollars, the requested
Revolving Borrowing shall be an ABR Borrowing. If no Interest Period is
specified with respect to any requested Eurocurrency Revolving Borrowing, then
the relevant Borrower shall be deemed to have selected an Interest Period of
one month’s duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender
of the details thereof and of the amount of such Lender’s Loan to be made as
part of the requested Borrowing.


                    SECTION
2.04. Determination of Dollar Amounts. The
Administrative Agent will determine the Dollar Amount of:


25









	
  

 	
  

 
	
  

 	
           (a)    each
 Eurocurrency Borrowing as of the date two (2) Business Days prior to the
 date of such Borrowing or, if applicable, the date of conversion/continuation
 of any Borrowing as a Eurocurrency Borrowing,

 
	
  

 	
  

 
	
  

 	
           (b)    the LC
 Exposure as of the date of each request for the issuance, amendment, renewal
 or extension of any Letter of Credit, and

 
	
  

 	
  

 
	
  

 	
           (c)    all
 outstanding Credit Events on and as of the last Business Day of each calendar
 quarter and, during the continuation of an Event of Default, on any other
 Business Day elected by the Administrative Agent in its discretion or upon
 instruction by the Required Lenders.

 


Each day upon or as of which the Administrative Agent determines Dollar
Amounts as described in the preceding clauses (a), (b) and
(c) is herein described as a “Computation Date” with respect to each
Credit Event for which a Dollar Amount is determined on or as of such day.


                    SECTION
2.05. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline
Loans in Dollars to the Company from time to time during the Availability
Period, in an aggregate principal amount at any time outstanding that will not
result in (i) the aggregate principal amount of outstanding Swingline
Loans exceeding $50,000,000 or (ii) the Dollar Amount of the total
Revolving Credit Exposures exceeding the Aggregate Commitment; provided
that the Swingline Lender shall not be required to make a Swingline Loan to
refinance an outstanding Swingline Loan. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Company may borrow,
prepay and reborrow Swingline Loans. 


                    (b)
To request a Swingline Loan, the Company shall notify the Administrative Agent
of such request by telephone (confirmed by telecopy), not later than 12:00
noon, Chicago time, on the day of a proposed Swingline Loan. Each such notice
shall be irrevocable and shall specify the requested date (which shall be a
Business Day) and amount of the requested Swingline Loan. The Administrative
Agent will promptly advise the Swingline Lender of any such notice received
from the Company. The Swingline Lender shall make each Swingline Loan available
to the Company by means of a credit to the general deposit account of the Company
with the Swingline Lender (or, in the case of a Swingline Loan made to finance
the reimbursement of an LC Disbursement as provided in Section 2.06(e), by
remittance to the relevant Issuing Bank) by 3:00 p.m., Chicago time, on
the requested date of such Swingline Loan.


                    (c)
The Swingline Lender may by written notice given to the Administrative Agent
not later than 10:00 a.m., Chicago time, on any Business Day require the
Lenders to acquire participations on such Business Day in all or a portion of
the Swingline Loans outstanding. Such notice shall specify the aggregate amount
of Swingline Loans in which Lenders will participate. Promptly upon receipt of
such notice, the Administrative Agent will give notice thereof to each Lender,
specifying in such notice such Lender’s Applicable Percentage of such Swingline
Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon
receipt of notice as provided above, to pay to the Administrative Agent, for
the account of the Swingline Lender, such Lender’s Applicable Percentage of
such Swingline Loan or Loans. Each Lender acknowledges and agrees that its
obligation to acquire participations in Swingline Loans pursuant to this
paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever. Each Lender shall comply with its obligation under this paragraph
by wire transfer of immediately available funds, in the same manner as provided
in Section 2.07 with respect to Loans made by such Lender (and
Section 2.07 shall apply, mutatis mutandis, to the payment
obligations of the Lenders), and the Administrative Agent shall promptly pay to
the Swingline Lender the amounts so received by it from the Lenders. The
Administrative Agent shall notify 


26





the Company of any participations in any Swingline Loan acquired
pursuant to this paragraph, and thereafter payments in respect of such
Swingline Loan shall be made to the Administrative Agent and not to the
Swingline Lender. Any amounts received by the Swingline Lender from the Company
(or other party on behalf of the Company) in respect of a Swingline Loan after
receipt by the Swingline Lender of the proceeds of a sale of participations
therein shall be promptly remitted to the Administrative Agent; any such
amounts received by the Administrative Agent shall be promptly remitted by the
Administrative Agent to the Lenders that shall have made their payments
pursuant to this paragraph and to the Swingline Lender, as their interests may
appear; provided that any such payment so remitted shall be repaid to
the Swingline Lender or to the Administrative Agent, as applicable, if and to
the extent such payment is required to be refunded to the Company for any
reason. The purchase of participations in a Swingline Loan pursuant to this
paragraph shall not relieve the Company of any default in the payment thereof.


                    SECTION
2.06. Letters of Credit. (a) General.
Subject to the terms and conditions set forth herein, the Company may request
the issuance of Letters of Credit denominated in Agreed Currencies as the
applicant thereof for the support of its or its Subsidiaries’ obligations, in a
form reasonably acceptable to the Administrative Agent and the relevant Issuing
Bank, at any time and from time to time during the Availability Period.
Notwithstanding the foregoing, the letters of credit identified on Schedule
2.06 (the “Existing Letters of Credit”) shall be deemed to be
“Letters of Credit” issued on the Effective Date for all purposes of the Loan
Documents. In the event of any inconsistency between the terms and conditions
of this Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by the Company to, or entered into by
the Company with, the relevant Issuing Bank relating to any Letter of Credit, the
terms and conditions of this Agreement shall control; provided, however,
if such Issuing Bank is requested to issue Letters of Credit with respect to a
jurisdiction such Issuing Bank deems, in its reasonable judgment, may at any
time subject it to a New Money Credit Event or a Country Risk Event, the
Company shall, at the request of such Issuing Bank, guaranty and indemnify such
Issuing Bank against any and all costs, liabilities and losses resulting from
such New Money Credit Event or Country Risk Event, in each case in a form and
substance reasonably satisfactory to such Issuing Bank. The Company
unconditionally and irrevocably agrees that, in connection with any Letter of
Credit issued for the support of any Subsidiary’s obligations as provided in
the first sentence of this paragraph, the Company will be fully responsible for
the reimbursement of LC Disbursements in accordance with the terms hereof, the
payment of interest thereon and the payment of fees due under
Section 2.12(b) to the same extent as if it were the sole account party in
respect of such Letter of Credit (the Company hereby irrevocably waiving any
defenses that might otherwise be available to it as a guarantor or surety of
the obligations of such a Subsidiary that is an account party in respect of any
such Letter of Credit).


                    (b) Notice
of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of
an outstanding Letter of Credit), the Company shall hand deliver or telecopy
(or transmit by electronic communication, if arrangements for doing so have
been approved by the relevant Issuing Bank) to an Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter
of Credit, or identifying the Letter of Credit to be amended, renewed or
extended, and specifying the date of issuance, amendment, renewal or extension
(which shall be a Business Day), the date on which such Letter of Credit is to
expire (which shall comply with paragraph (c) of this Section), the amount
of such Letter of Credit, the Agreed Currency applicable thereto, the name and
address of the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of Credit. If
requested by such Issuing Bank, the Company also shall submit a letter of
credit application on such Issuing Bank’s standard form in connection with any
request for a Letter of Credit. A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or extension
of each Letter of Credit the Company shall be deemed to represent and warrant
that), after giving effect to such issuance, amendment, 


27






renewal or extension (i) subject to Sections 2.04 and
2.11(b), the Dollar Amount of the LC Exposure shall not exceed $50,000,000,
(ii) subject to Sections 2.04 and 2.11(b), the sum of the Dollar Amount of
the total Revolving Credit Exposures shall not exceed the Aggregate Commitment
and (iii) subject to Sections 2.04 and 2.11(b), the sum of the Dollar
Amount of the total outstanding Revolving Loans and LC Exposure, in each case
in respect of the Foreign Subsidiary Borrowers, shall not exceed the Foreign
Subsidiary Borrower Sublimit.


                    (c)
Expiration Date. Each Letter of Credit shall expire (or be subject to
termination by notice from the relevant Issuing Bank to the beneficiary
thereof) at or prior to the close of business on the earlier of (i) the
date two years after the date of the issuance of such Letter of Credit (or, in
the case of any renewal or extension thereof, one year after such renewal or
extension) and (ii) the date that is five (5) Business Days prior to
the Maturity Date.


                    (d)
Participations. By the issuance of a Letter of Credit (or an amendment
to a Letter of Credit increasing the amount thereof) and without any further
action on the part of any Issuing Bank or the Lenders, each Issuing Bank hereby
grants to each Lender, and each Lender hereby acquires from each Issuing Bank,
a participation in such Letter of Credit equal to such Lender’s Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Lender
hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, for the account of the relevant Issuing Bank, such Lender’s Applicable
Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed
by the Company on the date due as provided in paragraph (e) of this
Section, or of any reimbursement payment required to be refunded to the Company
for any reason. Each Lender acknowledges and agrees that its obligation to
acquire participations pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.


                    (e)
Reimbursement. If any Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, the Company shall reimburse such LC Disbursement
by paying to the Administrative Agent in Dollars the Dollar Amount equal to
such LC Disbursement, calculated as of the date such Issuing Bank made such LC
Disbursement (or if such Issuing Bank shall so elect in its sole discretion by
notice to the Company, in such other Agreed Currency which was paid by such
Issuing Bank pursuant to such LC Disbursement in an amount equal to such LC
Disbursement) not later than 12:00 noon, Local Time, on the date that such LC
Disbursement is made, if the Company shall have received notice of such LC
Disbursement prior to 10:00 a.m., Local Time, on such date, or, if such
notice has not been received by the Company prior to such time on such date,
then not later than 12:00 noon, Local Time, on (i) the Business Day that
the Company receives such notice, if such notice is received prior to
10:00 a.m., Local Time, on the day of receipt, or (ii) the Business
Day immediately following the day that the Company receives such notice, if
such notice is not received prior to such time on the day of receipt; provided
that, if such LC Disbursement is not less than the Dollar Amount of $1,000,000,
the Company may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.03 or 2.05 that such payment be
financed with (i) to the extent such LC Disbursement was made in Dollars,
an ABR Revolving Borrowing, Eurocurrency Revolving Borrowing or Swingline Loan
in Dollars in an amount equal to such LC Disbursement or (ii) to the
extent that such LC Disbursement was made in a Foreign Currency, a Eurocurrency
Revolving Borrowing in such Foreign Currency in an amount equal to such LC
Disbursement and, in each case, to the extent so financed, the Company’s
obligation to make such payment shall be discharged and replaced by the
resulting ABR Revolving Borrowing, Eurocurrency Revolving Borrowing or
Swingline Loan, as applicable. If the Company fails to make such payment when
due, the Administrative Agent shall notify each Lender of the applicable LC
Disbursement, the 


28





payment then due from the Company in respect thereof and such Lender’s
Applicable Percentage thereof. Promptly following receipt of such notice, each
Lender shall pay to the Administrative Agent its Applicable Percentage of the
payment then due from the Company, in the same manner as provided in
Section 2.07 with respect to Loans made by such Lender (and
Section 2.07 shall apply, mutatis mutandis, to the payment
obligations of the Lenders), and the Administrative Agent shall promptly pay to
such Issuing Bank the amounts so received by it from the Lenders. Promptly
following receipt by the Administrative Agent of any payment from the Company
pursuant to this paragraph, the Administrative Agent shall distribute such
payment to the relevant Issuing Bank or, to the extent that Lenders have made
payments pursuant to this paragraph to reimburse such Issuing Bank, then to
such Lenders and such Issuing Bank as their interests may appear. Any payment
made by a Lender pursuant to this paragraph to reimburse an Issuing Bank for
any LC Disbursement (other than the funding of ABR Revolving Loans or a
Swingline Loan as contemplated above) shall not constitute a Loan and shall not
relieve the Company of its obligation to reimburse such LC Disbursement. If the
Company’s reimbursement of, or obligation to reimburse, any amounts in any
Foreign Currency would subject the Administrative Agent, the relevant Issuing
Bank or any Lender to any stamp duty, ad valorem charge or similar tax
that would not be payable if such reimbursement were made or required to be
made in Dollars, the Company shall, at its option, either (x) pay the
amount of any such tax requested by the Administrative Agent, the relevant
Issuing Bank or the relevant Lender or (y) reimburse each LC Disbursement
made in such Foreign Currency in Dollars, in an amount equal to the Equivalent
Amount, calculated using the applicable Exchange Rates, on the date such LC
Disbursement is made, of such LC Disbursement.


                    (f)
Obligations Absolute. The Company’s obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability
of any Letter of Credit or this Agreement, or any term or provision therein,
(ii) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect, (iii) payment by an
Issuing Bank under a Letter of Credit against presentation of a draft or other
document that does not comply with the terms of such Letter of Credit, or
(iv) any other event or circumstance whatsoever, whether or not similar to
any of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of, or provide a right of setoff
against, the Company’s obligations hereunder. Neither the Administrative Agent,
the Lenders nor any Issuing Bank, nor any of their Related Parties, shall have
any liability or responsibility by reason of or in connection with the issuance
or transfer of any Letter of Credit or any payment or failure to make any
payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of the relevant Issuing
Bank; provided that the foregoing shall not be construed to excuse any
Issuing Bank from liability to the Company to the extent of any direct damages
(as opposed to special, indirect, consequential or punitive damages, claims in
respect of which are hereby waived by the Company to the extent permitted by
applicable law) suffered by the Company that are caused by such Issuing Bank’s
failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that, in the absence of gross negligence or willful
misconduct on the part of any Issuing Bank (as finally determined by a court of
competent jurisdiction), such Issuing Bank shall be deemed to have exercised
care in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, each Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without
responsibility for further investigation, 


29





regardless of any notice or information to the contrary, or refuse to
accept and make payment upon such documents if such documents are not in strict
compliance with the terms of such Letter of Credit.


                    (g)
Disbursement Procedures. Each Issuing Bank shall, promptly following its
receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. Each Issuing Bank shall promptly notify the
Administrative Agent and the Company by telephone (confirmed by telecopy) of
such demand for payment and whether such Issuing Bank has made or will make an
LC Disbursement thereunder; provided that any failure to give or delay
in giving such notice shall not relieve the Company of its obligation to
reimburse such Issuing Bank and the Lenders with respect to any such LC
Disbursement.


                    (h)
Interim Interest. If any Issuing Bank shall make any LC Disbursement,
then, unless the Company shall reimburse such LC Disbursement in full on the
date such LC Disbursement is made, the unpaid amount thereof shall bear
interest, for each day from and including the date such LC Disbursement is made
to but excluding the date that the Company reimburses such LC Disbursement, at
the rate per annum then applicable to ABR Revolving Loans (or in the case such
LC Disbursement is denominated in a Foreign Currency, at the Overnight Foreign
Currency Rate for such Agreed Currency plus the then effective
Applicable Rate with respect to Eurocurrency Revolving Loans); provided
that, if the Company fails to reimburse such LC Disbursement when due pursuant
to paragraph (e) of this Section, then Section 2.13(c) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of such
Issuing Bank, except that interest accrued on and after the date of payment by
any Lender pursuant to paragraph (e) of this Section to reimburse such
Issuing Bank shall be for the account of such Lender to the extent of such
payment.


                    (i)
Replacement of an Issuing Bank. Any Issuing Bank may be replaced at any
time by written agreement among the Company, the Administrative Agent, the
replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent
shall notify the Lenders of any such replacement of an Issuing Bank. At the
time any such replacement shall become effective, the Company shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.12(b). From and after the effective date of any such
replacement, (i) the successor Issuing Bank shall have all the rights and
obligations of an Issuing Bank under this Agreement with respect to Letters of
Credit to be issued thereafter and (ii) references herein to the term
“Issuing Bank” shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the replacement of an Issuing Bank hereunder, the
replaced Issuing Bank shall remain a party hereto and shall continue to have
all the rights and obligations of an Issuing Bank under this Agreement with
respect to Letters of Credit then outstanding and issued by it prior to such
replacement, but shall not be required to issue additional Letters of Credit.


                    (j)
Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that the Company receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Lenders with LC Exposure representing greater than 50% of
the total LC Exposure) demanding the deposit of cash collateral pursuant to
this paragraph, the Company shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in cash equal to 105% of the Dollar Amount of the LC
Exposure as of such date plus any accrued and unpaid interest thereon; provided
that (i) the portions of such amount attributable to undrawn Foreign
Currency Letters of Credit or LC Disbursements in a Foreign Currency that the
Company is not late in reimbursing shall be deposited in the applicable Foreign
Currencies in the actual amounts of such undrawn Letters of Credit and LC
Disbursements and (ii) the obligation to deposit such cash collateral shall
become effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any
Event of Default with respect to the Company described in clause (h) or
(i) of 


30





Article VII. For the purposes of this paragraph, the Foreign
Currency LC Exposure shall be calculated using the applicable Exchange Rate on
the date notice demanding cash collateralization is delivered to the Company.
The Company also shall deposit cash collateral pursuant to this paragraph as
and to the extent required by Section 2.11(b). Such deposit shall be held
by the Administrative Agent as collateral for the payment and performance of
the Obligations. The Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other than any
interest earned on the investment of such deposits, which investments shall be
made at the option and sole discretion of the Administrative Agent and at the
Company’s risk and expense, such deposits shall not bear interest. Interest or
profits, if any, on such investments shall accumulate in such account. Moneys
in such account shall be applied by the Administrative Agent to reimburse the
relevant Issuing Bank for LC Disbursements for which it has not been reimbursed
and, to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Company for the LC Exposure at such time or,
if the maturity of the Loans has been accelerated (but subject to the consent
of Lenders with LC Exposure representing greater than 50% of the total LC
Exposure), be applied to satisfy other Obligations. If the Company is required
to provide an amount of cash collateral hereunder as a result of the occurrence
of an Event of Default, such amount (to the extent not applied as aforesaid)
shall be returned to the Company within three (3) Business Days after all
Events of Default have been cured or waived.


                    (k)
Conversion. In the event that the Loans become immediately due and
payable on any date pursuant to Article VII, all amounts (i) that the
Company is at the time or thereafter becomes required to reimburse or otherwise
pay to the Administrative Agent in respect of LC Disbursements made under any
Foreign Currency Letter of Credit (other than amounts in respect of which the
Company has deposited cash collateral pursuant to paragraph (j) above, if
such cash collateral was deposited in the applicable Foreign Currency to the
extent so deposited or applied), (ii) that the Lenders are at the time or
thereafter become required to pay to the Administrative Agent and the
Administrative Agent is at the time or thereafter becomes required to
distribute to the relevant Issuing Bank pursuant to paragraph (e) of this
Section in respect of unreimbursed LC Disbursements made under any Foreign
Currency Letter of Credit and (iii) of each Lender’s participation in any
Foreign Currency Letter of Credit under which an LC Disbursement has been made
shall, automatically and with no further action required, be converted into the
Dollar Amount, calculated using the Administrative Agent’s currency exchange
rates on such date (or in the case of any LC Disbursement made after such date,
on the date such LC Disbursement is made), of such amounts. On and after such
conversion, all amounts accruing and owed to the Administrative Agent, any
Issuing Bank or any Lender in respect of the obligations described in this
paragraph shall accrue and be payable in Dollars at the rates otherwise
applicable hereunder.


                    (l)
Issuing Bank Agreements. Each Issuing Bank agrees that, unless otherwise
requested by the Administrative Agent, such Issuing Bank shall report in
writing to the Administrative Agent (i) on the first Business Day of each
week, the daily activity (set forth by day) in respect of Letters of Credit
during the immediately preceding week, including all issuances, extensions,
amendments and renewals, all expirations and cancellations and all
disbursements and reimbursements, (ii) on or prior to each Business Day on
which such Issuing Bank expects to issue, amend, renew or extend any Letter of
Credit, the date of such issuance, amendment, renewal or extension, and the
aggregate face amount of the Letters of Credit to be issued, amended, renewed
or extended by it and outstanding after giving effect to such issuance,
amendment, renewal or extension occurred (and whether the amount thereof
changed), it being understood that such Issuing Bank shall not permit any
issuance, renewal, extension or amendment resulting in an increase in the
amount of any Letter of Credit to occur without first obtaining written
confirmation from the Administrative Agent that it is then permitted under this
Agreement, (iii) on each Business Day on which such Issuing Bank makes any
LC Disbursement, the date of such LC Disbursement and the amount of such LC
Disbursement, (iv) on any Business Day on which any Borrower fails to
reimburse an LC Disbursement required to be reimbursed to such Issuing Bank on
such 


31





day, the date of such failure and the amount and currency of such LC
Disbursement and (v) on any other Business Day, such other information as
the Administrative Agent shall reasonably request.


