exv10w1






Exhibit 10.1




AMENDED AND RESTATED CREDIT AGREEMENT




among



LEAR CORPORATION,



THE FOREIGN SUBSIDIARY BORROWERS,



The Several Lenders from Time to Time Parties Hereto,



BARCLAYS BANK PLC



and



UBS SECURITIES LLC,



as Co-Documentation Agents,



CITIBANK, N.A.,



as Syndication Agent,



and



JPMORGAN CHASE BANK, N.A.,



as Administrative Agent and Collateral Agent



Dated as of June 17, 2011



 



J. P. MORGAN SECURITIES LLC,



CITIGROUP GLOBAL MARKETS INC. and



BARCLAYS CAPITAL,



as Joint Lead Arrangers and Joint Bookrunners



 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	SECTION 1. DEFINITIONS
	 	 	1	 
	1.1. Defined Terms
	 	 	1	 
	1.2. Classification of Loans and Borrowings
	 	 	26	 
	1.3. Other Definitional Provisions
	 	 	27	 
	1.4. Exchange Rates; Currencies
	 	 	27	 
	 
	 	 	 	 
	SECTION 2. AMOUNT AND TERMS OF LOANS AND COMMITMENTS
	 	 	28	 
	2.1. Loans and Commitments
	 	 	28	 
	2.2. Swingline Commitment
	 	 	29	 
	2.3. Procedure for Swingline Loan Borrowing; Refunding of Swingline Loans
	 	 	30	 
	2.4. Repayment of Revolving Loans
	 	 	31	 
	2.5. Fees
	 	 	31	 
	2.6. Termination or Reduction of Commitments
	 	 	31	 
	2.7. Optional Prepayments
	 	 	31	 
	2.8. Prepayments Required Due to Currency Fluctuation
	 	 	32	 
	2.9. Conversion and Continuation Options
	 	 	32	 
	2.10. Limitations on Eurocurrency Tranches
	 	 	32	 
	2.11. Interest Rates and Payment Dates
	 	 	33	 
	2.12. Computation of Interest and Fees
	 	 	33	 
	2.13. Inability to Determine Interest Rate
	 	 	33	 
	2.14. Pro Rata Treatment and Payments
	 	 	34	 
	2.15. Requirements of Law
	 	 	35	 
	2.16. Taxes
	 	 	37	 
	2.17. Indemnity
	 	 	39	 
	2.18. Change of Lending Office
	 	 	39	 
	2.19. Incremental Facility
	 	 	40	 
	2.20. Defaulting Lenders
	 	 	41	 
	 
	 	 	 	 
	SECTION 3. LETTERS OF CREDIT
	 	 	43	 
	3.1. L/C Commitment
	 	 	43	 
	3.2. Procedure for Issuance of Letter of Credit
	 	 	44	 
	3.3. Fees and Other Charges
	 	 	44	 
	3.4. L/C Participations
	 	 	44	 
	3.5. Reimbursement Obligation of the Company
	 	 	45	 
	3.6. Obligations Absolute
	 	 	45	 
	3.7. Letter of Credit Payments
	 	 	46	 
	3.8. Applications
	 	 	46	 
	3.9. Cash Collateralization
	 	 	46	 
	3.10. Currency Adjustments
	 	 	46	 
	3.11. Existing Letters of Credit
	 	 	46	 
	 
	 	 	 	 
	SECTION 4. REPRESENTATIONS AND WARRANTIES
	 	 	47	 
	4.1. No Change
	 	 	47	 
	4.2. Existence; Compliance with Law
	 	 	47	 
	4.3. Power; Authorization; Enforceable Obligations
	 	 	47	 
	4.4. No Legal Bar
	 	 	47	 
	4.5. Litigation
	 	 	47	 






i









 






	 	 	 	 	 
	 	 	Page	 
	4.6. No Default
	 	 	48	 
	4.7. Ownership of Property; Liens
	 	 	48	 
	4.8. Intellectual Property
	 	 	48	 
	4.9. Taxes
	 	 	48	 
	4.10. Federal Regulations
	 	 	48	 
	4.11. Labor Matters
	 	 	48	 
	4.12. ERISA
	 	 	48	 
	4.13. Investment Company Act; Other Regulations
	 	 	49	 
	4.14. Subsidiaries
	 	 	49	 
	4.15. Use of Proceeds
	 	 	49	 
	4.16. Environmental Matters
	 	 	49	 
	4.17. Accuracy of Information, etc.
	 	 	50	 
	4.18. Financial Statements
	 	 	50	 
	4.19. Insurance
	 	 	50	 
	4.20. Security Documents
	 	 	51	 
	4.21. Solvency
	 	 	51	 
	4.22. Regulation H
	 	 	51	 
	 
	 	 	 	 
	SECTION 5. CONDITIONS PRECEDENT
	 	 	51	 
	5.1. Closing Date
	 	 	51	 
	5.2. Each Extension of Credit
	 	 	53	 
	 
	 	 	 	 
	SECTION 6. AFFIRMATIVE COVENANTS
	 	 	54	 
	6.1. Financial Statements
	 	 	54	 
	6.2. Certificates; Other Information
	 	 	54	 
	6.3. Payment of Obligations
	 	 	55	 
	6.4. Maintenance of Existence; Compliance
	 	 	55	 
	6.5. Maintenance of Property; Insurance
	 	 	56	 
	6.6. Inspection of Property; Books and Records; Discussions
	 	 	56	 
	6.7. Notices
	 	 	56	 
	6.8. Environmental Laws
	 	 	56	 
	6.9. Additional Collateral, etc.
	 	 	57	 
	6.10. Suspension of Collateral Requirements
	 	 	58	 
	6.11. Foreign Subsidiary Borrowers
	 	 	58	 
	 
	 	 	 	 
	SECTION 7. NEGATIVE COVENANTS
	 	 	58	 
	7.1. Financial Covenants
	 	 	58	 
	7.2. Indebtedness
	 	 	59	 
	7.3. Liens
	 	 	61	 
	7.4. Fundamental Changes
	 	 	64	 
	7.5. Disposition of Property
	 	 	64	 
	7.6. Restricted Payments
	 	 	65	 
	7.7. Investments
	 	 	66	 
	7.8. Transactions with Affiliates
	 	 	68	 
	7.9. Swap Agreements
	 	 	68	 
	7.10. Changes in Fiscal Periods
	 	 	68	 
	7.11. Negative Pledge Clauses
	 	 	68	 
	7.12. Clauses Restricting Subsidiary Distributions
	 	 	69	 
	7.13. Lines of Business
	 	 	69	 
	7.14. Use of Proceeds
	 	 	69	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 8. EVENTS OF DEFAULT
	 	 	69	 
	8.1. Events of Default
	 	 	69	 
	 
	 	 	 	 
	SECTION 9. THE AGENTS
	 	 	72	 
	9.1. Appointment
	 	 	72	 
	9.2. Delegation of Duties
	 	 	72	 
	9.3. Exculpatory Provisions
	 	 	72	 
	9.4. Reliance by Agents
	 	 	73	 
	9.5. Notice of