                    SECTION
2.07.  Funding of Borrowings.
(a) Each Lender shall make each Loan to be made by it hereunder on the proposed
date thereof by wire transfer of immediately available funds (i) in the
case of Loans denominated in Dollars, by 12:00 noon, Chicago time, to the
account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders and (ii) in the case of each Loan
denominated in a Foreign Currency, by 12:00 noon, Local Time, in the city of
the Administrative Agent’s Eurocurrency Payment Office for such currency and at
such Eurocurrency Payment Office for such currency; provided that
Swingline Loans shall be made as provided in Section 2.05. The
Administrative Agent will make such Loans available to the relevant Borrower by
promptly crediting the amounts so received, in like funds, to (x) an
account of the Company maintained with the Administrative Agent in New York
City or Chicago and designated by the Company in the applicable Borrowing
Request, in the case of Loans denominated in Dollars and (y) an account of
such Borrower in the relevant jurisdiction and designated by such Borrower in
the applicable Borrowing Request, in the case of Loans denominated in a Foreign
Currency; provided that ABR Revolving Loans made to finance the
reimbursement of an LC Disbursement as provided in Section 2.06(e) shall
be remitted by the Administrative Agent to the relevant Issuing Bank.


                    (b)
Unless the Administrative Agent shall have received notice from a Lender prior
to the proposed date of any Borrowing that such Lender will not make available
to the Administrative Agent such Lender’s share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available
on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the relevant Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and such Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with
interest thereon, for each day from and including the date such amount is made
available to such Borrower to but excluding the date of payment to the
Administrative Agent, at (i) in the case of such Lender, the greater of
the Federal Funds Effective Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation (including
without limitation the Overnight Foreign Currency Rate in the case of Loans
denominated in a Foreign Currency) or (ii) in the case of such Borrower,
the interest rate applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender’s Loan
included in such Borrowing.


                    SECTION
2.08. Interest
Elections. (a) Each Revolving Borrowing initially
shall be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurocurrency Revolving Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request. Thereafter, the relevant
Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurocurrency Revolving Borrowing, may
elect Interest Periods therefor, all as provided in this Section. A Borrower
may elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall
not apply to Swingline Borrowings, which may not be converted or continued.


                    (b)
To make an election pursuant to this Section, a Borrower, or the Company on its
behalf, shall notify the Administrative Agent of such election (by telephone or
irrevocable written notice in the case of a Borrowing denominated in Dollars or
by irrevocable written notice (via an Interest Election Request signed by such
Borrower, or the Company on its behalf) in the case of a Borrowing denominated
in a Foreign Currency) by the time that a Borrowing Request would be required
under 


32





Section 2.03 if such Borrower were requesting a Revolving
Borrowing of the Type resulting from such election to be made on the effective
date of such election. Each such telephonic Interest Election Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request signed by the
relevant Borrower, or the Company on its behalf. Notwithstanding any contrary
provision herein, this Section shall not be construed to permit any Borrower to
(i) change the currency of any Borrowing, (ii) elect an Interest
Period for Eurocurrency Loans that does not comply with Section 2.02(d) or
(iii) convert any Borrowing to a Borrowing of a Type not available under
such Borrowing.


                    (c)  Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:


           (i)  
the name of the applicable Borrower and the Borrowing to which
such Interest Election Request applies and, if different options are being
elected with respect to different portions thereof, the portions thereof to be
allocated to each resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) below shall be specified
for each resulting Borrowing);


           (ii)  the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;


           (iii) whether
the resulting Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;
and


           (iv)  if
the resulting Borrowing is a Eurocurrency Borrowing, the Interest Period and
Agreed Currency to be applicable thereto after giving effect to such election,
which Interest Period shall be a period contemplated by the definition of the
term “Interest Period”.


If any such Interest Election Request requests a Eurocurrency Borrowing
but does not specify an Interest Period, then the applicable Borrower shall be
deemed to have selected an Interest Period of one month’s duration.


                    (d) 
Promptly following receipt of an Interest Election Request, the Administrative
Agent shall advise each Lender of the details thereof and of such Lender’s
portion of each resulting Borrowing.


                    (e) 
If the relevant Borrower, or the Company on its behalf, fails to deliver a
timely Interest Election Request with respect to a Eurocurrency Revolving
Borrowing prior to the end of the Interest Period applicable thereto, then, unless
such Borrowing is repaid as provided herein, at the end of such Interest Period
(i) in the case of a Borrowing denominated in Dollars, such Borrowing
shall be converted to an ABR Borrowing and (ii) in the case of a Borrowing
denominated in a Foreign Currency in respect of which the applicable Borrower,
or the Company on its behalf, shall have failed to deliver an Interest Election
Request prior to the third (3rd) Business Day preceding the end
of such Interest Period, such Borrowing shall automatically continue as a
Eurocurrency Borrowing in the same Agreed Currency with an Interest Period of
one month unless such Eurocurrency Borrowing is or was repaid in accordance
with Section 2.11. Notwithstanding any contrary provision hereof, if an
Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Company, then, so long
as an Event of Default is continuing (i) no outstanding Revolving
Borrowing denominated in Dollars may be converted to or continued as a
Eurocurrency Borrowing, (ii) unless repaid, each Eurocurrency Revolving Borrowing denominated in Dollars shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto and
(iii) unless repaid, each Eurocurrency 


33





Revolving Borrowing denominated in
a Foreign Currency shall automatically be continued as a Eurocurrency Borrowing
with an Interest Period of one month.


                    SECTION
2.09. Termination
and Reduction of Commitments. (a) Unless previously terminated, the
Commitments shall terminate on the Maturity Date.


                    (b)
The Company may at any time terminate, or from time to time reduce, the
Commitments; provided that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of $1,000,000 and not less
than $5,000,000 and (ii) the Company shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans
in accordance with Section 2.11, the Dollar Amount of the sum of the
Revolving Credit Exposures would exceed the Aggregate Commitment.


                    (c)
The Company shall notify the Administrative Agent of any election to terminate
or reduce the Commitments under paragraph (b) of this Section at least
three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Company pursuant
to this Section shall be irrevocable; provided that a notice of
termination of the Commitments delivered by the Company may state that such
notice is conditioned upon the effectiveness of other credit facilities or
other transactions specified therein, in which case such notice may be revoked
by the Company (by notice to the Administrative Agent on or prior to the
specified effective date) if such condition is not satisfied. Any termination
or reduction of the Commitments shall be permanent. Each reduction of the
Commitments shall be made ratably among the Lenders in accordance with their
respective Commitments.


                    SECTION
2.10. Repayment
of Loans; Evidence of Debt. (a) Each Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for
the account of each Lender the then unpaid principal amount of each Revolving
Loan made to such Borrower on the Maturity Date in the currency of such Loan
and (ii) in the case of the Company, to the Swingline Lender the then
unpaid principal amount of each Swingline Loan on the earlier of the Maturity
Date and the first date after such Swingline Loan is made that is the 15th
or last day of a calendar month and is at least two Business Days after such
Swingline Loan is made; provided that on each date that a Revolving
Borrowing is made, the Company shall repay all Swingline Loans then
outstanding.


                    (b)
Each Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of each Borrower to such Lender resulting
from each Loan made by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder.


                    (c)
The Administrative Agent shall maintain accounts in which it shall record
(i) the amount of each Loan made hereunder, the Class, Agreed Currency and
Type thereof and the Interest Period applicable thereto, (ii) the amount
of any principal or interest due and payable or to become due and payable from
each Borrower to each Lender hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder for the account of the Lenders
and each Lender’s share thereof.


                    (d)
The entries made in the accounts maintained pursuant to paragraph (b) or
(c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that
the failure of any Lender or the Administrative Agent to maintain such accounts
or any error therein shall not in any manner affect the obligation of any
Borrower to repay the Loans in accordance with the terms of this Agreement.


34





                    (e)
Any Lender may request that Loans made by it to any Borrower be evidenced by a
promissory note. In such event, the relevant Borrower shall prepare, execute
and deliver to such Lender a promissory note payable to the order of such
Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in the form attached hereto as Exhibit K. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by
one or more promissory notes in such form payable to the order of the payee
named therein (or, if such promissory note is a registered note, to such payee
and its registered assigns).


                    SECTION
2.11. Prepayment
of Loans.


                    (a)
Any Borrower shall have the right at any time and from time to time to prepay
any Borrowing in whole or in part, subject to prior notice in accordance with
the provisions of this Section 2.11(a). The applicable Borrower, or the
Company on behalf of the applicable Borrower, shall notify the Administrative
Agent (and, in the case of prepayment of a Swingline Loan, the Swingline
Lender) by telephone (confirmed by telecopy) of any prepayment hereunder
(i) in the case of prepayment of a Eurocurrency Revolving Borrowing, not
later than 11:00 a.m., Local Time, three (3) Business Days (in the
case of a Eurocurrency Borrowing denominated in Dollars) or four
(4) Business Days (in the case of a Eurocurrency Borrowing denominated in
a Foreign Currency), in each case before the date of prepayment, (ii) in
the case of prepayment of an ABR Revolving Borrowing, not later than
11:00 a.m., Chicago time, one (1) Business Day before the date of
prepayment or (iii) in the case of prepayment of a Swingline Loan, not
later than 12:00 noon, Chicago time, on the date of prepayment. Each such
notice shall be irrevocable and shall specify the prepayment date and the
principal amount of each Borrowing or portion thereof to be prepaid; provided
that, if a notice of prepayment is given in connection with a conditional notice
of termination of the Commitments as contemplated by Section 2.09, then
such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.09. Promptly following receipt of any
such notice relating to a Revolving Borrowing, the Administrative Agent shall
advise the Lenders of the contents thereof. Each partial prepayment of any
Revolving Borrowing shall be in an amount that would be permitted in the case
of an advance of a Revolving Borrowing of the same Type as provided in
Section 2.02. Each prepayment of a Revolving Borrowing shall be applied
ratably to the Loans included in the prepaid Borrowing. Prepayments shall be
accompanied by (i) accrued interest to the extent required by
Section 2.13 and (ii) break funding payments pursuant to
Section 2.16.


                    (b)
If at any time, (i) other than as a result of fluctuations in currency exchange
rates, (A) the sum of the aggregate principal Dollar Amount of all of the
Revolving Credit Exposures (calculated, with respect to those Credit Events
denominated in Foreign Currencies, as of the most recent Computation Date with
respect to each such Credit Event) exceeds the Aggregate Commitment or (B) such
sum in respect of Foreign Subsidiary Borrowers (collectively, “Foreign
Subsidiary Borrower Exposure”) exceeds the Foreign Subsidiary Borrower Sublimit
or (ii) solely as a result of fluctuations in currency exchange rates, (A) the
sum of the aggregate principal Dollar Amount of all of the Revolving Credit
Exposures (calculated, with respect to those Credit Events denominated in
Foreign Currencies, as of the most recent Computation Date with respect to each
such Credit Event) exceeds 105% of the Aggregate Commitment or (B) the Foreign
Subsidiary Borrower Exposure exceeds 105% of the Foreign Subsidiary Borrower
Sublimit, the Borrowers shall in each case immediately repay Borrowings or cash
collateralize LC Disbursements in an account with the Administrative Agent
pursuant to Section 2.06(j), as applicable, in an aggregate principal amount
sufficient to cause (x) the aggregate Dollar Amount of all Revolving Credit
Exposures (so calculated) to be less than or equal to the Aggregate Commitment
and (y) the Foreign Subsidiary Borrower Exposure to be less than or equal to the
Foreign Subsidiary Borrower Sublimit, as applicable.


35





                    SECTION
2.12. Fees.
(a) The Company agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Rate on the average daily amount of the
Available Revolving Commitment of such Lender during the period from and
including the Effective Date to but excluding the date on which such Commitment
terminates; provided that, if such Lender continues to have any Revolving
Credit Exposure after its Commitment terminates, then such commitment fee shall
continue to accrue on the daily amount of such Lender’s Revolving Credit
Exposure from and including the date on which its Commitment terminates to but
excluding the date on which such Lender ceases to have any Revolving Credit
Exposure. Accrued commitment fees shall be payable in arrears on the last day
of March, June, September and December of each year and on the date on which
the Commitments terminate, commencing on the first such date to occur after the
date hereof; provided that any commitment fees accruing after the date on which
the Commitments terminate shall be payable on demand. All commitment fees shall
be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day). For purposes of computing commitment fees, the Commitment of a
Lender shall be deemed to be used to the extent of the outstanding Revolving
Loans and LC Exposure of such Lender.


                    (b)
The Company agrees to pay (i) to the Administrative Agent for the account
of each Lender a participation fee with respect to its participations in
Letters of Credit, which shall accrue, in the case of commercial or performance
Letters of Credit, at the Applicable Rate and, in the case of standby Letters
of Credit, at the same Applicable Rate used to determine the interest rate
applicable to Eurocurrency Revolving Loans on the average daily Dollar Amount
of such Lender’s LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on which such Lender’s
Commitment terminates and the date on which such Lender ceases to have any LC
Exposure, and (ii) to the relevant Issuing Bank a fronting fee, which
shall accrue at the rate of 0.125% per annum on the average daily Dollar Amount
of the LC Exposure (excluding any portion thereof attributable to unreimbursed
LC Disbursements) attributable to Letters of Credit issued by such Issuing Bank
during the period from and including the Effective Date to but excluding the
later of the date of termination of the Commitments and the date on which there
ceases to be any LC Exposure, as well as such Issuing Bank’s standard fees and
commissions (including, without limitation, standard commissions with respect
to commercial or performance Letters of Credit, payable at the time of invoice
of such amounts) with respect to the issuance, amendment, cancellation,
negotiation, transfer, presentment, renewal or extension of any Letter of
Credit or processing of drawings thereunder. Participation fees and fronting
fees accrued through and including the last day of March, June, September and
December of each year shall be payable on the third (3rd) Business
Day following such last day, commencing on the first such date to occur after
the Effective Date; provided that all such fees shall be payable on the
date on which the Commitments terminate and any such fees accruing after the
date on which the Commitments terminate shall be payable on demand. Any other
fees payable to any Issuing Bank pursuant to this paragraph shall be payable
within ten (10) days after demand. All participation fees and fronting
fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day). Participation fees and fronting fees in respect of
Letters of Credit denominated in Dollars shall be paid in Dollars, and
participation fees and fronting fees in respect of Letters of Credit
denominated in a Foreign Currency shall be paid in such Foreign Currency.


                    (c)
The Company agrees to pay to the Administrative Agent, for its own account,
fees payable in the amounts and at the times separately agreed upon between the
Company and the Administrative Agent.


                    (d)
All fees payable hereunder shall be paid on the dates due, in Dollars (except
as otherwise expressly provided in this Section 2.12) and immediately
available funds, to the Administrative Agent (or to the relevant Issuing Bank,
in the case of fees payable to it) for distribution, in the case of 


36





commitment fees and participation fees, to the Lenders. Fees paid shall not be
refundable under any circumstances.


                    SECTION
2.13. Interest. (a) The Loans comprising each ABR Borrowing (including each Swingline Loan)
shall bear interest at the Alternate Base Rate plus the Applicable Rate.


                    (b)
The Loans comprising each Eurocurrency Borrowing shall bear interest at the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus
the Applicable Rate.


                    (c)
Notwithstanding the foregoing, if any principal of or interest on any Loan or
any fee or other amount payable by any Borrower hereunder is not paid when due,
whether at stated maturity, upon acceleration or otherwise, such overdue amount
shall bear interest, after as well as before judgment, at a rate per annum
equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.


                    (d)
Accrued interest on each Loan shall be payable in arrears on each Interest
Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Commitments; provided that (i) interest accrued
pursuant to paragraph (c) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Availability
Period), accrued interest on the principal amount repaid or prepaid shall be
payable on the date of such repayment or prepayment and (iii) in the event
of any conversion of any Eurocurrency Revolving Loan prior to the end of the
current Interest Period therefor, accrued interest on such Loan shall be
payable on the effective date of such conversion.


                    (e)
All interest hereunder shall be computed on the basis of a year of
360 days, except that interest (i) computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on the Prime
Rate shall be computed on the basis of a year of 365 days (or
366 days in a leap year) and (ii) for Borrowings denominated in
Pounds Sterling shall be computed on the basis of a year of 365 days, and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative
Agent, and such determination shall be conclusive absent manifest error.


                    SECTION
2.14. Alternate
Rate of Interest. (a) If at the time that the
Administrative Agent shall seek to determine the applicable Screen Rate on the
Quotation Day for any Interest Period for a Eurocurrency Borrowing the
applicable Screen Rate shall not be available for such Interest Period and/or
for the applicable currency with respect to such Eurocurrency Borrowing for any
reason, and the Administrative Agent shall reasonably determine that it is not
possible to determine the Interpolated Rate (which conclusion shall be
conclusive and binding absent manifest error), then the Reference Bank Rate
shall be the LIBO Rate for such Interest Period for such Eurocurrency
Borrowing; provided that if the Reference Bank Rate shall be less than
zero, such rate shall be deemed to be zero for purposes of this Agreement; provided,
further, however, that if less than two Reference Banks shall supply a
rate to the Administrative Agent for purposes of determining the LIBO Rate for
such Eurocurrency Borrowing, (i) if such Borrowing shall be requested in
Dollars, then such Borrowing shall be made as an ABR Borrowing at the Alternate
Base Rate and (ii) if such Borrowing shall be requested in any Foreign
Currency, the LIBO Rate shall be equal to the cost to each Lender to fund its
pro rata share of such Eurocurrency Borrowing (from whatever source and using
whatever methodologies as such Lender may select in its reasonable discretion,
such rate, the “COF Rate”).


                    (b)
If prior to the commencement of any Interest Period for a Eurocurrency
Borrowing:


37





          (i) the
Administrative Agent determines (which determination shall be conclusive and
binding absent manifest error) that adequate and reasonable means do not exist
for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable, for a
Loan in the applicable currency or for the applicable Interest Period; or


          (ii) the
Administrative Agent is advised by the Required Lenders that the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for a Loan in the applicable currency or
for the applicable Interest Period will not adequately and fairly reflect the
cost to such Lenders (or Lender) of making or maintaining their Loans (or its
Loan) included in such Borrowing for such Interest Period;


then the Administrative Agent shall give notice thereof to the
applicable Borrower and the Lenders by telephone or telecopy as promptly as
practicable thereafter and, until the Administrative Agent notifies the
applicable Borrower and the Lenders that the circumstances giving rise to such
notice no longer exist, (i) any Interest Election Request that requests
the conversion of any Revolving Borrowing to, or continuation of any Revolving
Borrowing as, a Eurocurrency Borrowing shall be ineffective and, unless repaid,
(A) in the case of a Eurocurrency Borrowing denominated in Dollars for the
applicable Interest Period, such Borrowing shall be continued as an ABR
Borrowing and (B) in the case of a Eurocurrency Borrowing denominated in
the applicable Foreign Currency or for the applicable Interest Period, such
Eurocurrency Borrowing shall be repaid on the last day of the then current
Interest Period applicable thereto, (ii) if any Borrowing Request requests
a Eurocurrency Revolving Borrowing in Dollars, such Borrowing shall be made as
an ABR Borrowing and (iii) if any Borrowing Request requests a Eurocurrency
Revolving Borrowing denominated in a Foreign Currency, then the LIBO Rate for
such Eurocurrency Borrowing shall be the COF Rate; provided that if the
circumstances giving rise to such notice affect only one Type of Borrowings,
then the other Type of Borrowings shall be permitted.


                    SECTION
2.15. Increased
Costs. (a)
If any Change in Law shall:


          (i) impose,
modify or deem applicable any reserve, special deposit, liquidity or similar
requirement (including any compulsory loan requirement, insurance charge or
other assessment) against assets of, deposits with or for the account of, or
credit extended by, any Lender (except any such reserve requirement reflected
in the Adjusted LIBO Rate) or any Issuing Bank;


          (ii) impose
on any Lender or any Issuing Bank or the London interbank market any other
condition, cost or expense (other than Taxes) affecting this Agreement or Loans
made by such Lender or any Letter of Credit or participation therein; or


          (iii)
subject any Recipient to any Taxes (other than (A) Indemnified Taxes,
(B) Taxes described in clauses (b) through (d) of the definition
of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan
principal, letters of credit, commitments, or other obligations, or its
deposits, reserves, other liabilities or capital attributable thereto;


and the result of any of the foregoing shall be to increase the cost to
such Lender or such other Recipient of making, continuing, converting into or
maintaining any Loan or of maintaining its obligation to make any such Loan or
to increase the cost to such Lender, such Issuing Bank or such other Recipient
of participating in, issuing or maintaining any Letter of Credit or to reduce
the amount of any sum received or receivable by such Lender, such Issuing Bank
or such other Recipient hereunder, whether of principal, interest or otherwise,
then the applicable Borrower will pay to such Lender, such Issuing Bank or such
other Recipient, as the case may be, such additional amount or amounts as will
compensate such Lender, such Issuing Bank or such other Recipient, as the case
may be, for such additional costs incurred or reduction suffered.


38





                    (b)
If any Lender or any Issuing Bank determines that any Change in Law regarding
capital or liquidity requirements has or would have the effect of reducing the
rate of return on such Lender’s or such Issuing Bank’s capital or on the
capital of such Lender’s or such Issuing Bank’s holding company, if any, as a
consequence of this Agreement or the Loans made by, or participations in Letters
of Credit held by, such Lender, or the Letters of Credit issued by such Issuing
Bank, to a level below that which such Lender or such Issuing Bank or such
Lender’s or such Issuing Bank’s holding company could have achieved but for
such Change in Law (taking into consideration such Lender’s or such Issuing
Bank’s policies and the policies of such Lender’s or such Issuing Bank’s
holding company with respect to capital adequacy and liquidity), then from time
to time the applicable Borrower will pay to such Lender or such Issuing Bank,
as the case may be, such additional amount or amounts as will compensate such
Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding
company for any such reduction suffered.


                    (c)
A certificate of a Lender or an Issuing Bank setting forth the amount or
amounts necessary to compensate such Lender or such Issuing Bank or its holding
company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Company and shall be conclusive absent
manifest error. The Company shall pay, or cause the other Borrowers to pay,
such Lender or such Issuing Bank, as the case may be, the amount shown as due
on any such certificate within 10 days after receipt thereof.


                    (d)
Failure or delay on the part of any Lender or any Issuing Bank to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender’s or such Issuing Bank’s right to demand such compensation; provided
that the Company shall not be required to compensate a Lender or an Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 270 days prior to the date that such Lender or such Issuing
Bank, as the case may be, notifies the Company of the Change in Law giving rise
to such increased costs or reductions and of such Lender’s or such Issuing
Bank’s intention to claim compensation therefor; provided further
that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 270-day period referred to above shall be extended to
include the period of retroactive effect thereof.


                    SECTION
2.16. Break Funding
Payments. In the event of (a) the payment of
any principal of any Eurocurrency Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default or as a result of any prepayment pursuant to Section 2.11),
(b) the conversion of any Eurocurrency Loan other than on the last day of
the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Eurocurrency Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.11(a) and is revoked in accordance therewith) or
(d) the assignment of any Eurocurrency Loan other than on the last day of
the Interest Period applicable thereto as a result of a request by the Company
pursuant to Section 2.19, then, in any such event, the Borrowers shall compensate
each Lender for the loss, cost and expense attributable to such event. Such
loss, cost or expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount of such Loan had such
event not occurred, at the Adjusted LIBO Rate that would have been applicable
to such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period
for such Loan), over (ii) the amount of interest which would accrue on
such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for deposits in
the relevant currency of a comparable amount and period from other banks in the
eurocurrency market. A certificate of any Lender setting forth any amount or
amounts that such Lender is entitled to receive pursuant to this Section shall
be delivered to the applicable Borrower and shall be conclusive absent manifest
error. The


39





applicable Borrower shall pay such Lender the amount shown as due on
any such certificate within ten (10) days after receipt thereof.


                    SECTION
2.17. Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of any Loan Party under any Loan Document shall be made without
deduction or withholding for any Taxes, except as required by applicable law.
If any applicable law (as determined in the good faith discretion of an
applicable Withholding Agent) requires the deduction or withholding of any Tax
from any such payment by a Withholding Agent, then the applicable Withholding
Agent shall be entitled to make such deduction or withholding and shall timely
pay the full amount deducted or withheld to the relevant Governmental Authority
in accordance with applicable law and, if such Tax is an Indemnified Tax, then
the sum payable by the applicable Loan Party shall be increased as necessary so
that after such deduction or withholding has been made (including such
deductions and withholdings applicable to additional sums payable under this
Section 2.17) the applicable Recipient receives an amount equal to the sum
it would have received had no such deduction or withholding been made.


                    (b)
Payment of Other Taxes by the Borrowers. The relevant Borrower shall
timely pay to the relevant Governmental Authority in accordance with applicable
law, or at the option of the Administrative Agent timely reimburse it for,
Other Taxes.


                    (c)
Evidence of Payments. As soon as practicable after any payment of Taxes
by any Loan Party to a Governmental Authority pursuant to this
Section 2.17, such Loan Party shall deliver to the Administrative Agent
the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or
other evidence of such payment reasonably satisfactory to the Administrative
Agent.


                    (d)
Indemnification by the Loan Parties. The Loan Parties shall indemnify
each Recipient, within 10 days after demand therefor, for the full amount
of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or
attributable to amounts payable under this Section) payable or paid by such
Recipient or required to be withheld or deducted from a payment to such
Recipient and any reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the relevant Borrower by a
Lender (with a copy to the Administrative Agent), or by the Administrative
Agent on its own behalf or on behalf of a Lender, shall be conclusive absent
manifest error.


                    (e)
Indemnification by the Lenders. Each Lender shall severally indemnify
the Administrative Agent, within 10 days after demand therefor, for
(i) any Indemnified Taxes attributable to such Lender (but only to the
extent that any Loan Party has not already indemnified the Administrative Agent
for such Indemnified Taxes and without limiting the obligation of the Loan
Parties to do so), (ii) any Taxes attributable to such Lender’s failure to
comply with the provisions of Section 9.04(c) relating to the maintenance
of a Participant Register and (iii) any Excluded Taxes attributable to
such Lender, in each case, that are payable or paid by the Administrative Agent
in connection with any Loan Document, and any reasonable expenses arising
therefrom or with respect thereto, whether or not such Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to any
Lender by the Administrative Agent shall be conclusive absent manifest error.
Each Lender hereby authorizes the Administrative Agent to set off and apply any
and all amounts at any time owing to such Lender under any Loan Document or
otherwise payable by the Administrative Agent to the Lender from any other
source against any amount due to the Administrative Agent under this
paragraph (e).


40





                    (f)
Status of Lenders. (i) Any Lender that is entitled to an exemption from
or reduction of withholding Tax with respect to payments made under any Loan
Document shall deliver to the Borrowers and the Administrative Agent, at the
time or times reasonably requested by the Borrowers or the Administrative
Agent, such properly completed and executed documentation reasonably requested
by the Borrowers or the Administrative Agent as will permit such payments to be
made without withholding or at a reduced rate of withholding. In addition, any
Lender, if reasonably requested by the Borrowers or the Administrative Agent,
shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrowers or the Administrative Agent as will
enable the Borrowers or the Administrative Agent to determine whether or not
such Lender is subject to backup withholding or information reporting
requirements. Notwithstanding anything to the contrary in the preceding two
sentences, the completion, execution and submission of such documentation
(other than such documentation set forth in Section 2.17(f)(ii)(A),
(ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable
judgment such completion, execution or submission would subject such Lender to
any material unreimbursed cost or expense or would materially prejudice the
legal or commercial position of such Lender.


          
(ii) Without limiting the generality of the foregoing, in the event that
any Borrower is a U.S. Person:


          (A) any
Lender that is a U.S. Person shall deliver to such Borrower and the
Administrative Agent on or prior to the date on which such Lender becomes a
Lender under this Agreement (and from time to time thereafter upon the
reasonable request of such Borrower or the Administrative Agent), executed
originals of IRS Form W-9 certifying that such Lender is exempt from
U.S. Federal backup withholding tax;


          (B) any
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to
such Borrower and the Administrative Agent (in such number of copies as shall
be requested by the recipient) on or prior to the date on which such Foreign
Lender becomes a Lender under this Agreement (and from time to time thereafter
upon the reasonable request of such Borrower or the Administrative Agent),
whichever of the following is applicable;


          (1) in the
case of a Foreign Lender claiming the benefits of an income tax treaty to which
the United States is a party (x) with respect to payments of interest
under any Loan Document, executed originals of IRS Form W-8BEN or IRS Form
W-8BEN-E establishing an exemption from, or reduction of, U.S. Federal
withholding Tax pursuant to the “interest” article of such tax treaty and
(y) with respect to any other applicable payments under any Loan Document,
IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or
reduction of, U.S. Federal withholding Tax pursuant to the “business profits”
or “other income” article of such tax treaty;


          (2)
executed originals of IRS Form W-8ECI;


          (3) in the
case of a Foreign Lender claiming the benefits of the exemption for portfolio
interest under Section 881(c) of the Code, (x) a certificate
substantially in the form of Exhibit I-1 to the effect that such Foreign
Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the
Code, a “10 percent shareholder” of such Borrower within the meaning of
Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation”
described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance
Certificate”) and (y) executed originals of IRS Form W-8BEN or
IRS Form W-8BEN-E; or


41





          (4) to the
extent a Foreign Lender is not the beneficial owner, executed originals of IRS
Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or
IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the
form of Exhibit I-2 or Exhibit I-3, IRS Form W-9, and/or
other certification documents from each beneficial owner, as applicable; provided
that if the Foreign Lender is a partnership and one or more direct or indirect
partners of such Foreign Lender are claiming the portfolio interest exemption,
such Foreign Lender may provide a U.S. Tax Compliance Certificate
substantially in the form of Exhibit I-4 on behalf of each such direct
and indirect partner;


          (C) any
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to
such Borrower and the Administrative Agent (in such number of copies as shall
be requested by the recipient) on or prior to the date on which such Foreign
Lender becomes a Lender under this Agreement (and from time to time thereafter
upon the reasonable request of such Borrower or the Administrative Agent),
executed originals of any other form prescribed by applicable law as a basis
for claiming exemption from or a reduction in U.S. Federal withholding
Tax, duly completed, together with such supplementary documentation as may be
prescribed by applicable law to permit such Borrower or the Administrative
Agent to determine the withholding or deduction required to be made; and


          (D) if a
payment made to a Lender under any Loan Document would be subject to
U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail
to comply with the applicable reporting requirements of FATCA (including those
contained in Section 1471(b) or 1472(b) of the Code, as applicable), such
Lender shall deliver to such Borrower and the Administrative Agent at the time
or times prescribed by law and at such time or times reasonably requested by
such Borrower or the Administrative Agent such documentation prescribed by
applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the
Code) and such additional documentation reasonably requested by such Borrower
or the Administrative Agent as may be necessary for such Borrower and the
Administrative Agent to comply with their obligations under FATCA and to
determine that such Lender has complied with such Lender’s obligations under
FATCA or to determine the amount to deduct and withhold from such payment.
Solely for purposes of this clause (D), “FATCA” shall include any
amendments made to FATCA after the date of this Agreement.


          Each Lender
agrees that if any form or certification it previously delivered expires or
becomes obsolete or inaccurate in any respect, it shall update such form or
certification or promptly notify the Company and the Administrative Agent in
writing of its legal inability to do so.


                    (g)
Treatment of Certain Refunds. If any party determines, in its sole
discretion exercised in good faith, that it has received a refund of any Taxes
as to which it has been indemnified pursuant to this Section 2.17
(including by the payment of additional amounts pursuant to this
Section 2.17), it shall pay to the indemnifying party an amount equal to
such refund (but only to the extent of indemnity payments made under this
Section 2.17 with respect to the Taxes giving rise to such refund), net of
all out-of-pocket expenses (including Taxes) of such indemnified party and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund). Such indemnifying party, upon the
request of such indemnified party, shall repay to such indemnified party the
amount paid over pursuant to this paragraph (g) (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) in
the event that such indemnified party is required to repay such refund to such
Governmental Authority. Notwithstanding anything to the contrary in this
paragraph (g), in no event will the indemnified party be required to pay
any amount to an indemnifying party pursuant to this paragraph (g) the
payment of which would place the indemnified party in a less favorable net
after-Tax position than the indemnified party would have been in if the Tax
subject to 


42





indemnification and giving rise to such refund had not been deducted,
withheld or otherwise imposed and the indemnification payments or additional
amounts with respect to such Tax had never been paid. This paragraph shall not
be construed to require any indemnified party to make available its Tax returns
(or any other information relating to its Taxes that it deems confidential) to
the indemnifying party or any other Person.


                    (h)
Survival. Each party’s obligations under this Section 2.17 shall
survive the resignation or replacement of the Administrative Agent or any
assignment of rights by, or the replacement of, a Lender, the termination of
the Commitments and the repayment, satisfaction or discharge of all obligations
under any Loan Document.


                    (i)
Defined Terms. For purposes of this Section 2.17, the term “Lender”
includes each Issuing Bank and the term “applicable law” includes FATCA.


                    SECTION
2.18. Payments
Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) Each Borrower shall make each payment required to be made by it hereunder
(whether of principal, interest, fees or reimbursement of LC Disbursements, or
of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior
to (i) in the case of payments denominated in Dollars, 12:00 noon, Chicago
time and (ii) in the case of payments denominated in a Foreign Currency,
12:00 noon, Local Time, in the city of the Administrative Agent’s Eurocurrency
Payment Office for such currency, in each case on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made (i) in the same currency in which the applicable Credit
Event was made (or where such currency has been converted to euro, in euro) and
(ii) to the Administrative Agent at its offices at 10 South Dearborn
Street, Chicago, Illinois 60603 or, in the case of a Credit Event denominated
in a Foreign Currency, the Administrative Agent’s Eurocurrency Payment Office
for such currency, except payments to be made directly to an Issuing Bank or
the Swingline Lender as expressly provided herein and except that payments
pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to
the Persons entitled thereto. The Administrative Agent shall distribute any
such payments denominated in the same currency received by it for the account
of any other Person to the appropriate recipient promptly following receipt
thereof. If any payment hereunder shall be due on a day that is not a Business
Day, the date for payment shall be extended to the next succeeding Business
Day, and, in the case of any payment accruing interest, interest thereon shall
be payable for the period of such extension. Notwithstanding the foregoing
provisions of this Section, if, after the making of any Credit Event in any
Foreign Currency, currency control or exchange regulations are imposed in the
country which issues such currency with the result that the type of currency in
which the Credit Event was made (the “Original Currency”) no longer
exists or any Borrower is not able to make payment to the Administrative Agent
for the account of the Lenders in such Original Currency, then all payments to
be made by such Borrower hereunder in such currency shall instead be made when
due in Dollars in an amount equal to the Dollar Amount (as of the date of
repayment) of such payment due, it being the intention of the parties hereto
that the Borrowers take all risks of the imposition of any such currency
control or exchange regulations.


                    (b)
If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be
applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second,
towards payment of principal and unreimbursed LC Disbursements then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements then due to such
parties.


43





                    (c)
If any Lender shall, by exercising any right of set-off or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of
its Revolving Loans or participations in LC Disbursements or Swingline Loans
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Revolving Loans and participations in LC Disbursements
and Swingline Loans and accrued interest thereon than the proportion received
by any other Lender, then the Lender receiving such greater proportion shall
purchase (for cash at face value) participations in the Revolving Loans and
participations in LC Disbursements and Swingline Loans of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by
the Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans and participations in LC
Disbursements and Swingline Loans; provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment
made by any Borrower pursuant to and in accordance with the express terms of
this Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements and Swingline Loans to any assignee or participant, other
than to the Company or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). Each Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Borrower rights of set-off and counterclaim
with respect to such participation as fully as if such Lender were a direct
creditor of such Borrower in the amount of such participation.


                    (d)
Unless the Administrative Agent shall have received notice from the relevant
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Banks hereunder that such
Borrower will not make such payment, the Administrative Agent may assume that
such Borrower has made such payment on such date in accordance herewith and
may, in reliance upon such assumption, distribute to the Lenders or the Issuing
Banks, as the case may be, the amount due. In such event, if such Borrower has
not in fact made such payment, then each of the Lenders or each Issuing Bank,
as the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or such Issuing
Bank with interest thereon, for each day from and including the date such amount
is distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation (including without limitation the Overnight Foreign
Currency Rate in the case of Loans denominated in a Foreign Currency).


                    (e)
If any Lender shall fail to make any payment required to be made by it pursuant
to Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(d) or 9.03(c), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), (i) apply any amounts thereafter received by the
Administrative Agent for the account of such Lender and for the benefit of the
Administrative Agent, the Swingline Lender or the relevant Issuing Bank to
satisfy such Lender’s obligations to it under such Section until all such
unsatisfied obligations are fully paid and/or (ii) hold any such amounts
in a segregated account over which the Administrative Agent shall have
exclusive control as cash collateral for, and application to, any future
funding obligations of such Lender under any such Section; in the case of each
of clauses (i) and (ii) above, in any order as determined by the
Administrative Agent in its discretion.


                    SECTION
2.19. Mitigation
Obligations; Replacement of Lenders. (a) If any
Lender requests compensation under Section 2.15, or if any Borrower is
required to pay any Indemnified Taxes or additional amounts to any Lender or
any Governmental Authority for the account of any Lender pursuant to
Section 2.17, then such Lender shall use reasonable efforts to designate a
different lending 


44





office for funding or booking its Loans hereunder or to assign its
rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to
Section 2.15 or 2.17, as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender. The Company hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in connection
with any such designation or assignment.


                    (b)
If (i) any Lender requests compensation under Section 2.15,
(ii) any Borrower is required to pay any Indemnified Taxes or additional
amounts to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 2.17 or (iii) any Lender becomes a
Defaulting Lender, then the Company may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to assign
and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights (other
than its existing rights to payments pursuant to Sections 2.15 or 2.17)
and obligations under the Loan Documents to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Company shall have received the
prior written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of
an amount equal to the outstanding principal of its Loans and participations in
LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder, from the assignee (to the extent
of such outstanding principal and accrued interest and fees) or the Company (in
the case of all other amounts) and (iii) in the case of any such
assignment resulting from a claim for compensation under Section 2.15 or
payments required to be made pursuant to Section 2.17, such assignment
will result in a reduction in such compensation or payments. A Lender shall not
be required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
Company to require such assignment and delegation cease to apply.


                    SECTION
2.20. Expansion
Option. The Company may from time to time elect to
increase the Commitments or enter into one or more tranches of term loans (each
an “Incremental Term Loan”), in each case in minimum increments of
$10,000,000 so long as, after giving effect thereto, the aggregate amount of
such increases and all such Incremental Term Loans does not exceed $75,000,000.
The Company may arrange for any such increase or tranche to be provided by one
or more Lenders (each Lender so agreeing to an increase in its Commitment, or
to participate in such Incremental Term Loans, an “Increasing Lender”),
or by one or more new banks, financial institutions or other entities (each
such new bank, financial institution or other entity, an “Augmenting Lender”;
provided that no Ineligible Institution may be an Augmenting Lender),
which agree to increase their existing Commitments, or to participate in such
Incremental Term Loans, or extend Commitments, as the case may be; provided
that (i) each Augmenting Lender, shall be subject to the approval of the
Company and the Administrative Agent and (ii) (x) in the case of an
Increasing Lender, the Company and such Increasing Lender execute an agreement
substantially in the form of Exhibit C hereto, and (y) in the
case of an Augmenting Lender, the Company and such Augmenting Lender execute an
agreement substantially in the form of Exhibit D hereto. No consent
of any Lender (other than the Lenders participating in the increase or any
Incremental Term Loan) shall be required for any increase in Commitments or
Incremental Term Loan pursuant to this Section 2.20. Increases and new
Commitments and Incremental Term Loans created pursuant to this
Section 2.20 shall become effective on the date agreed by the Company, the
Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders
and the Administrative Agent shall notify each Lender thereof. Notwithstanding
the foregoing, no increase in the Commitments (or in the Commitment of any
Lender) or tranche of Incremental Term Loans shall become effective under this
paragraph unless, (i) on the proposed date of the effectiveness of such
increase or Incremental Term Loans, (A) the conditions set forth in
paragraphs (a) and (b) of Section 4.02 shall be satisfied or
waived by the Required 


45





Lenders and the Administrative Agent shall have received a certificate
to that effect dated such date and executed by a Financial Officer of the
Company and (B) the Company shall be in compliance (on a pro forma
basis reasonably acceptable to the Administrative Agent) with the covenants
contained in Section 6.11 and (ii) the Administrative Agent shall
have received documents consistent with those delivered on the Effective Date
as to the organizational power and authority of the Borrowers to borrow
hereunder after giving effect to such increase. On the effective date of any
increase in the Commitments or any Incremental Term Loans being made,
(i) each relevant Increasing Lender and Augmenting Lender shall make
available to the Administrative Agent such amounts in immediately available
funds as the Administrative Agent shall determine, for the benefit of the other
Lenders, as being required in order to cause, after giving effect to such
increase and the use of such amounts to make payments to such other Lenders,
each Lender’s portion of the outstanding Revolving Loans of all the Lenders to
equal its Applicable Percentage of such outstanding Revolving Loans, and
(ii) except in the case of any Incremental Term Loans, the Borrowers shall
be deemed to have repaid and reborrowed all outstanding Revolving Loans as of
the date of any increase in the Commitments (with such reborrowing to consist
of the Types of Revolving Loans, with related Interest Periods if applicable,
specified in a notice delivered by the applicable Borrower, or the Company on
behalf of the applicable Borrower, in accordance with the requirements of
Section 2.03). The deemed payments made pursuant to clause (ii) of
the immediately preceding sentence shall be accompanied by payment of all
accrued interest on the amount prepaid and, in respect of each Eurocurrency
Loan, shall be subject to indemnification by the Borrowers pursuant to the
provisions of Section 2.16 if the deemed payment occurs other than on the
last day of the related Interest Periods. The Incremental Term Loans
(a) shall rank pari passu in right of payment with the Revolving
Loans, (b) shall not mature earlier than the Maturity Date (but may have
amortization prior to such date) and (c) shall be treated substantially
the same as (and in any event no more favorably than) the Revolving Loans; provided
that (i) the terms and conditions applicable to any tranche of Incremental
Term Loans maturing after the Maturity Date may provide for material additional
or different financial or other covenants or prepayment requirements applicable
only during periods after the Maturity Date and (ii) the Incremental Term
Loans may be priced differently than the Revolving Loans. Incremental Term
Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental
Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan
Documents, executed by the Borrowers, each Increasing Lender participating in
such tranche, each Augmenting Lender participating in such tranche, if any, and
the Administrative Agent. The Incremental Term Loan Amendment may, without the
consent of any other Lenders, effect such amendments to this Agreement and the
other Loan Documents as may be necessary or appropriate, in the reasonable
opinion of the Administrative Agent, to effect the provisions of this
Section 2.20. Nothing contained in this Section 2.20 shall
constitute, or otherwise be deemed to be, a commitment on the part of any
Lender to increase its Commitment hereunder, or provide Incremental Term Loans,
at any time.


                    SECTION
2.21. Market
Disruption. Notwithstanding the satisfaction of
all conditions referred to in Article II and Article IV with respect
to any Credit Event to be effected in any Foreign Currency, if (i) there
shall occur on or prior to the date of such Credit Event any change in national
or international financial, political or economic conditions or currency
exchange rates or exchange controls which would in the reasonable opinion of
the Administrative Agent, the relevant Issuing Bank (if such Credit Event is a
Letter of Credit) or the Required Lenders make it impracticable for the
Eurocurrency Borrowings or Letters of Credit comprising such Credit Event to be
denominated in the Agreed Currency specified by the applicable Borrower or
(ii) an Equivalent Amount of such currency is not readily calculable, then
the Administrative Agent shall forthwith give notice thereof to such Borrower,
the Lenders and, if such Credit Event is a Letter of Credit, the relevant
Issuing Bank, and such Credit Events shall not be denominated in such Agreed
Currency but shall, except as otherwise set forth in Section 2.07, be made
on the date of such Credit Event in Dollars, (a) if such Credit Event is a
Borrowing, in an aggregate principal amount equal to the Dollar Amount of the
aggregate principal amount specified in the related request for a Credit Event
or Interest Election Request, as the case may be, as ABR Loans, unless 


46





such Borrower notifies the Administrative Agent at least one Business
Day before such date that (i) it elects not to borrow on such date or
(ii) it elects to borrow on such date in a different Agreed Currency, as
the case may be, in which the denomination of such Loans would in the
reasonable opinion of the Administrative Agent and the Required Lenders be
practicable and in an aggregate principal amount equal to the Dollar Amount of
the aggregate principal amount specified in the related request for a Credit
Event or Interest Election Request, as the case may be or (b) if such
Credit Event is a Letter of Credit, in a face amount equal to the Dollar Amount
of the face amount specified in the related request or application for such
Letter of Credit, unless such Borrower notifies the Administrative Agent at
least one (1) Business Day before such date that (i) it elects not to
request the issuance of such Letter of Credit on such date or (ii) it
elects to have such Letter of Credit issued on such date in a different Agreed
Currency, as the case may be, in which the denomination of such Letter of
Credit would in the reasonable opinion of the relevant Issuing Bank, the
Administrative Agent and the Required Lenders be practicable and in face amount
equal to the Dollar Amount of the face amount specified in the related request
or application for such Letter of Credit, as the case may be.


                    SECTION
2.22. Judgment
Currency. If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due from any Borrower
hereunder in the currency expressed to be payable herein (the “specified
currency”) into another currency, the parties hereto agree, to the fullest
extent that they may effectively do so, that the rate of exchange used shall be
that at which in accordance with normal banking procedures the Administrative
Agent could purchase the specified currency with such other currency at the
Administrative Agent’s main New York City office on the Business Day preceding
that on which final, non-appealable judgment is given. The obligations of each
Borrower in respect of any sum due to any Lender or the Administrative Agent
hereunder shall, notwithstanding any judgment in a currency other than the
specified currency, be discharged only to the extent that on the Business Day
following receipt by such Lender or the Administrative Agent (as the case may
be) of any sum adjudged to be so due in such other currency such Lender or the
Administrative Agent (as the case may be) may in accordance with normal,
reasonable banking procedures purchase the specified currency with such other
currency. If the amount of the specified currency so purchased is less than the
sum originally due to such Lender or the Administrative Agent, as the case may
be, in the specified currency, each Borrower agrees, to the fullest extent that
it may effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify such Lender or the Administrative Agent, as the case may
be, against such loss, and if the amount of the specified currency so purchased
exceeds (a) the sum originally due to any Lender or the Administrative
Agent, as the case may be, in the specified currency and (b) any amounts
shared with other Lenders as a result of allocations of such excess as a
disproportionate payment to such Lender under Section 2.18, such Lender or
the Administrative Agent, as the case may be, agrees to remit such excess to
such Borrower.


                    SECTION
2.23. Designation
of Foreign Subsidiary Borrowers. The Company may
at any time and from time to time designate any Eligible Foreign Subsidiary as
a Foreign Subsidiary Borrower by delivery to the Administrative Agent of a
Borrowing Subsidiary Agreement executed by such Subsidiary and the Company and
the satisfaction of the other conditions precedent set forth in
Section 4.03, and upon such delivery and satisfaction such Subsidiary
shall for all purposes of this Agreement be a Foreign Subsidiary Borrower and a
party to this Agreement. Each Foreign Subsidiary Borrower shall remain a
Foreign Subsidiary Borrower until the Company shall have executed and delivered
to the Administrative Agent a Borrowing Subsidiary Termination with respect to
such Subsidiary, whereupon such Subsidiary shall cease to be a Foreign
Subsidiary Borrower and a party to this Agreement. Notwithstanding the
preceding sentence, no Borrowing Subsidiary Termination will become effective as
to any Foreign Subsidiary Borrower at a time when any principal of or interest
on any Loan to such Borrower shall be outstanding hereunder, provided
that such Borrowing Subsidiary Termination shall be effective to terminate the
right of such Foreign Subsidiary Borrower to make further 


47





Borrowings under this Agreement. As soon as practicable upon receipt of
a Borrowing Subsidiary Agreement, the Administrative Agent shall furnish a copy
thereof to each Lender.


                    SECTION
2.24. Senior
Debt. The Company hereby designates all Obligations now or hereinafter
incurred or otherwise outstanding, and agrees that the Obligations shall at all
times constitute, senior indebtedness and designated senior indebtedness, or
terms of similar import, which are entitled to the benefits of the
subordination provisions of all Subordinated Indebtedness.


                    SECTION
2.25. Defaulting
Lenders. Notwithstanding any provision of this Agreement to the contrary,
if any Lender becomes a Defaulting Lender, then the following provisions shall
apply for so long as such Lender is a Defaulting Lender:


          (a) fees
shall cease to accrue on the unfunded portion of the Commitment of such
Defaulting Lender pursuant to Section 2.12(a);


          (b) the Commitment
and Revolving Credit Exposure of such Defaulting Lender shall not be included
in determining whether all Lenders or the Required Lenders have taken or may
take any action hereunder (including any consent to any amendment, waiver or
other modification pursuant to Section 9.02); provided, that,
except as otherwise provided in Section 9.02, this clause (b) shall
not apply to the vote of a Defaulting Lender in the case of an amendment,
waiver or other modification requiring the consent of such Lender or each
Lender directly affected thereby;


          (c) if any
Swingline Exposure or LC Exposure exists at the time such Lender becomes a
Defaulting Lender then:


          (i) all or
any part of the Swingline Exposure and LC Exposure of such Defaulting Lender
shall be reallocated among the non-Defaulting Lenders in accordance with their
respective Applicable Percentages but only to the extent that the sum of all
non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting
Lender’s Swingline Exposure and LC Exposure does not exceed the total of all
non-Defaulting Lenders’ Commitments;


          (ii) if the
reallocation described in clause (i) above cannot, or can only
partially, be effected, the Company shall within one (1) Business Day
following notice by the Administrative Agent (x) first, prepay such
Swingline Exposure and (y) second, cash collateralize for the
benefit of the relevant Issuing Banks only the Borrowers’ obligations
corresponding to such Defaulting Lender’s LC Exposure (after giving effect to
any partial reallocation pursuant to clause (i) above) in accordance
with the procedures set forth in Section 2.06(j) for so long as such LC
Exposure is outstanding;


          (iii) if
the Company cash collateralizes any portion of such Defaulting Lender’s LC
Exposure pursuant to clause (ii) above, the Borrowers shall not be
required to pay any fees to such Defaulting Lender pursuant to
Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure
during the period such Defaulting Lender’s LC Exposure is cash collateralized;


          (iv) if the
LC Exposure of the non-Defaulting Lenders is reallocated pursuant to
clause (i) above, then the fees payable to the Lenders pursuant to
Section 2.12(a) and Section 2.12(b) shall be adjusted in accordance
with such non-Defaulting Lenders’ Applicable Percentages; and


48





          (v) if all
or any portion of such Defaulting Lender’s LC Exposure is neither reallocated
nor cash collateralized pursuant to clause (i) or (ii) above,
then, without prejudice to any rights or remedies of any Issuing Bank or any
other Lender hereunder, all letter of credit fees payable under
Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall
be payable to the relevant Issuing Banks until and to the extent that such LC
Exposure is reallocated and/or cash collateralized; and


          (d) so long
as such Lender is a Defaulting Lender, the Swingline Lender shall not be
required to fund any Swingline Loan and the Issuing Banks shall not be required
to issue, amend or increase any Letter of Credit, unless it is satisfied that
the related exposure and the Defaulting Lender’s then outstanding LC Exposure
will be 100% covered by the Commitments of the non-Defaulting Lenders and/or
cash collateral will be provided by the Company in accordance with
Section 2.25(c), and participating interests in any such newly made
Swingline Loan or any newly issued or increased Letter of Credit shall be
allocated among non-Defaulting Lenders in a manner consistent with Section 2.25(c)(i)
(and such Defaulting Lender shall not participate therein).


          If
(i) a Bankruptcy Event with respect to a Parent of any Lender shall occur
following the date hereof and for so long as such event shall continue or
(ii) the Swingline Lender or any Issuing Bank has a good faith belief that
any Lender has defaulted in fulfilling its obligations under one or more other
agreements in which such Lender commits to extend credit, the Swingline Lender
shall not be required to fund any Swingline Loan and no Issuing Bank shall be
required to issue, amend or increase any Letter of Credit, unless the Swingline
Lender or such Issuing Bank, as the case may be, shall have entered into
arrangements with the Company or such Lender, satisfactory to the Swingline Lender
or such Issuing Bank, as the case may be, to defease any risk to it in respect
of such Lender hereunder.


          In the
event that the Administrative Agent, the Company, the Swingline Lender and each
Issuing Bank each agrees that a Defaulting Lender has adequately remedied all
matters that caused such Lender to be a Defaulting Lender, then the Swingline
Exposure and LC Exposure of the Lenders shall be readjusted to reflect the
inclusion of such Lender’s Commitment and on such date such Lender shall purchase
at par such of the Loans of the other Lenders (other than Swingline Loans) as
the Administrative Agent shall determine may be necessary in order for such
Lender to hold such Loans in accordance with its Applicable Percentage.


ARTICLE III


Representations and Warranties


                    Each
Borrower represents and warrants to the Lenders that:


                    SECTION
3.01. Organization;
Powers; Subsidiaries. Each of the Company and its Material Subsidiaries is
duly organized, validly existing and in good standing (to the extent such
concept is applicable in the relevant jurisdiction) under the laws of the
jurisdiction of its organization, has all requisite power and authority to
carry on its business as now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, is qualified to do business in, and is in good
standing (to the extent such concept is applicable) in, every jurisdiction
where such qualification is required. Schedule 3.01 hereto (as
supplemented from time to time) identifies each Subsidiary, noting whether such
Subsidiary is a Material Subsidiary, the jurisdiction of its incorporation or
organization, as the case may be, the percentage of issued and outstanding
shares of each class of its capital stock or other equity interests owned by
the Company and the other Subsidiaries and, if such percentage is not 100%
(excluding directors’ qualifying shares as required by law), a description of
each class issued and outstanding. All of the outstanding shares of 


49





capital stock and other equity interests of each Subsidiary are validly
issued and outstanding and fully paid and nonassessable and all such shares and
other equity interests indicated on Schedule 3.01 as owned by the
Company or another Subsidiary are owned, beneficially and of record, by the
Company or any Subsidiary free and clear of all Liens. Other than pursuant to
employee compensation plans or in connection with Permitted Acquisitions, there
are no outstanding commitments or other obligations of the Company or any
Material Subsidiary to issue, and no options, warrants or other rights of any
Person to acquire, any shares of any class of capital stock or other equity
interests of the Company or any Material Subsidiary.


                    SECTION
3.02. Authorization;
Enforceability. The Transactions are within each Loan Party’s corporate
powers and have been duly authorized by all necessary corporate and, if
required, shareholder action. The Loan Documents to which each Loan Party is a
party have been duly executed and delivered by such Loan Party and constitute a
legal, valid and binding obligation of such Loan Party, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights generally
and subject to general principles of equity, regardless of whether considered
in a proceeding in equity or at law. 


                    SECTION
3.03. Governmental
Approvals; No Conflicts. The Transactions (a) do not require any
consent or approval of, registration or filing with, or any other action by,
any Governmental Authority, except such as have been obtained or made and are
in full force and effect, (b) will not violate any applicable law or
regulation or the charter, by-laws or other organizational documents of any
Borrower or any of the Material Subsidiaries or any order of any Governmental
Authority, (c) will not violate or result in a default under any
indenture, agreement or other instrument binding upon any Borrower or any of
the Material Subsidiaries or its assets, or give rise to a right thereunder to
require any payment to be made by any Borrower or any of the Material
Subsidiaries, and (d) will not result in the creation or imposition of any
Lien on any asset of any Borrower or any of the Material Subsidiaries.


                    SECTION
3.04. Financial
Condition; No Material Adverse Change. (a) The Company has heretofore
furnished to the Lenders its consolidated balance sheet and statements of
income, stockholders equity and cash flows (i) as of and for the fiscal
year ended September 28, 2013 reported on by KMPG LLP, independent public
accountants and (ii) as of and for the fiscal quarter and the portion of
the fiscal year ended December 28, 2013, March 29, 2014 and
June 28, 2014, certified by its chief financial officer. Such financial
statements present fairly, in all material respects, the financial position and
results of operations and cash flows of the Company and its consolidated
Subsidiaries as of such dates and for such periods in accordance with GAAP,
subject to year-end audit adjustments and the absence of footnotes in the case
of the statements referred to in clause (ii) above.


                    (b)
Since September 28, 2013, there has been no material adverse change in the
business, assets, operations or condition, financial or otherwise, of the
Company and its Subsidiaries, taken as a whole.


                    SECTION
3.05. Properties.
(a) Each of the Company and its Material Subsidiaries has good title to, or
valid leasehold interests in, all its real and personal property material to
its business, except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes. 


                    (b)
Each of the Company and its Subsidiaries owns, or is licensed to use, all
trademarks, tradenames, copyrights, patents and other intellectual property
material to its business, and the use thereof by the Company and its
Subsidiaries does not, to their knowledge, infringe upon the rights of any
other Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.


50





                    SECTION
3.06. Litigation
and Environmental Matters. (a) There are no actions, suits, proceedings or
investigations by or before any arbitrator or Governmental Authority pending
against or, to the knowledge of any Borrower, threatened against or affecting
the Company or any of its Subsidiaries (i) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect or (ii) that involve this Agreement or
the Transactions. There are no labor controversies pending against or, to the
knowledge of the Company, threatened against or affecting the Company or any of
its Subsidiaries (i) which could reasonably be expected, individually or
in the aggregate, to result in a Material Adverse Effect, or (ii) that
involve this Agreement or the Transactions.


                    (b) Except with respect to any other matters that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Company nor any of its Subsidiaries (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law,
(ii) has become subject to any Environmental Liability, (iii) has
received notice of any claim with respect to any Environmental Liability or
(iv) knows of any basis for any Environmental Liability.


                    SECTION
3.07. Compliance
with Laws and Agreements. Each of the Company and its Subsidiaries is in
compliance with all laws, regulations and orders of any Governmental Authority
applicable to it or its property and all indentures, agreements and other
instruments binding upon it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.


                    SECTION
3.08. Investment
Company Status. Neither the Company nor any of its Subsidiaries is an
“investment company” as defined in, or subject to regulation under, the
Investment Company Act of 1940.


                    SECTION
3.09. Taxes.
Each of the Company and its Subsidiaries has timely filed or caused to be filed
all Tax returns and reports required to have been filed and has paid or caused
to be paid all Taxes required to have been paid by it, except (a) Taxes
that are being contested in good faith by appropriate proceedings and for which
the Company or such Subsidiary, as applicable, has set aside on its books
adequate reserves or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.


                    SECTION
3.10. ERISA.
No ERISA Event has occurred or is reasonably expected to occur that, when taken
together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse
Effect. 


                    SECTION
3.11. Disclosure.
The Company has disclosed to the Lenders all material agreements, instruments
and corporate or other restrictions to which it or any of its Subsidiaries is
subject, and all other matters known to it, that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect.
Neither the Information Memorandum nor any of the other reports, financial
statements, certificates or other information furnished by or on behalf of the
Company or any Subsidiary to the Administrative Agent or any Lender in
connection with the negotiation of this Agreement or delivered hereunder (as
modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected
financial information, the Borrowers represent only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the
time. 


51





                    SECTION
3.12. Federal Reserve Regulations. No part of the proceeds of any Loan
have been used or will be used, whether directly or indirectly, for any purpose
that entails a violation of any of the Regulations of the Board, including Regulations
T, U and X.


                    SECTION
3.13. Liens. There are no Liens on any of the real or personal
properties of the Company or any Subsidiary except for Liens permitted by
Section 6.02.


                    SECTION
3.14. No Default. Each Borrower is in full compliance with this Agreement and no Default or
Event of Default has occurred and is continuing.


                    SECTION
3.15. No Burdensome Restrictions. On the date hereof, no Borrower is
subject to any Burdensome Restrictions except Burdensome Restrictions permitted
under Section 6.08.


                    SECTION
3.16. Anti-Corruption Laws and Sanctions. The Company has implemented
and maintains in effect policies and procedures designed to ensure compliance
by the Company, its Subsidiaries and their respective directors, officers,
employees and agents with Anti-Corruption Laws and applicable Sanctions, and
the Company, its Subsidiaries and, to the knowledge of the Company, their
respective officers, employees, directors and (other than with respect to
matters publicly disclosed in the Company’s filings with the SEC prior to the
Effective Date) agents, are in compliance with Anti-Corruption Laws and
applicable Sanctions in all material respects and, in the case of any Foreign
Subsidiary Borrower, is not knowingly engaged in any activity that could
reasonably be expected to result in such Borrower being designated as a
Sanctioned Person. None of (a) the Company, any Subsidiary or to the knowledge
of the Company or such Subsidiary any of their respective directors, officers
or employees, or (b) to the knowledge of the Company, any agent of the Company
or any Subsidiary that will act in any capacity in connection with or benefit
from the credit facility established hereby, is a Sanctioned Person. No
Borrowing or Letter of Credit, use of proceeds or other Transactions will
violate Anti-Corruption Laws or applicable Sanctions.


ARTICLE IV


Conditions


                    SECTION
4.01. Effective Date. The obligations of the Lenders to make Loans and
of the Issuing Banks to issue Letters of Credit hereunder shall not become
effective until the date on which each of the following conditions is satisfied
(or waived in accordance with Section 9.02):


	
  

 	
  

 
	
  

 	
           (a)  The Administrative Agent (or its counsel)
 shall have received from (i) each party hereto either (A) a
 counterpart of this Agreement signed on behalf of such party or
 (B) written evidence satisfactory to the Administrative Agent (which may
 include telecopy or electronic transmission of a signed signature page of
 this Agreement) that such party has signed a counterpart of this Agreement
 and (ii) each initial Subsidiary Guarantor (if any) either (A) a
 counterpart of the Subsidiary Guaranty signed on behalf of such Subsidiary
 Guarantor or (B) written evidence satisfactory to the Administrative
 Agent (which may include telecopy or electronic transmission of a signed
 signature page of the Subsidiary Guaranty) that such Subsidiary Guarantor has
 signed a counterpart of the Subsidiary Guaranty.

 
	
  

 	
  

 
	
  

 	
           (b)  The
 Administrative Agent shall have received a favorable written opinion
 (addressed to the Administrative Agent and the Lenders and dated the
 Effective Date) of Faegre Baker Daniels LLP, special counsel for the initial
 Loan Parties, covering such matters relating to the Loan Parties, the Loan
 Documents or the Transactions as the Administrative Agent shall reasonably
 request. The Company hereby requests such counsel to deliver such opinion.

 


52








	
  

 	
  

 
	
  

 	
           (c)  The
 Lenders shall have received (i) satisfactory audited consolidated
 financial statements of the Company for the two most recent fiscal years
 ended prior to the Effective Date as to which such financial statements are
 available, (ii) satisfactory unaudited interim consolidated financial
 statements of the Company for each quarterly period ended subsequent to the
 date of the latest financial statements delivered pursuant to
 clause (i) of this paragraph as to which such financial statements
 are publicly available and (iii) satisfactory financial statement
 projections through and including the Company’s 2019 fiscal year, together
 with such information as the Administrative Agent and the Lenders shall
 reasonably request (including, without limitation, a detailed description of
 the assumptions used in preparing such projections).

 
	
  

 	
  

 
	
  

 	
           (d)  The
 Administrative Agent shall have received such documents and certificates as
 the Administrative Agent or its counsel may reasonably request relating to
 the organization, existence and good standing of the initial Loan Parties,
 the authorization of the Transactions and any other legal matters relating to
 such Loan Parties, the Loan Documents or the Transactions, all in form and
 substance satisfactory to the Administrative Agent and its counsel and as
 further described in the list of closing documents attached as Exhibit E.

 
	
  

 	
  

 
	
  

 	
           (e)  The
 Administrative Agent shall have received a certificate, dated the Effective
 Date and signed by the President, a Vice President or a Financial Officer of
 the Company, confirming compliance with the conditions set forth in
 paragraphs (a) and (b) of Section 4.02.

 
	
  

 	
  

 
	
  

 	
           (f)  The
 Administrative Agent shall have received evidence satisfactory to it that the
 Existing Credit Agreement shall have been terminated and cancelled and all
 indebtedness thereunder shall have been fully repaid (except to the extent
 being so repaid with the initial Revolving Loans).

 
	
  

 	
  

 
	
  

 	
           (g)  The
 Administrative Agent shall have received all fees and other amounts due and
 payable on or prior to the Effective Date, including, to the extent invoiced,
 reimbursement or payment of all out-of-pocket expenses required to be
 reimbursed or paid by the Company hereunder.

 


The Administrative Agent shall notify the Company and the Lenders of
the Effective Date, and such notice shall be conclusive and binding.


                    SECTION
4.02. Each Credit Event. The obligation of each Lender to make a Loan on
the occasion of any Borrowing, and of the Issuing Banks to issue, amend, renew
or extend any Letter of Credit, is subject to the satisfaction of the following
conditions:


	
  

 	
  

 
	
  

 	
           (a)  The
 representations and warranties of the Borrowers set forth in this Agreement
 (other than the representation and warranty set forth in Section 3.04(b))
 shall be true and correct on and as of the date of such Borrowing or the date
 of issuance, amendment, renewal or extension of such Letter of Credit, as
 applicable.

 
	
  

 	
  

 
	
  

 	
           (b)  At
 the time of and immediately after giving effect to such Borrowing or the
 issuance, amendment, renewal or extension of such Letter of Credit, as
 applicable, no Default shall have occurred and be continuing.

 
	
  

 	
  

 
	
  

 	
           (c)  No
 law or regulation shall prohibit, and no order, judgment or decree of any
 Governmental Authority shall enjoin, prohibit or restrain, any Lender from
 making the requested Loan or the relevant Issuing Bank or any Lender from
 issuing, renewing, extending or increasing 

 


53








	
  

 	
  

 
	
  

 	
 the face amount of or participating in the Letter of Credit requested
 to be issued, renewed, extended or increased.

 


Each Borrowing and each issuance, amendment, renewal or extension of a
Letter of Credit shall be deemed to constitute a representation and warranty by
the Borrowers on the date thereof as to the matters specified in
paragraphs (a) and (b) of this Section.


                    SECTION
4.03. Designation of a Foreign Subsidiary Borrower. The designation of a
Foreign Subsidiary Borrower pursuant to Section 2.23 is subject to the
condition precedent that the Company or such proposed Foreign Subsidiary
Borrower shall have furnished or caused to be furnished to the Administrative
Agent:


	
  

 	
  

 
	
  

 	
           (a)  Copies,
 certified by the Secretary or Assistant Secretary of such Subsidiary, of its
 Board of Directors’ resolutions (and resolutions of other bodies, if any are
 deemed necessary by counsel for the Administrative Agent) approving the
 Borrowing Subsidiary Agreement and any other Loan Documents to which such
 Subsidiary is becoming a party and such documents and certificates as the
 Administrative Agent or its counsel may reasonably request relating to the
 organization, existence and good standing of such Subsidiary;

 
	
  

 	
  

 
	
  

 	
           (b)  An
 incumbency certificate, executed by the Secretary or Assistant Secretary of
 such Subsidiary, which shall identify by name and title and bear the
 signature of the officers of such Subsidiary authorized to request Borrowings
 hereunder and sign the Borrowing Subsidiary Agreement and the other Loan
 Documents to which such Subsidiary is becoming a party, upon which
 certificate the Administrative Agent and the Lenders shall be entitled to
 rely until informed of any change in writing by the Company or such
 Subsidiary;

 
	
  

 	
  

 
	
  

 	
           (c)  Opinions
 of counsel to such Subsidiary, in form and substance reasonably satisfactory
 to the Administrative Agent and its counsel, with respect to the laws of its
 jurisdiction of organization and such other matters as are reasonably
 requested by counsel to the Administrative Agent and addressed to the Administrative
 Agent and the Lenders; and

 
	
  

 	
  

 
	
  

 	
           (d)  Any
 promissory notes requested by any Lender, and any other instruments and
 documents reasonably requested by the Administrative Agent.

 


ARTICLE V


Affirmative Covenants


                    Until
the Commitments have expired or been terminated and the principal of and
interest on each Loan and all fees payable hereunder shall have been paid in
full and all Letters of Credit shall have expired or terminated, in each case,
without any pending draw, and all LC Disbursements shall have been reimbursed,
the Company covenants and agrees with the Lenders that:


                    SECTION
5.01. Financial Statements and Other Information. The Company will
furnish to the Administrative Agent and each Lender:


	
  

 	
  

 
	
  

 	
           (a)  within
 ninety (90) days after the end of each fiscal year of the Company, its
 audited consolidated balance sheet and related statements of operations,
 stockholders’ equity and cash flows as of the end of and for such year,
 setting forth in each case in comparative form the figures for the previous
 fiscal year, all reported on by KPMG LLP or other independent public
 accountants of recognized national standing (without a “going concern” or
 like qualification or 

 


54








	
  

 	
  

 
	
  

 	
 exception and without any qualification or exception as to the
 scope of such audit) to the effect that such consolidated financial
 statements present fairly in all material respects the financial condition
 and results of operations of the Company and its consolidated Subsidiaries on
 a consolidated basis in accordance with GAAP consistently applied;

 
	
  

 	
  

 
	
  

 	
           (b)  within
 forty-five (45) days after the end of each of the first three fiscal
 quarters of each fiscal year of the Company, its consolidated balance sheet
 and related statements of operations, stockholders’ equity and cash flows as
 of the end of and for such fiscal quarter and the then elapsed portion of the
 fiscal year, setting forth in each case in comparative form the figures for
 the corresponding period or periods of (or, in the case of the balance sheet,
 as of the end of) the previous fiscal year, all certified by one of its
 Financial Officers as presenting fairly in all material respects the
 financial condition and results of operations of the Company and its consolidated
 Subsidiaries on a consolidated basis in accordance with GAAP consistently
 applied, subject to normal year-end audit adjustments and the absence of
 footnotes;

 
	
  

 	
  

 
	
  

 	
           (c)  concurrently
 with any delivery of financial statements under clause (a) or
 (b) above, a certificate of a Financial Officer of the Company
 substantially in the form of Exhibit H hereto (i) certifying as
 to whether a Default has occurred and, if a Default has occurred, specifying
 the details thereof and any action taken or proposed to be taken with respect
 thereto, (ii) setting forth reasonably detailed calculations
 demonstrating compliance with Section 6.11 and (iii) stating
 whether any change in GAAP or in the application thereof has occurred since
 the date of the audited financial statements referred to in Section 3.04
 and, if any such change has occurred, specifying the effect of such change on
 the financial statements accompanying such certificate; and

 
	
  

 	
  

 
	
  

 	
           (d)  promptly
 following any request therefor, such other information regarding the
 operations, business affairs and financial condition of the Company or any
 Subsidiary, or compliance with the terms of this Agreement, as the
 Administrative Agent or any Lender may reasonably request.

 


Documents required to be delivered pursuant to clauses (a) and
(b) of this Section 5.01 may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date on which such
documents are filed for public availability on the SEC’s Electronic Data Gathering
and Retrieval System; provided that the Company shall notify (which may be by
facsimile or electronic mail) the Administrative Agent of the filing of any
such documents and provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents. Notwithstanding
anything contained herein, in every instance the Company shall be required to
provide paper copies of the compliance certificates required by clause (c)
of this Section 5.01 to the Administrative Agent.


                    SECTION
5.02. Notices of Material Events. The Company will furnish to the
Administrative Agent and each Lender prompt written notice of the following:


	
  

 	
  

 
	
  

 	
           (a)  the
 occurrence of any Default;

 
	
  

 	
  

 
	
  

 	
           (b)  the
 filing or commencement of any action, suit or proceeding by or before any
 arbitrator or Governmental Authority against or affecting the Company or any
 Subsidiary thereof that, if adversely determined, could reasonably be
 expected to result in a Material Adverse Effect;

 
	
  

 	
  

 
	
  

 	
           (c)  the
 occurrence of any ERISA Event that, alone or together with any other ERISA
 Events that have occurred, could reasonably be expected to result in a
 Material Adverse Effect; and

 


55








	
  

 	
  

 
	
  

 	
           (d)  any
 other development that results in, or could reasonably be expected to result
 in, a Material Adverse Effect.

 


Each notice delivered under this Section shall be accompanied by a
statement of a Financial Officer or other executive officer of the Company
setting forth the details of the event or development requiring such notice and
any action taken or proposed to be taken with respect thereto.


                    SECTION
5.03. Existence; Conduct of Business. The Company will, and will cause
each of its Material Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, qualifications, licenses, permits, privileges,
franchises, governmental authorizations and intellectual property rights
material to the conduct of its business, and maintain all requisite authority
to conduct its business in each jurisdiction in which its business is
conducted; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.03.


                    SECTION
5.04. Payment of Obligations. The Company will, and will cause each of
its Subsidiaries to, pay its obligations, including Tax liabilities, that, if
not paid, could result in a Material Adverse Effect before the same shall
become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings,
(b) the Company or such Subsidiary has set aside on its books adequate
reserves with respect thereto in accordance with GAAP and (c) the failure
to make payment pending such contest could not reasonably be expected to result
in a Material Adverse Effect.


                    SECTION
5.05. Maintenance of Properties; Insurance. The Company will, and will
cause each of its Material Subsidiaries to, (a) keep and maintain all
property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, and (b) maintain, with
financially sound and reputable insurance companies, insurance in such amounts
and against such risks as are customarily maintained by companies engaged in
the same or similar businesses operating in the same or similar locations.


                    SECTION
5.06. Books and Records; Inspection Rights. The Company will, and will
cause each of its Material Subsidiaries to, keep proper books of record and
account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Company will, and
will cause each of its Material Subsidiaries to, permit any representatives
designated by the Administrative Agent or any Lender, upon reasonable prior
notice, to visit and inspect its properties, to examine and make extracts from
its books and records, and to discuss its affairs, finances and condition with
its officers and independent accountants, all at such reasonable times and as
often as reasonably requested.


                    SECTION
5.07. Compliance with Laws and Material Contractual Obligations. The
Company will, and will cause each of its Subsidiaries to, (i) comply with
all laws, rules, regulations and orders of any Governmental Authority
applicable to it or its property (including without limitation Environmental
Laws) and (ii) perform in all material respects its obligations under
material agreements to which it is a party, in each case except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. The Company will maintain in
effect and enforce policies and procedures designed to ensure compliance in all
material respects by the Company, its Subsidiaries and their respective
directors, officers, employees and agents with Anti-Corruption Laws and
applicable Sanctions.


                    SECTION
5.08. Use of Proceeds. The proceeds of the Loans will be used only to
finance the working capital needs, and for general corporate purposes
(including Permitted Acquisitions 


56





and Restricted Payments as permitted hereunder), of the Company and its
Subsidiaries in the ordinary course of business. No part of the proceeds of any
Loan will be used, whether directly or indirectly, for any purpose that entails
a violation of any of the Regulations of the Board, including Regulations T, U
and X. No Borrower will request any Borrowing or Letter of Credit, and no
Borrower shall use, and the Company shall ensure that its Subsidiaries and its
or their respective directors, officers, employees and agents shall not use,
the proceeds of any Borrowing or Letter of Credit (i) in furtherance of an
offer, payment, promise to pay, or authorization of the payment or giving of
money, or anything else of value, to any Person in violation of any
Anti-Corruption Laws, (ii) for the purpose of funding, financing or
facilitating any activities, business or transaction of or with any Sanctioned
Person, or in any Sanctioned Country or (iii) in any manner that would result
in the violation of any Sanctions applicable to any party hereto.


                    SECTION
5.09. Subsidiary Guaranty. As promptly as possible but in any event
within thirty (30) days (or such later date as may be agreed upon by the
Administrative Agent) after any Person becomes a Subsidiary or any Subsidiary
qualifies independently as, or is designated by the Company or the
Administrative Agent as, a Material Subsidiary, the Company shall provide the
Administrative Agent with written notice thereof setting forth information in
reasonable detail describing the material assets of such Person and shall cause
each such Material Subsidiary (other than Affected Foreign Subsidiaries and
Foreign Subsidiary Borrowers) to deliver to the Administrative Agent a
Subsidiary Guaranty (or a joinder to the Subsidiary Guaranty in the form contemplated
thereby) pursuant to which such Material Subsidiary agrees to be bound by the
terms and provisions thereof, such Subsidiary Guaranty (or joinder thereto) to
be accompanied by appropriate corporate resolutions, other corporate
documentation and legal opinions in form and substance reasonably satisfactory
to the Administrative Agent and its counsel.


ARTICLE VI


Negative Covenants


                    Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated, in each case, without any
pending draw, and all LC Disbursements shall have been reimbursed, the Company
covenants and agrees with the Lenders that:


                    SECTION
6.01. Indebtedness. The Company will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Indebtedness,
except:


	
  

 	
  

 
	
  

 	
           (a)  the
 Obligations and any other Indebtedness created under the Loan Documents;

 
	
  

 	
  

 
	
  

 	
           (b)  Indebtedness
 existing on the date hereof and set forth in Schedule 6.01 and
 extensions, renewals and replacements of any such Indebtedness with
 Indebtedness of a similar type that does not increase the outstanding
 principal amount thereof;

 
	
  

 	
  

 
	
  

 	
           (c)  Indebtedness
 of the Company to any Subsidiary and of any Subsidiary to the Company or any
 other Subsidiary; provided that Indebtedness permitted under this
 Section 6.01(c) of any Subsidiary that is not a Loan Party to any Loan
 Party shall be subject to the proviso in Section 6.04(d);

 
	
  

 	
  

 
	
  

 	
           (d)  Guarantees
 permitted by clause (f) below and Guarantees by (i) any Loan Party
 of Indebtedness of any other Loan Party, (ii) any Subsidiary of
 Indebtedness of any Loan Party and (iii) and by any Subsidiary that is
 not a Loan Party of Indebtedness of any other Subsidiary that is not a Loan
 Party;

 


57








	
  

 	
  

 
	
  

 	
           (e)  Indebtedness
 of the Company or any Subsidiary incurred to finance the acquisition,
 construction or improvement of any fixed or capital assets, including Capital
 Lease Obligations and any Indebtedness assumed in connection with the
 acquisition of any such assets or secured by a Lien on any such assets prior
 to the acquisition thereof, and extensions, renewals and replacements of any such
 Indebtedness that do not increase the outstanding principal amount thereof; provided
 that (i) such Indebtedness is incurred prior to or within ninety
 (90) days after such acquisition or the completion of such construction
 or improvement and (ii) the aggregate principal amount of Indebtedness
 permitted by this clause (e) shall not exceed $15,000,000 at any time
 outstanding;

 
	
  

 	
  

 
	
  

 	
           (f)  Indebtedness
 of the Company or any Subsidiary as an account party or a guarantor in
 respect of trade and performance letters of credit, bankers’ acceptances,
 letters of guarantee and similar instruments, and obligations with respect to
 deposits and advances, all in the ordinary course of business;

 
	
  

 	
  

 
	
  

 	
           (g)  Indebtedness
 permitted under Sections 6.04(b) and 6.04(f);

 
	
  

 	
  

 
	
  

 	
           (h)  Indebtedness
 of the Company or any Subsidiary secured by a Lien on any asset of the
 Company or any Subsidiary (in addition to Indebtedness permitted by
 clauses (b) and (e) above); provided that the aggregate
 outstanding principal amount of Indebtedness permitted by this
 clause (h) shall not in the aggregate exceed $10,000,000 at any time;

 
	
  

 	
  

 
	
  

 	
           (i)  unsecured
 Indebtedness of the Company’s Subsidiaries in an aggregate principal amount
 not exceeding $15,000,000 at any time outstanding;

 
	
  

 	
  

 
	
  

 	
           (j)  Indebtedness
 secured by liens permitted by Section 6.02(c) so long as the aggregate
 outstanding principal amount of such Indebtedness does not exceed
 $15,000,000; and

 
	
  

 	
  

 
	
  

 	
           (k)  other
 unsecured Indebtedness of the Company so long as the Company is in compliance
 on a pro forma basis reasonably acceptable to the Administrative Agent
 with the covenants set forth in Section 6.11 both immediately before and
 after giving effect (including pro forma effect) to the incurrence
 thereof.

 


                    SECTION
6.02. Liens. The Company will not, and will not permit any Subsidiary
to, create, incur, assume or permit to exist any Lien on any property or asset
now owned or hereafter acquired by it, or assign or sell any income or revenues
(including accounts receivable) or rights in respect of any thereof, except:


	
  

 	
  

 
	
  

 	
           (a)  Permitted
 Encumbrances;

 
	
  

 	
  

 
	
  

 	
           (b)  any
 Lien on any property or asset of the Company or any Subsidiary existing on
 the date hereof and set forth in Schedule 6.02; provided
 that (i) such Lien shall not apply to any other property or asset of the
 Company or any Subsidiary and (ii) such Lien shall secure only those
 obligations which it secures on the date hereof and extensions, renewals and replacements
 thereof that do not increase the outstanding principal amount thereof;

 
	
  

 	
  

 
	
  

 	
           (c)  any
 Lien existing on any property or asset prior to the acquisition thereof by
 the Company or any Subsidiary or existing on any property or asset of any
 Person that becomes a Subsidiary after the date hereof prior to the time such
 Person becomes a Subsidiary; provided that (i) such Lien is not
 created in contemplation of or in connection with such acquisition or such
 Person becoming a Subsidiary, as the case may be, (ii) such Lien shall
 not apply to any other 

 


58








	
  

 	
  

 
	
  

 	
 property or assets of the Company or any Subsidiary and
 (iii) such Lien shall secure only those obligations which it secures on
 the date of such acquisition or the date such Person becomes a Subsidiary, as
 the case may be, and extensions, renewals and replacements thereof that do
 not increase the outstanding principal amount thereof;

 
	
  

 	
  

 
	
  

 	
           (d)  Liens
 on fixed or capital assets acquired, constructed or improved by the Company
 or any Subsidiary; provided that (i) such security interests
 secure Indebtedness permitted by clause (e) of Section 6.01,
 (ii) such security interests and the Indebtedness secured thereby are
 incurred prior to or within ninety (90) days after such acquisition or
 the completion of such construction or improvement, (iii) the
 Indebtedness secured thereby does not exceed the cost of acquiring,
 constructing or improving such fixed or capital assets and (iv) such
 security interests shall not apply to any other property or assets of the
 Company or any Subsidiary;

 
	
  

 	
  

 
	
  

 	
           (e)  Liens
 securing the Obligations, and any other Indebtedness created under, and in
 each case pursuant to, the Loan Documents; and

 
	
  

 	
  

 
	
  

 	
           (f)  Liens
 on assets of the Company and its Subsidiaries not otherwise permitted above
 so long as the aggregate principal amount of the Indebtedness subject to such
 Liens does not at any time exceed $10,000,000.

 


                    SECTION
6.03. Fundamental Changes and Asset Sales. (a) The Company will not, and
will not permit any Subsidiary to, merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
sell, transfer, lease or otherwise dispose of (in one transaction or in a
series of transactions) any of its assets, (including pursuant to a Sale and
Leaseback Transaction), or any of the Equity Interests of any of its
Subsidiaries (in each case, whether now owned or hereafter acquired), or
liquidate or dissolve, except that, if at the time thereof and immediately
after giving effect thereto no Default shall have occurred and be continuing:


	
  

 	
  

 
	
  

 	
           (i)   any
 Person may merge into the Company in a transaction in which the Company is
 the surviving corporation;

 
	
  

 	
  

 
	
  

 	
           (ii)  any
 Subsidiary may merge into a Loan Party in a transaction in which the
 surviving entity is such Loan Party (provided that any such merger involving
 the Company must result in the Company as the surviving entity);

 
	
  

 	
  

 
	
  

 	
           (iii) any
 Subsidiary may sell, transfer, lease or otherwise dispose of its assets to a
 Loan Party;

 
	
  

 	
  

 
	
  

 	
           (iv)  the
 Company and its Subsidiaries may (A) sell inventory in the ordinary
 course of business, (B) effect sales, trade-ins or dispositions of used
 equipment for value in the ordinary course of business consistent with past
 practice, (C) enter into licenses of technology in the ordinary course
 of business, and (D) make any other sales, transfers, leases or
 dispositions that, together with all other property of the Company and its Subsidiaries
 previously leased, sold or disposed of as permitted by this clause (D)
 during any fiscal year of the Company, does not exceed $15,000,000; and

 
	
  

 	
  

 
	
  

 	
           (v)  any
 Subsidiary may liquidate or dissolve if the Company determines in good faith that
 such liquidation or dissolution is in the best interests of the Company and
 is not materially disadvantageous to the Lenders; provided that any
 such merger involving a Person that is not a wholly owned Subsidiary
 immediately prior to such merger shall not be permitted unless also permitted
 by Section 6.04.

 


59








	
  

 
	
                     (b)  The
 Company will not, and will not permit any of its Subsidiaries to, engage to
 any material extent in any business other than businesses of the type
 conducted by the Company and its Subsidiaries on the date of execution of
 this Agreement and businesses reasonably related thereto.

 
	
  

 
	
                     (c)  The
 Company will not, nor will it permit any of its Subsidiaries to, change its
 fiscal year from the basis in effect on the Effective Date.

 


                    SECTION
6.04. Investments, Loans, Advances, Guarantees and Acquisitions. The
Company will not, and will not permit any of its Subsidiaries to, purchase,
hold or acquire (including pursuant to any merger with any Person that was not
a wholly owned Subsidiary prior to such merger) any capital stock, evidences of
indebtedness or other securities (including any option, warrant or other right
to acquire any of the foregoing) of, make or permit to exist any loans or
advances to, Guarantee any obligations of, or make or permit to exist any
investment or any other interest in, any other Person, or purchase or otherwise
acquire (in one transaction or a series of transactions) any Person or any
assets of any other Person constituting a business unit, except:


	
  

 	
  

 
	
  

 	
           (a)  Permitted
 Investments;

 
	
  

 	
  

 
	
  

 	
           (b)  Permitted
 Acquisitions (including any intercompany investments, loans and advances used
 to consummate Permitted Acquisitions);

 
	
  

 	
  

 
	
  

 	
           (c)  investments
 by the Company existing on the date hereof in the capital stock of its
 Subsidiaries;

 
	
  

 	
  

 
	
  

 	
           (d)  investments,
 loans or advances made by the Company in or to any Subsidiary (in addition to
 those specified in clauses (b) and (c) above) and investments,
 loans or advances made by any Subsidiary in or to the Company or any other
 Subsidiary (provided that not more than $10,000,000 in investments, loans or
 advances or capital contributions may be made and remain outstanding under
 this clause (d), during the term of this Agreement, by any Loan Party to
 a Subsidiary which is not a Loan Party);

 
	
  

 	
  

 
	
  

 	
           (e)  Guarantees
 constituting Indebtedness permitted by Section 6.01; and

 
	
  

 	
  

 
	
  

 	
           (f)  any
 other investment, loan or advance (other than acquisitions) so long as the
 aggregate amount of all such investments, loans and advances does not exceed
 $10,000,000 during the term of this Agreement.

 


                    SECTION
6.05. Swap Agreements. The Company will not, and will not permit any of
its Subsidiaries to, enter into any Swap Agreement, except (a) Swap
Agreements entered into to hedge or mitigate risks to which the Company or any
Subsidiary has actual exposure (other than those in respect of Equity Interests
of the Company or any of its Subsidiaries), and (b) Swap Agreements
entered into in order to effectively cap, collar or exchange interest rates
(from fixed to floating rates, from one floating rate to another floating rate
or otherwise) with respect to any interest-bearing liability or investment of
the Company or any Subsidiary.


                    SECTION
6.06. Transactions with Affiliates. The Company will not, and will not
permit any of its Subsidiaries to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) transactions in the ordinary course of business at
prices and on terms and conditions not less favorable to the Company or such Subsidiary
than could be obtained on an arm’s-length basis from unrelated third parties,
(b) transactions between or among the Company and its wholly 


60





owned Subsidiaries not involving any other Affiliate and (c)
transactions otherwise permitted by this Agreement.


                    SECTION
6.07. Restricted Payments. The Company will not, and will not permit any
of its Subsidiaries to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, except (a) the Company may declare and pay
dividends with respect to its Equity Interests payable solely in additional
shares of its common stock, (b) Subsidiaries may declare and pay dividends
ratably with respect to their Equity Interests, (c) the Company may make
Restricted Payments pursuant to and in accordance with stock option plans or
other benefit plans for management or employees of the Company and its
Subsidiaries and (d) the Company and its Subsidiaries may make any other
Restricted Payment so long as no Default or Event of Default has occurred and
is continuing prior to making such Restricted Payment or would arise after
giving effect (including pro forma effect) thereto and the aggregate amount of
such Restricted Payments during any fiscal year of the Company does not exceed
(i) $25,000,000, if at the time of and immediately after giving effect thereto,
the Leverage Ratio (recomputed on a pro forma basis as if such Restricted
Payment had occurred on the last day of the most recently ended fiscal quarter
of the Company for which financial statements are available) is less than 3.00
to 1.00 but is greater than or equal to 2.50 to 1.00 or (ii) $35,000,000, if at
the time of and immediately after giving effect thereto, the Leverage Ratio
(recomputed on a pro forma basis as if such Restricted Payment had occurred on
the last day of the most recently ended fiscal quarter of the Company for which
financial statements are available) is less than 2.50 to 1.00 but is greater
than or equal to 2.00 to 1.00; provided that, if at the time of and immediately
after giving effect thereto, the Leverage Ratio (recomputed on a pro forma
basis as if such Restricted Payment had occurred on the last day of the most
recently ended fiscal quarter of the Company for which financial statements are
available) is less than 2.00 to 1.00, there shall be no dollar limitation on
such Restricted Payments.


                    SECTION
6.08. Restrictive Agreements. The Company will not, and will not permit
any of its Subsidiaries to, directly or indirectly, enter into, incur or permit
to exist any agreement or other arrangement that prohibits, restricts or
imposes any condition upon (a) the ability of the Company or any
Subsidiary to create, incur or permit to exist any Lien upon any of its
property or assets, or (b) the ability of any Subsidiary to pay dividends
or other distributions with respect to holders of its Equity Interests or to
make or repay loans or advances to the Company or any other Subsidiary or to
Guarantee Indebtedness of the Company or any other Subsidiary; provided
that (i) the foregoing shall not apply to restrictions and conditions
imposed by law or by any Loan Document, (ii) the foregoing shall not apply
to customary restrictions and conditions contained in agreements relating to
the sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is to be sold and such sale is
permitted hereunder, (iii) clause (a) of the foregoing shall not
apply to restrictions or conditions imposed by any agreement relating to
secured Indebtedness permitted by this Agreement if such restrictions or
conditions apply only to the property or assets securing such Indebtedness and
(iv) clause (a) of the foregoing shall not apply to customary
provisions in leases and other contracts restricting the assignment thereof.


                    SECTION
6.09. Subordinated Indebtedness and Amendments to Subordinated Indebtedness
Documents. The Company will not, and will not permit any Subsidiary to,
directly or indirectly voluntarily prepay, defease or in substance defease,
purchase, redeem, retire or otherwise acquire, any Subordinated Indebtedness or
any Indebtedness from time to time outstanding under the Subordinated
Indebtedness Documents. Furthermore, the Company will not, and will not permit
any Subsidiary to, amend the Subordinated Indebtedness Documents relating to
any Subordinated Indebtedness or any document, agreement or instrument
evidencing any Indebtedness incurred pursuant to the Subordinated Indebtedness
Documents (or any replacements, substitutions, extensions or renewals thereof)
or pursuant to which such Indebtedness is issued where such amendment,
modification or supplement amends, modifies or adds any provision thereof in a
manner which (i) when taken as a whole,


61





is materially adverse to the Company, any Subsidiary and/or the Lenders
or (ii) is more onerous than the existing applicable provision in the
Subordinated Indebtedness Documents or the applicable provision in this
Agreement (except in each case to the extent permitted under the applicable
subordination agreement governing such Subordinated Indebtedness).


                    SECTION
6.10. Sale and Leaseback Transactions. The Company shall not, nor shall
it permit any Subsidiary to, enter into any Sale and Leaseback Transaction,
other than Sale and Leaseback Transactions in respect of which the net cash
proceeds received in connection therewith does not exceed $50,000,000 in the
aggregate during the term of this Agreement, determined on a consolidated basis
for the Company and its Subsidiaries.


                    SECTION
6.11. Financial Covenants. (a) Maximum Leverage Ratio. The
Company will not permit the ratio (the “Leverage Ratio”), determined as
of the end of each of its fiscal quarters ending on and after
September 27, 2014, of (i) Consolidated Total Indebtedness to (ii) Consolidated EBITDA for the period of four (4) consecutive
fiscal quarters ending with the end of such fiscal quarter, all calculated for
the Company and its Subsidiaries on a consolidated basis, to be greater than
3.00 to 1.00.


                    (b)
Minimum Interest Coverage Ratio. The Company will not permit the ratio
(the “Interest Coverage Ratio”), determined as of the end of each of its
fiscal quarters ending on and after September 27, 2014, of
(i) Consolidated EBITDA to (ii) Consolidated Interest Expense, in
each case for the period of four (4) consecutive fiscal quarters ending
with the end of such fiscal quarter, all calculated for the Company and its
Subsidiaries on a consolidated basis, to be less than 3.00 to 1.00.


ARTICLE VII


Events of Default


                    If any of the following events (“Events of
Default”) shall occur:


          (a)
any Borrower shall fail to pay any principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become
due and payable, whether at the due date thereof or at a date fixed for
prepayment thereof or otherwise;


          (b)
any Borrower shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in clause (a) of this Article)
payable under this Agreement, when and as the same shall become due and
payable, and such failure shall continue unremedied for a period of three
(3) Business Days;


          (c)
any representation or warranty made or deemed made by or on behalf of any
Borrower or any Subsidiary in or in connection with this Agreement or any other
Loan Document or any amendment or modification hereof or thereof or waiver
hereunder or thereunder, or in any report, certificate, financial statement or
other document furnished pursuant to or in connection with this Agreement or
any other Loan Document or any amendment or modification thereof or waiver
thereunder, shall prove to have been incorrect in any material respect when
made or deemed made;


          (d)
any Borrower shall fail to observe or perform any covenant, condition or
agreement contained in Section 5.02, 5.03 (with respect to any Borrower’s
existence), 5.08 or 5.09, in Article VI or in Article X;


62





          (e)
any Borrower or any Subsidiary Guarantor, as applicable, shall fail to observe
or perform any covenant, condition or agreement contained in this Agreement
(other than those specified in clause (a), (b) or (d) of this
Article) or any other Loan Document, and such failure shall continue unremedied
for a period of thirty (30) days after notice thereof from the
Administrative Agent to the Company (which notice will be given at the request
of any Lender);


          (f)
the Company or any Subsidiary shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any Material
Indebtedness, when and as the same shall become due and payable;


          (g)
any event or condition occurs that results in any Material Indebtedness
becoming due prior to its scheduled maturity or that enables or permits (with
or without the giving of notice, the lapse of time or both) the holder or
holders of any Material Indebtedness or any trustee or agent on its or their
behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its
scheduled maturity; provided that this clause (g) shall not apply
to secured Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness;


          (h)
an involuntary proceeding shall be commenced or an involuntary petition shall
be filed seeking (i) liquidation, reorganization or other relief in
respect of any Borrower or any Material Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect or
(ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for any Borrower or any Material Subsidiary or
for a substantial part of its assets, and, in any such case, such proceeding or
petition shall continue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered;


          (i)
any Borrower or any Material Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other
relief under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the institution
of, or fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (h) of this Article, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for any Borrower or any Material Subsidiary or
for a substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding,
(v) make a general assignment for the benefit of creditors or
(vi) take any action for the purpose of effecting any of the foregoing;


          (j)
any Borrower or any Material Subsidiary shall become unable, admit in writing
its inability or fail generally to pay its debts as they become due;


          (k)
one or more judgments for the payment of money in an aggregate amount in excess
of $10,000,000 shall be rendered against the Company, any Subsidiary or any
combination thereof and the same shall remain undischarged for a period of
thirty (30) consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment creditor
to attach or levy upon any assets of the Company or any Subsidiary to enforce
any such judgment;


          (l)
an ERISA Event shall have occurred that, in the opinion of the Required
Lenders, when taken together with all other ERISA Events that have occurred,
could reasonably be expected to result in a Material Adverse Effect;


63





                    (m)
a Change in Control shall occur;


          (n)
the occurrence of any “default”, as defined in any Loan Document (other than
this Agreement) or the breach of any of the terms or provisions of any Loan
Document (other than this Agreement), which default or breach continues beyond
any period of grace therein provided; or


          (o)
the obligations of any Loan Party under any material provision of any Loan
Document for any reason ceases to be valid, binding and enforceable in
accordance with such provision (or the Company or any Subsidiary shall
challenge the enforceability of any Loan Document or shall assert in writing,
or engage in any action or inaction based on any such assertion, that any
provision of any of the Loan Documents has ceased to be or otherwise is not
valid, binding and enforceable in accordance with its terms);


then, and in every such event (other than an event with respect to the
Company described in clause (h) or (i) of this Article), and at any
time thereafter during the continuance of such event, the Administrative Agent
may, and at the request of the Required Lenders shall, by notice to the
Company, take either or both of the following actions, at the same or different
times: (i) terminate the Commitments, and thereupon the Commitments shall
terminate immediately, and (ii) declare the Loans then outstanding to be
due and payable in whole (or in part, in which case any principal not so
declared to be due and payable may thereafter be declared to be due and
payable), and thereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and all fees and other
Obligations of the Borrowers accrued hereunder and under the other Loan
Documents, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrowers; and in case of any event with respect to any Borrower described
in clause (h) or (i) of this Article, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other Obligations
accrued hereunder and under the other Loan Documents, shall automatically
become due and payable, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrowers. Upon the occurrence
and during the continuance of an Event of Default, the Administrative Agent
may, and at the request of the Required Lenders shall, exercise any rights and
remedies provided to the Administrative Agent under the Loan Documents or at
law or equity.


ARTICLE VIII


The Administrative Agent 


                    Each
of the Lenders and the Issuing Banks hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf, including execution of the other Loan
Documents, and to exercise such powers as are delegated to the Administrative
Agent by the terms of the Loan Documents, together with such actions and powers
as are reasonably incidental thereto.


                    The
bank serving as the Administrative Agent hereunder shall have the same rights
and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not the Administrative Agent, and such bank and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with Company or any Subsidiary or other Affiliate thereof as
if it were not the Administrative Agent hereunder.


                    The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in the Loan Documents. Without limiting the generality of
the foregoing, (a) the Administrative 


64





Agent shall not be subject to any fiduciary or other implied duties, regardless
of whether a Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action
or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing as directed by the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02), and (c) except as
expressly set forth in the Loan Documents, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Company or any of its Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary under the circumstances as provided in Section 9.02) or
in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default
unless and until written notice thereof is given to the Administrative Agent by
the Company or a Lender, and the Administrative Agent shall not be responsible
for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with any Loan Document,
(ii) the contents of any certificate, report or other document delivered
hereunder or in connection with any Loan Document, (iii) the performance
or observance of any of the covenants, agreements or other terms or conditions
set forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document or (v) the satisfaction of any condition set forth
in Article IV or elsewhere in any Loan Document, other than to confirm
receipt of items expressly required to be delivered to the Administrative
Agent.


                    The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Company), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.


                    The
Administrative Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.


                    Subject
to the appointment and acceptance of a successor Administrative Agent as
provided in this paragraph, the Administrative Agent may resign at any time by
notifying the Lenders, the Issuing Banks and the Company. Upon any such
resignation, the Required Lenders shall have the right, in consultation with
the Company, to appoint a successor. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Banks, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. The fees 


65





payable by any Borrower to a successor Administrative Agent shall be
the same as those payable to its predecessor unless otherwise agreed between
such Borrower and such successor. After the Administrative Agent’s resignation
hereunder, the provisions of this Article and Section 9.03 shall continue
in effect for the benefit of such retiring Administrative Agent, its sub-agents
and their respective Related Parties in respect of any actions taken or omitted
to be taken by any of them while it was acting as Administrative Agent.


                    Each
Lender acknowledges and agrees that the extensions of credit made hereunder are
commercial loans and letters of credit and not investments in a business
enterprise or securities. Each Lender further represents that it is engaged in
making, acquiring or holding commercial loans in the ordinary course of its
business and has, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into
this Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each
Lender shall, independently and without reliance upon the Administrative Agent
or any other Lender and based on such documents and information (which may
contain material, non-public information within the meaning of the United
States securities laws concerning the Company and its Affiliates) as it shall
from time to time deem appropriate, continue to make its own decisions in
taking or not taking action under or based upon this Agreement, any related
agreement or any document furnished hereunder or thereunder and in deciding
whether or to the extent to which it will continue as a lender or assign or
otherwise transfer its rights, interests and obligations hereunder.


                    None
of the Lenders, if any, identified in this Agreement as a Syndication Agent or
Co-Documentation Agent shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Without limiting the foregoing, none of such Lenders shall
have or be deemed to have a fiduciary relationship with any Lender. Each Lender
hereby makes the same acknowledgments with respect to the relevant Lenders in
their respective capacities as Syndication Agent or Co-Documentation Agents, as
applicable, as it makes with respect to the Administrative Agent in the
preceding paragraph.


ARTICLE IX


Miscellaneous


                    SECTION
9.01. Notices. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) below), all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as
follows:


	
  

 	
  

 
	
  

 	
           (i)  if
 to any Borrower, to it c/o MTS Systems Corporation, 14000 Technology
 Drive, Eden Prairie, Minnesota 55344, Attention of Andy Cebulla, Treasurer
 (Telecopy No. (952) 937-4515; Telephone
 No. (952) 937-4020);

 
	
  

 	
  

 
	
  

 	
           (ii)  if
 to the Administrative Agent, (A) in the case of Borrowings denominated
 in Dollars, to JPMorgan Chase Bank, N.A., 10 South Dearborn Street, 7th
 Floor, Chicago, Illinois 60603, Attention of Duyanna Goodlet
 (Telecopy No. (888) 292-9533) and (B) in the case of
 Borrowings denominated in Foreign Currencies, to J.P. Morgan Europe
 Limited, 25 Bank Street, Canary Wharf, London E14 5JP, Attention of The
 Manager, Loan & Agency Services (Telecopy
 No. 44 207 777 2360), and in each case with a copy to
 JPMorgan Chase Bank, N.A., 10 South Dearborn Street, Chicago, Illinois 60603,
 Attention of Krys Szremski (Telecopy No. (312) 325-3239);

 


66








	
  

 	
  

 
	
  

 	
           (iii)  if
 to an Issuing Bank, to it at (A) JPMorgan Chase Bank, N.A., 10 South
 Dearborn Street, 7th Floor, Chicago, Illinois 60603, Attention of
 Duyanna Goodlet (Telecopy No. (888) 292-9533) and (B) in the
 case of any other Issuing Bank, to it at the address and telecopy number
 specified from time to time by such Issuing Bank to the Company and the
 Administrative Agent;

 
	
  

 	
  

 
	
  

 	
           (iv)  
 if to the Swingline Lender, to it at JPMorgan Chase Bank, N.A., 10 South
 Dearborn Street, 7th Floor, Chicago, Illinois 60603, Attention of
 Duyanna Goodlet (Telecopy No. (888) 292-9533); and

 
	
  

 	
  

 
	
  

 	
           (v)  
 if to any other Lender, to it at its address (or telecopy number) set forth
 in its Administrative Questionnaire.

 


                    Notices
sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by
facsimile shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through Electronic Systems, to the extent
provided in paragraph (b) below, shall be effective as provided in said
paragraph (b).


                    (b)
Notices and other communications to the Lenders and the Issuing Banks hereunder
may be delivered or furnished by using Electronic Systems pursuant to
procedures approved by the Administrative Agent; provided that the
foregoing shall not apply to notices pursuant to Article II unless otherwise
agreed by the Administrative Agent and the applicable Lender. The
Administrative Agent or the Company may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it; provided that approval of such
procedures may be limited to particular notices or communications.


                    Unless
the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by
the “return receipt requested” function, as available, return e-mail or other
written acknowledgement), and (ii) notices or communications posted to an Internet
or intranet website shall be deemed received upon the deemed receipt by the
intended recipient, at its e-mail address as described in the foregoing clause
(i), of notification that such notice or communication is available and
identifying the website address therefor; provided that, for both clauses (i)
and (ii) above, if such notice, email or other communication is not sent during
the normal business hours of the recipient, such notice or communication shall
be deemed to have been sent at the opening of business on the next business day
for the recipient.


                    (c)
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt.


                    (d)
Electronic Systems.


	
  

 	
  

 
	
  

 	
           (i)  The
 Company agrees that the Administrative Agent may, but shall not be obligated
 to, make Communications (as defined below) available to the Issuing Bank and
 the other Lenders by posting the Communications on Debt Domain, Intralinks,
 Syndtrak, ClearPar or a substantially similar Electronic System.

 


67






	
  

 	
  

 
	
  

 	
           (ii) Any
 Electronic System used by the Administrative Agent is provided “as is” and
 “as available.” The Agent Parties (as defined below) do not warrant the
 adequacy of such Electronic Systems and expressly disclaim liability for
 errors or omissions in the Communications. No warranty of any kind, express,
 implied or statutory, including, without limitation, any warranty of
 merchantability, fitness for a particular purpose, non-infringement of
 third-party rights or freedom from viruses or other code defects, is made by
 any Agent Party in connection with the Communications or any Electronic
 System. In no event shall the Administrative Agent or any of its Related
 Parties (collectively, the “Agent Parties”) have any liability to any
 Loan Party, any Lender, the Issuing Bank or any other Person or entity for
 damages of any kind, including, without limitation, direct or indirect,
 special, incidental or consequential damages, losses or expenses (whether in
 tort, contract or otherwise) arising out of any Loan Party’s or the
 Administrative Agent’s transmission of Communications through an Electronic
 System. “Communications” means, collectively, any notice, demand,
 communication, information, document or other material provided by or on
 behalf of any Loan Party pursuant to any Loan Document or the transactions
 contemplated therein which is distributed by the Administrative Agent, any
 Lender or the Issuing Bank by means of electronic communications pursuant to
 this Section, including through an Electronic System.

 


                    SECTION
9.02. Waivers; Amendments.  (a) No failure or delay by the
Administrative Agent, any Issuing Bank or any Lender in exercising any right or
power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the
Issuing Banks and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of any Loan Document or consent to
any departure by any Borrower therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) of this Section, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. Without limiting the generality of the foregoing,
the making of a Loan or issuance of a Letter of Credit shall not be construed
as a waiver of any Default, regardless of whether the Administrative Agent, any
Lender or any Issuing Bank may have had notice or knowledge of such Default at
the time.


                    (b)
Except as provided in Section 2.20 with respect to an Incremental Term
Loan Amendment, neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrowers and the Required Lenders or by the Borrowers and
the Administrative Agent with the consent of the Required Lenders; provided
that no such agreement shall (i) increase the Commitment of any Lender
without the written consent of such Lender, (ii) reduce the principal
amount of any Loan or LC Disbursement or reduce the rate of interest thereon,
or reduce any fees payable hereunder, without the written consent of each Lender
directly affected thereby (except that any amendment or modification of the
financial covenants in this Agreement (or defined terms used in the financial
covenants in this Agreement) shall not constitute a reduction in the rate of
interest or fees for purposes of this clause (ii)), (iii) postpone the
scheduled date of payment of the principal amount of any Loan or LC
Disbursement, or any interest thereon, or any fees payable hereunder, or reduce
the amount of, waive or excuse any such payment, or postpone the scheduled date
of expiration of any Commitment, without the written consent of each Lender
directly affected thereby, (iv) change Section 2.18(b) or (c) in
a manner that would alter the pro rata sharing of payments required
thereby, without the written consent of each Lender, (v) change any of the
provisions of this Section or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to
waive, amend or modify any rights hereunder or make any determination or grant
any consent hereunder, without the written consent of each Lender (it being 


68





understood that, solely with the consent of the parties prescribed by
Section 2.20 to be parties to an Incremental Term Loan Amendment,
Incremental Term Loans may be included in the determination of Required Lenders
on substantially the same basis as the Commitments and the Revolving Loans are
included on the Effective Date) or (vi) release the Company from its
obligations under Article X or release all or substantially all of
the Subsidiary Guarantors from their obligations under the Subsidiary Guaranty,
in each case, without the written consent of each Lender; provided further
that no such agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent, any Issuing Bank or the Swingline Lender
hereunder without the prior written consent of the Administrative Agent, such
Issuing Bank or the Swingline Lender, as the case may be (it being understood
that any change to Section 2.25 shall require the consent of the
Administrative Agent, each Issuing Bank and the Swingline Lender).
Notwithstanding the foregoing, no consent with respect to any amendment, waiver
or other modification of this Agreement shall be required of any Defaulting
Lender, except with respect to any amendment, waiver or other modification
referred to in clause (i), (ii) or (iii) of the first proviso of
this paragraph and then only in the event such Defaulting Lender shall be
directly affected by such amendment, waiver or other modification.


                    (c)
Notwithstanding the foregoing, this Agreement and any other Loan Document may
be amended (or amended and restated) with the written consent of the Required
Lenders, the Administrative Agent and each Borrower (x) to add one or more
credit facilities (in addition to the Incremental Term Loans pursuant to an
Incremental Term Loan Amendment) to this Agreement and to permit extensions of
credit from time to time outstanding thereunder and the accrued interest and
fees in respect thereof to share ratably in the benefits of this Agreement and
the other Loan Documents with the Revolving Loans, Incremental Term Loans and
the accrued interest and fees in respect thereof and (y) to include
appropriately the Lenders holding such credit facilities in any determination
of the Required Lenders and Lenders.


                    (d)
If, in connection with any proposed amendment, waiver or consent requiring the
consent of “each Lender” or “each Lender directly affected thereby,” the
consent of the Required Lenders is obtained, but the consent of other necessary
Lenders is not obtained (any such Lender whose consent is necessary but not
obtained being referred to herein as a “Non-Consenting Lender”), then
the Company may elect to replace a Non-Consenting Lender as a Lender party to
this Agreement, provided that, concurrently with such replacement,
(i) another bank or other entity which is reasonably satisfactory to the
Company and the Administrative Agent shall agree, as of such date, to purchase
for cash the Loans and other Obligations due to the Non-Consenting Lender
pursuant to an Assignment and Assumption and to become a Lender for all
purposes under this Agreement and to assume all obligations of the
Non-Consenting Lender to be terminated as of such date and to comply with the
requirements of clause (b) of Section 9.04, and (ii) such
Non-Consenting Lender shall have received in same day funds on the day of such
replacement (1) all interest, fees and other amounts then accrued but
unpaid to such Non-Consenting Lender by such Borrower hereunder to and
including the date of termination, including without limitation payments due to
such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an
amount, if any, equal to the payment which would have been due to such Lender
on the day of such replacement under Section 2.16 had the Loans of such
Non-Consenting Lender been prepaid on such date rather than sold to the
replacement Lender.


                    (e)
Notwithstanding anything to the contrary herein the Administrative Agent may,
with the consent of the Borrowers only, amend, modify or supplement this
Agreement or any of the other Loan Documents to cure any ambiguity, omission,
mistake, defect or inconsistency.


                    SECTION
9.03. Expenses; Indemnity; Damage Waiver.  (a)  The
Company shall pay (i) all reasonable out-of-pocket expenses incurred by
the Administrative Agent and its Affiliates, including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent, in 


69





connection with the syndication and distribution (including, without
limitation, via the internet or through a service such as Intralinks) of the
credit facilities provided for herein, the preparation and administration of
this Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by any Issuing Bank in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all out-of-pocket expenses incurred by
the Administrative Agent, any Issuing Bank or any Lender, including the fees,
charges and disbursements of any counsel for the Administrative Agent, any
Issuing Banks or any Lender, in connection with the enforcement or protection
of its rights in connection with this Agreement and any other Loan Document,
including its rights under this Section, or in connection with the Loans made
or Letters of Credit issued hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.


                    (b)
The Company shall indemnify the Administrative Agent, each Issuing Bank and
each Lender, and each Related Party of any of the foregoing Persons (each such
Person being called an “Indemnitee”) against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including the fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of any
Loan Document or any agreement or instrument contemplated thereby, the
performance by the parties hereto of their respective obligations thereunder or
the consummation of the Transactions or any other transactions contemplated
hereby, (ii) any Loan or Letter of Credit or the use of the proceeds
therefrom (including any refusal by any Issuing Bank to honor a demand for
payment under a Letter of Credit if the documents presented in connection with
such demand do not strictly comply with the terms of such Letter of Credit),
(iii) any actual or alleged presence or release of Hazardous Materials on
or from any property owned or operated by the Company or any of its
Subsidiaries, or any Environmental Liability related in any way to the Company
or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third
party or by the Company or any of its Subsidiaries, and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from
(x) the gross negligence or willful misconduct of such Indemnitee or
(y) the material breach in bad faith by such Indemnitee of its express
obligations under this Agreement pursuant to a claim initiated by the Company.
This Section 9.03(b) shall not apply with respect to Taxes other than any
Taxes that represent losses, claims or damages arising from any non-Tax claim.


                    (c)
To the extent that the Company fails to pay any amount required to be paid by
it to the Administrative Agent, any Issuing Bank or the Swingline Lender under
paragraph (a) or (b) of this Section, each Lender severally agrees to
pay to the Administrative Agent, any Issuing Bank or the Swingline Lender, as
the case may be, such Lender’s Applicable Percentage (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of
such unpaid amount (it being understood that the Company’s failure to pay any
such amount shall not relieve the Company of any default in the payment
thereof); provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred
by or asserted against the Administrative Agent, any Issuing Bank or the
Swingline Lender in its capacity as such.


                    (d)
To the extent permitted by applicable law, no Borrower shall assert, and each
Borrower hereby waives, any claim against any Indemnitee (i) for any
damages arising from the use by others of information or other materials
obtained through telecommunications, electronic or other 


70





information transmission systems (including the Internet), or
(ii) on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement, any other Loan Document or
any agreement or instrument contemplated hereby or thereby, the Transactions,
any Loan or Letter of Credit or the use of the proceeds thereof.


                    (e)
All amounts due under this Section shall be payable not later than fifteen
(15) days after written demand therefor.


                    SECTION
9.04. Successors and Assigns.  (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of the relevant Issuing Bank that issues any Letter of Credit),
except that (i) no Borrower may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by any Borrower without such
consent shall be null and void) and (ii) no Lender may assign or otherwise
transfer its rights or obligations hereunder except in accordance with this
Section. Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any Affiliate of the
relevant Issuing Bank that issues any Letter of Credit), Participants (to the
extent provided in paragraph (c) of this Section) and, to the extent
expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the Issuing Banks and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.


                    (b)
(i) Subject to the conditions set forth in paragraph (b)(ii) below, any
Lender may assign to one or more Persons (other than an Ineligible Institution)
all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans at the time owing to it) with
the prior written consent (such consent not to be unreasonably withheld) of:


	
  

 	
  

 
	
  

 	
           (A) the
 Company (provided that the Company shall be deemed to have consented to any
 such assignment unless it shall object thereto by written notice to the
 Administrative Agent within five (5) Business Days after having received
 notice thereof); provided further, that no consent of the
 Company shall be required for an assignment to a Lender, an Affiliate of a
 Lender, an Approved Fund or, if an Event of Default has occurred and is
 continuing, any other assignee; and

 
	
  

 	
  

 
	
  

 	
           (B) the
 Administrative Agent.

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (A)
 except in the case of an assignment to a Lender or an Affiliate of a Lender
 or an Approved Fund or an assignment of the entire remaining amount of the
 assigning Lender’s Commitment or Loans of any Class, the amount of the
 Commitment or Loans of the assigning Lender subject to each such assignment
 (determined as of the date the Assignment and Assumption with respect to such
 assignment is delivered to the Administrative Agent) shall not be less than
 $5,000,000 unless each of the Company and the Administrative Agent otherwise
 consent, provided that no such consent of the Company shall be
 required if an Event of Default has occurred and is continuing;

 
	
  

 	
  

 
	
  

 	
           (B) each
 partial assignment shall be made as an assignment of a proportionate part of
 all the assigning Lender’s rights and obligations under this Agreement,
 provided that this clause shall not be construed to prohibit the assignment
 of a proportionate part of all the assigning Lender’s rights and obligations
 in respect of one Class of Commitments or Loans;

 


71









	
  

 	
  

 
	
  

 	
           (C) the
 parties to each assignment shall execute and deliver to the Administrative
 Agent an Assignment and Assumption, together with a processing and
 recordation fee of $3,500, such fee to be paid by either the assigning Lender
 or the assignee Lender or shared between such Lenders; and

 
	
  

 	
  

 
	
  

 	
           (D) the
 assignee, if it shall not be a Lender, shall deliver to the Administrative
 Agent an Administrative Questionnaire in which the assignee designates one or
 more credit contacts to whom all syndicate-level information (which may
 contain material non-public information about the Company and its affiliates
 and their Related Parties or their respective securities) will be made
 available and who may receive such information in accordance with the assignee’s
 compliance procedures and applicable laws, including Federal and state
 securities laws.

 


                    For
the purposes of this Section 9.04(b), the terms “Approved Fund” and “Ineligible
Institution” have the following meanings:


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


                    “Ineligible
Institution” means (a) a natural person, (b) a Defaulting Lender, (c) the
Company, any of its Subsidiaries or any of its Affiliates, or (d) a company,
investment vehicle or trust for, or owned and operated for the primary benefit
of, a natural person or relative(s) thereof.


	
  

 	
  

 
	
  

 	
           (iii)
 Subject to acceptance and recording thereof pursuant to
 paragraph (b)(iv) of this Section, from and after the effective date
 specified in each Assignment and Assumption the assignee thereunder shall be
 a party hereto and, to the extent of the interest assigned by such Assignment
 and Assumption, have the rights and obligations of a Lender under this
 Agreement, and the assigning Lender thereunder shall, to the extent of the
 interest assigned by such Assignment and Assumption, be released from its
 obligations under this Agreement (and, in the case of an Assignment and
 Assumption covering all of the assigning Lender’s rights and obligations
 under this Agreement, such Lender shall cease to be a party hereto but shall
 continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and
 9.03). Any assignment or transfer by a Lender of rights or obligations under
 this Agreement that does not comply with this Section 9.04 shall be
 treated for purposes of this Agreement as a sale by such Lender of a
 participation in such rights and obligations in accordance with paragraph (c)
 of this Section.

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (v) Upon
 its receipt of a duly completed Assignment and Assumption executed by an
 assigning Lender and an assignee, the assignee’s completed Administrative
 Questionnaire (unless the assignee shall already be a Lender hereunder), the
 processing and recordation fee referred to

 
	
  

 	
  

 


72









	
  

 	
  

 
	
  

 	
 in paragraph (b) of this Section and any written consent to such
 assignment required by paragraph (b) of this Section, the Administrative
 Agent shall accept such Assignment and Assumption and record the information
 contained therein in the Register; provided that if either the
 assigning Lender or the assignee shall have failed to make any payment
 required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e),
 2.07(b), 2.18(d) or 9.03(c), the Administrative Agent shall have no
 obligation to accept such Assignment and Assumption and record the
 information therein in the Register unless and until such payment shall have
 been made in full, together with all accrued interest thereon. No assignment
 shall be effective for purposes of this Agreement unless it has been recorded
 in the Register as provided in this paragraph.

 
	
  

 	
  

 
	
  

 	
           (a) Any
 Lender may, without the consent of any Borrower, the Administrative Agent,
 the Issuing Banks or the Swingline Lender, sell participations to one or more
 banks or other entities (a “Participant”), other than an Ineligible
 Institution, in all or a portion of such Lender’s rights and obligations
 under this Agreement (including all or a portion of its Commitment and the
 Loans owing to it); provided that (A) such Lender’s obligations
 under this Agreement shall remain unchanged, (B) such Lender shall
 remain solely responsible to the other parties hereto for the performance of
 such obligations and (C) the Borrowers, the Administrative Agent, the
 Issuing Banks and the other Lenders shall continue to deal solely and
 directly with such Lender in connection with such Lender’s rights and
 obligations under this Agreement. Any agreement or instrument pursuant to
 which a Lender sells such a participation shall provide that such Lender shall
 retain the sole right to enforce this Agreement and to approve any amendment,
 modification or waiver of any provision of this Agreement; provided
 that such agreement or instrument may provide that such Lender will not,
 without the consent of the Participant, agree to any amendment, modification
 or waiver described in the first proviso to Section 9.02(b) that affects
 such Participant. Each Borrower agrees that each Participant shall be
 entitled to the benefits of Sections 2.15, 2.16 and 2.17 (subject to the
 requirements and limitations therein, including the requirements under
 Section 2.17(f) (it being understood that the documentation required
 under Section 2.17(f) shall be delivered to the participating Lender))
 to the same extent as if it were a Lender and had acquired its interest by
 assignment pursuant to paragraph (b) of this Section; provided that such
 Participant (A) agrees to be subject to the provisions of
 Sections 2.18 and 2.19 as if it were an assignee under
 paragraph (b) of this Section; and (B) shall not be entitled to
 receive any greater payment under Sections 2.15 or 2.17, with respect to
 any participation, than its participating Lender would have been entitled to
 receive, except to the extent such entitlement to receive a greater payment
 results from a Change in Law that occurs after the Participant acquired the
 applicable participation. To the extent permitted by law, each Participant
 also shall be entitled to the benefits of Section 9.08 as though it were
 a Lender, provided such Participant agrees to be subject to
 Section 2.18(c) as though it were a Lender. Each Lender that sells a
 participation shall, acting solely for this purpose as a non-fiduciary agent
 of the Borrowers, maintain a register on which it enters the name and address
 of each Participant and the principal amounts (and stated interest) of each
 Participant’s interest in the Loans or other obligations under the Loan
 Documents (the “Participant Register”); provided that no Lender
 shall have any obligation to disclose all or any portion of the Participant
 Register (including the identity of any Participant or any information
 relating to a Participant’s interest in any Commitments, Loans, Letters of
 Credit or its other obligations under any Loan Document) to any Person except
 to the extent that such disclosure is necessary to establish that such
 Commitment, Loan, Letter of Credit or other obligation is in registered form
 under Section 5f.103-1(c) of the United States Treasury Regulations. The
 entries in the Participant Register shall be conclusive absent manifest
 error, and such Lender shall treat each Person whose name is recorded in the
 Participant Register as the owner of such participation for all purposes of
 this Agreement notwithstanding any notice to the contrary. For the avoidance
 of doubt, the Administrative Agent (in its capacity as Administrative Agent)
 shall have no responsibility for maintaining a Participant Register.

 


73









	
  

 	
  

 
	
  

 	
           (b) Any
 Lender may at any time pledge or assign a security interest in all or any
 portion of its rights under this Agreement to secure obligations of such
 Lender, including without limitation any pledge or assignment to secure
 obligations to a Federal Reserve Bank, and this Section shall not apply to
 any such pledge or assignment of a security interest; provided that no
 such pledge or assignment of a security interest shall release a Lender from
 any of its obligations hereunder or substitute any such pledgee or assignee
 for such Lender as a party hereto.

 


                    SECTION
9.05. Survival.   All covenants, agreements,
representations and warranties made by the Loan Parties in the Loan Documents
and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the other parties hereto and shall survive the
execution and delivery of the Loan Documents and the making of any Loans and
issuance of any Letters of Credit, regardless of any investigation made by any
such other party or on its behalf and notwithstanding that the Administrative
Agent, any Issuing Bank or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement or any other Loan Document is outstanding and
unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not expired or terminated. The provisions of Sections 2.15, 2.16,
2.17 and 9.03 and Article VIII shall survive and remain in full force and
effect regardless of the consummation of the transactions contemplated hereby,
the repayment of the Loans, the expiration or termination of the Letters of
Credit and the Commitments or the termination of this Agreement or any other
Loan Document or any provision hereof or thereof.


                    SECTION
9.06. Counterparts; Integration; Effectiveness; Electronic Execution.   This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents and any separate letter agreements with respect to
fees payable to the Administrative Agent constitute the entire contract among
the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the
subject matter hereof. Except as provided in Section 4.01, this Agreement
shall become effective when it shall have been executed by the Administrative
Agent and when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties
hereto, and thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy,
e-mailed .pdf or any other electronic means that reproduces an image of the
actual executed signature page shall be effective as delivery of a manually
executed counterpart of this Agreement. The words “execution,” “signed,”
“signature,” “delivery,” and words of like import in or relating to any
document to be signed in connection with this Agreement and the transactions
contemplated hereby shall be deemed to include Electronic Signatures,
deliveries or the keeping of records in electronic form, each of which shall be
of the same legal effect, validity or enforceability as a manually executed
signature, physical delivery thereof or the use of a paper-based recordkeeping
system, as the case may be, to the extent and as provided for in any applicable
law, including the Federal Electronic Signatures in Global and National
Commerce Act, the New York State Electronic Signatures and Records Act, or any
other similar state laws based on the Uniform Electronic Transactions Act.


                    SECTION
9.07. Severability.   Any provision of any Loan Document
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions thereof; and the invalidity of a particular
provision in a particular jurisdiction shall not invalidate such provision in
any other jurisdiction.


74





                    SECTION
9.08. Right of Setoff.   If an Event of Default shall
have occurred and be continuing, each Lender and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final and in whatever currency
denominated) at any time held and other obligations at any time owing by such
Lender or Affiliate to or for the credit or the account of any Borrower or any
Subsidiary Guarantor against any of and all of the Obligations held by such
Lender, irrespective of whether or not such Lender shall have made any demand
under the Loan Documents and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.


                    SECTION
9.09. Governing Law; Jurisdiction; Consent to Service of Process.   (a)
This Agreement shall be construed in accordance with and governed by the law of
the State of New York.


                    (b)
Each Borrower hereby irrevocably and unconditionally submits, for itself and
its property, to the exclusive jurisdiction of the Supreme Court of the State
of New York sitting in New York County, Borough of Manhattan, and of the United
States District Court for the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to any Loan Document, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right
that the Administrative Agent, any Issuing Bank or any Lender may otherwise
have to bring any action or proceeding relating to this Agreement or any other
Loan Document against any Loan Party or its properties in the courts of any
jurisdiction.


                    (c)
Each Borrower hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement or any other Loan Document in any court
referred to in paragraph (b) of this Section. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.


                    (d)
Each party to this Agreement irrevocably consents to service of process in the
manner provided for notices in Section 9.01. Each Foreign Subsidiary
Borrower irrevocably designates and appoints the Company, as its authorized
agent, to accept and acknowledge on its behalf, service of any and all process
which may be served in any suit, action or proceeding of the nature referred to
in Section 9.09(b) in any federal or New York State court sitting in New
York City. The Company hereby represents, warrants and confirms that the
Company has agreed to accept such appointment (and any similar appointment by a
Subsidiary Guarantor which is a Foreign Subsidiary). Said designation and
appointment shall be irrevocable by each such Foreign Subsidiary Borrower until
all Loans, all reimbursement obligations, interest thereon and all other
amounts payable by such Foreign Subsidiary Borrower hereunder and under the
other Loan Documents shall have been paid in full in accordance with the
provisions hereof and thereof and such Foreign Subsidiary Borrower shall have
been terminated as a Borrower hereunder pursuant to Section 2.23. Each
Foreign Subsidiary Borrower hereby consents to process being served in any
suit, action or proceeding of the nature referred to in Section 9.09(b) in
any federal or New York State court sitting in New York City by service of
process upon the Company as provided in this Section 9.09(d); provided
that, to the extent lawful and possible, notice of said service upon such agent
shall be mailed by registered or certified air mail, postage prepaid, return
receipt requested, to the Company and (if applicable to) such Foreign
Subsidiary Borrower at its address set forth 


75





in the Borrowing Subsidiary Agreement to which it is a party or to any
other address of which such Foreign Subsidiary Borrower shall have given
written notice to the Administrative Agent (with a copy thereof to the
Company). Each Foreign Subsidiary Borrower irrevocably waives, to the fullest
extent permitted by law, all claim of error by reason of any such service in
such manner and agrees that such service shall be deemed in every respect
effective service of process upon such Foreign Subsidiary Borrower in any such
suit, action or proceeding and shall, to the fullest extent permitted by law,
be taken and held to be valid and personal service upon and personal delivery
to such Foreign Subsidiary Borrower. To the extent any Foreign Subsidiary
Borrower has or hereafter may acquire any immunity from jurisdiction of any
court or from any legal process (whether from service or notice, attachment
prior to judgment, attachment in aid of execution of a judgment, execution or
otherwise), each Foreign Subsidiary Borrower hereby irrevocably waives such
immunity in respect of its obligations under the Loan Documents. Nothing in
this Agreement or any other Loan Document will affect the right of any party to
this Agreement to serve process in any other manner permitted by law.


                    SECTION
9.10. WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


                    SECTION
9.11. Headings.   Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.


                    SECTION
9.12. Confidentiality.   Each of the Administrative
Agent, the Issuing Banks and the Lenders agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates’ directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority
(including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other
party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or any other Loan Document or the enforcement of rights hereunder or thereunder,
(f) subject to an agreement containing provisions substantially the same
as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or (ii) any actual or prospective counterparty (or
its advisors) to any swap or derivative transaction relating to any Borrower
and its obligations, (g) with the consent of the Company or (h) to
the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or (ii) becomes available to the
Administrative Agent, any Issuing Bank or any Lender on a nonconfidential basis from a source other than the Company. For the
purposes of this Section, “Information” means all information received
from the Company relating to the Company or its business, whether or not
identified at the time of delivery as confidential, other than (x) any
such information that is available to the Administrative Agent, any Issuing
Bank or any Lender on a 


76





nonconfidential basis prior to disclosure by the
Company and (y) any such information that is independently developed,
discovered or arrived at by the Administrative Agent, any Issuing Bank or any
Lender. Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.


EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN THE IMMEDIATELY
PRECEDING PARAGRAPH FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE
MATERIAL NON-PUBLIC INFORMATION CONCERNING THE COMPANY AND ITS RELATED PARTIES
OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE
PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT
WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE
PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.


ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS,
FURNISHED BY THE COMPANY OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE
COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION,
WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE COMPANY, THE OTHER
LOAN PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES.
ACCORDINGLY, EACH LENDER REPRESENTS TO THE COMPANY AND THE ADMINISTRATIVE AGENT
THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO
MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN
ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.


                    SECTION
9.13. USA PATRIOT Act.   Each Lender that is subject to
the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”) hereby notifies
each Loan Party that pursuant to the requirements of the Act, it is required to
obtain, verify and record information that identifies such Loan Party, which
information includes the name and address of such Borrower and other
information that will allow such Lender to identify such Loan Party in
accordance with the Act.


                    SECTION
9.14. Releases of Subsidiary Guarantors. (a) A Subsidiary Guarantor shall
automatically be released from its obligations under the Subsidiary Guaranty
upon the consummation of any transaction permitted by this Agreement as a
result of which such Subsidiary Guarantor ceases to be a Subsidiary; provided
that, if so required by this Agreement, the Required Lenders shall have
consented to such transaction and the terms of such consent shall not have
provided otherwise. In connection with any termination or release pursuant to
this Section, the Administrative Agent shall (and is hereby irrevocably
authorized by each Lender to) execute and deliver to any Loan Party, at such
Loan Party’s expense, all documents that such Loan Party shall reasonably
request to evidence such termination or release. Any execution and delivery of
documents pursuant to this Section shall be without recourse to or warranty by
the Administrative Agent.


                    (b)
Further, the Administrative Agent may (and is hereby irrevocably authorized by
each Lender to), upon the request of the Company, release any Subsidiary
Guarantor from its obligations under the Subsidiary Guaranty if such Subsidiary
Guarantor is no longer a Material Subsidiary.


                    (c)
At such time as the principal and interest on the Loans, all LC Disbursements,
the fees, expenses and other amounts payable under the Loan Documents and the
other Obligations (other 


77





than obligations under any Swap Agreement or any Banking Services
Agreement, and other Obligations expressly stated to survive such payment and
termination) shall have been paid in full in cash, the Commitments shall have
been terminated and no Letters of Credit shall be outstanding, the Subsidiary
Guaranty and all obligations (other than those expressly stated to survive such
termination) of each Subsidiary Guarantor thereunder shall automatically
terminate, all without delivery of any instrument or performance of any act by
any Person.


                    SECTION
9.15. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which are treated as interest on such
Loan under applicable law (collectively the “Charges”), shall exceed the
maximum lawful rate (the “Maximum Rate”) which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated
amount, together with interest thereon at the Federal Funds Effective Rate to
the date of repayment, shall have been received by such Lender.


                    SECTION
9.16. No Advisory or Fiduciary Responsibility. In connection with all
aspects of each transaction contemplated hereby (including in connection with
any amendment, waiver or other modification hereof or of any other Loan
Document), each Borrower acknowledges and agrees that: (i) (A) the
arranging and other services regarding this Agreement provided by the Lenders
are arm’s-length commercial transactions between such Borrower and its
Affiliates, on the one hand, and the Lenders and their Affiliates, on the other
hand, (B) such Borrower has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate, and (C) such
Borrower is capable of evaluating, and understands and accepts, the terms,
risks and conditions of the transactions contemplated hereby and by the other
Loan Documents; (ii) (A) each of the Lenders and their Affiliates is
and has been acting solely as a principal and, except as expressly agreed in
writing by the relevant parties, has not been, is not, and will not be acting
as an advisor, agent or fiduciary for such Borrower or any of its Affiliates,
or any other Person and (B) no Lender or any of its Affiliates has any
obligation to such Borrower or any of its Affiliates with respect to the
transactions contemplated hereby except, in the case of a Lender, those
obligations expressly set forth herein and in the other Loan Documents; and
(iii) each of the Lenders and their respective Affiliates may be engaged
in a broad range of transactions that involve interests that differ from those
of such Borrower and its Affiliates, and no Lender or any of its Affiliates has
any obligation to disclose any of such interests to such Borrower or its
Affiliates. To the fullest extent permitted by law, each Borrower hereby waives
and releases any claims that it may have against each of the Lenders and their
Affiliates with respect to any breach or alleged breach of agency or fiduciary
duty in connection with any aspect of any transaction contemplated hereby.


ARTICLE X


Cross-Guarantee


                    In
order to induce the Lenders to extend credit to the other Borrowers hereunder,
but subject to the last sentence of this Article X, each Borrower hereby
absolutely and irrevocably and unconditionally guarantees, as a primary obligor
and not merely as a surety, the payment when and as due of the Obligations of
such other Borrowers. Each Borrower further agrees that the due and punctual
payment of such Obligations may be extended or renewed, in whole or in part,
without notice to or further assent from it, and that it will remain bound upon
its guarantee hereunder notwithstanding any such 


78





extension or renewal of any such Obligation. Each of the Borrowers
hereby irrevocably and unconditionally agrees, jointly and severally with the
other Borrowers, that if any obligation guaranteed by it is or becomes
unenforceable, invalid or illegal, it will, as an independent and primary
obligation, indemnify the Administrative Agent, the Issuing Banks and the
Lenders immediately on demand against any cost, loss or liability they incur as
a result of any other Borrower or any of its Affiliates not paying any amount
which would, but for such unenforceability, invalidity or illegality, have been
payable by such Borrower under this Article X on the date when it would have
been due (but so that the amount payable by each Borrower under this indemnity
will not exceed the amount which it would have had to pay under this Article X
if the amount claimed had been recoverable on the basis of a guarantee).


                    Each
Borrower waives presentment to, demand of payment from and protest to any
Borrower of any of the Obligations, and also waives notice of acceptance of its
obligations and notice of protest for nonpayment. The obligations of each
Borrower hereunder shall not be affected by (a) the failure of the
Administrative Agent, any Issuing Bank or any Lender to assert any claim or demand
or to enforce any right or remedy against any Borrower under the provisions of
this Agreement, any other Loan Document or otherwise; (b) any extension or
renewal of any of the Obligations; (c) any rescission, waiver, amendment
or modification of, or release from, any of the terms or provisions of this
Agreement, or any other Loan Document or agreement; (d) any default,
failure or delay, willful or otherwise, in the performance of any of the
Obligations; (e) the failure of the Administrative Agent to take any steps
to perfect and maintain any security interest in, or to preserve any rights to,
any security or collateral for the Obligations, if any; (f) any change in
the corporate, partnership or other existence, structure or ownership of any
Borrower or any other guarantor of any of the Obligations; (g) the
enforceability or validity of the Obligations or any part thereof or the
genuineness, enforceability or validity of any agreement relating thereto or
with respect to any collateral securing the Obligations or any part thereof, or
any other invalidity or unenforceability relating to or against any Borrower or
any other guarantor of any of the Obligations, for any reason related to this
Agreement, any Swap Agreement, any Banking Services Agreement, any other Loan
Document, or any provision of applicable law, decree, order or regulation of
any jurisdiction purporting to prohibit the payment by such Borrower or any
other guarantor of the Obligations, of any of the Obligations or otherwise
affecting any term of any of the Obligations; or (h) any other act,
omission or delay to do any other act which may or might in any manner or to
any extent vary the risk of such Borrower or otherwise operate as a discharge
of a guarantor as a matter of law or equity or which would impair or eliminate
any right of such Borrower to subrogation.


                    Each
Borrower further agrees that its agreement hereunder constitutes a guarantee of
payment when due (whether or not any bankruptcy or similar proceeding shall
have stayed the accrual or collection of any of the Obligations or operated as
a discharge thereof) and not merely of collection, and waives any right to
require that any resort be had by the Administrative Agent, any Issuing Bank or
any Lender to any balance of any deposit account or credit on the books of the
Administrative Agent, any Issuing Bank or any Lender in favor of any Borrower
or any other Person.


                    The
obligations of each Borrower hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason, and shall not be subject
to any defense or set-off, counterclaim, recoupment or termination whatsoever,
by reason of the invalidity, illegality or unenforceability of any of the
Obligations, any impossibility in the performance of any of the Obligations or
otherwise.


                    Each
Borrower further agrees that its obligations hereunder shall constitute a
continuing and irrevocable guarantee of all Obligations now or hereafter
existing and shall continue to be effective or be reinstated, as the case may
be, if at any time payment, or any part thereof, of any Obligation (including a
payment effected through exercise of a right of setoff) is rescinded, or is or
must otherwise be restored or returned by the Administrative Agent, any Issuing
Bank or any Lender upon the insolvency, 


79





bankruptcy or reorganization of any Borrower or otherwise (including
pursuant to any settlement entered into by a holder of Obligations in its
discretion).


                    In
furtherance of the foregoing and not in limitation of any other right which the
Administrative Agent, any Issuing Bank or any Lender may have at law or in
equity against any Borrower by virtue hereof, upon the failure of any other
Borrower to pay any Obligation when and as the same shall become due, whether
at maturity, by acceleration, after notice of prepayment or otherwise, each
Borrower hereby promises to and will, upon receipt of written demand by the
Administrative Agent, any Issuing Bank or any Lender, forthwith pay, or cause
to be paid, to the Administrative Agent, any Issuing Bank or any Lender in cash
an amount equal to the unpaid principal amount of such Obligations then due,
together with accrued and unpaid interest thereon. Each Borrower further agrees
that if payment in respect of any Obligation shall be due in a currency other
than Dollars and/or at a place of payment other than New York, Chicago or any
other Eurocurrency Payment Office and if, by reason of any Change in Law,
disruption of currency or foreign exchange markets, war or civil disturbance or
other event, payment of such Obligation in such currency or at such place of
payment shall be impossible or, in the reasonable judgment of the
Administrative Agent, any Issuing Bank or any Lender, disadvantageous to the
Administrative Agent, any Issuing Bank or any Lender in any material respect,
then, at the election of the Administrative Agent, such Borrower shall make
payment of such Obligation in Dollars (based upon the applicable Equivalent
Amount in effect on the date of payment) and/or in New York, Chicago or such
other Eurocurrency Payment Office as is designated by the Administrative Agent
and, as a separate and independent obligation, shall indemnify the
Administrative Agent, any Issuing Bank and any Lender against any losses or
reasonable out-of-pocket expenses that it shall sustain as a result of such
alternative payment.


                    Upon
payment by any Borrower of any sums as provided above, all rights of such
Borrower against any Borrower arising as a result thereof by way of right of
subrogation or otherwise shall in all respects be subordinated and junior in
right of payment to the prior indefeasible payment in full in cash of all the
Obligations owed by such Borrower to the Administrative Agent, the Issuing
Banks and the Lenders.


                    Nothing
shall discharge or satisfy the liability of any Borrower hereunder except the
full performance and payment in cash of the Obligations.


                    Each
Borrower hereby jointly and severally absolutely, unconditionally and
irrevocably undertakes to provide such funds or other support as may be needed
from time to time by each other Loan Party to honor all of its obligations
under this Article X or the Subsidiary Guaranty, as applicable, in respect of
Specified Swap Obligations (provided, however, that each Borrower shall only be
liable under this paragraph for the maximum amount of such liability that can
be hereby incurred without rendering its obligations under this paragraph or
otherwise under this Article X voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer, and not for any greater amount).
Each Borrower intends that this paragraph constitute, and this paragraph shall
be deemed to constitute, a “keepwell, support, or other agreement” for the
benefit of each other Loan Party for all purposes of Section 1a(18)(A)(v)(II)
of the Commodity Exchange Act.


                    Notwithstanding
anything contained in this Article X to the contrary, no Foreign
Subsidiary Borrower which is and remains an Affected Foreign Subsidiary shall
be liable hereunder for any of the Loans made to, or any other Obligation
incurred solely by or on behalf of, the Company or any Subsidiary Guarantor which
is a Domestic Subsidiary.


80





[Signature Pages Follow]


81





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


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 MTS SYSTEMS
 CORPORATION, as the Company

 
	
  

 	
  

 	
  

 
	
  

 	
 By

 	
 /s/ Susan
 Knight

 	
  

 
	
  

 	
  

 	
 Name: Susan
 Knight

 
	
  

 	
  

 	
 Title: Chief
 Financial Officer

 
	
  

 	
  

 	
  

 
	
  

 	
 JPMORGAN CHASE BANK, N.A., individually as a Lender, as Swingline
 Lender, as an Issuing Bank and as Administrative Agent

 
	
  

 	
  

 
	
  

 	
 By

 	
 /s/ Krys
 Szremski

 	
  

 
	
  

 	
  

 	
 Name: Krys
 Szremski

 
	
  

 	
  

 	
 Title: Vice
 President

 
	
  

 	
  

 	
  

 
	
  

 	
 WELLS FARGO BANK, NATIONAL ASSOCIATION, individually as a Lender and
 as Syndication Agent

 
	
  

 	
  

 
	
  

 	
 By

 	
 /s/ Sharlyn
 G. Rekenthaler

 	
  

 
	
  

 	
 Name:
 Sharlyn G. Rekenthaler

 
	
  

 	
 Title: Vice
 President

 
	
  

 	
  

 	
  

 
	
  

 	
 U.S. BANK, NATIONAL ASSOCIATION, individually as a Lender and as
 Co-Documentation Agent

 
	
  

 	
  

 
	
  

 	
 By

 	
 /s/ Andrew
 Beckman

 	
  

 
	
  

 	
 Name: Andrew
 Beckman

 
	
  

 	
 Title: Vice
 President

 
	
  

 	
  

 	
  

 
	
  

 	
 HSBC BANK, NATIONAL ASSOCIATION, individually as a Lender and as
 Co-Documentation Agent

 
	
  

 	
  

 
	
  

 	
 By

 	
 /s/ Fik
 Durmus

 	
  

 
	
  

 	
 Name: Fik
 Durmus

 
	
  

 	
 Title: SVP

 


Signature Page to Credit Agreement 

MTS Systems Corporation









	
  

 	
  

 	
  

 	
  

 
	
 SCHEDULE 2.01

 
	
  

 	
  

 	
  

 	
  

 
	
 COMMITMENTS

 
	
  

 	
  

 	
  

 	
  

 
	
 LENDER

 	
  

 	
  

 	
 COMMITMENT

 
	
  

 	
  

 	
  

 
	
 JPMORGAN
 CHASE BANK, N.A.

 	
  

 	
 $55,000,000

 
	
  

 	
  

 	
  

 
	
 WELLS FARGO
 BANK, NATIONAL ASSOCIATION

 	
  

 	
 $55,000,000

 
	
  

 	
  

 	
  

 
	
 U.S. BANK
 NATIONAL ASSOCIATION

 	
  

 	
 $45,000,000

 
	
  

 	
  

 	
  

 
	
 HSBC BANK
 USA, NATIONAL ASSOCIATION

 	
  

 	
 $45,000,000

 
	
  

 	
  

 	
  

 
	
 AGGREGATE COMMITMENT

 	
  

 	
 $200,000,000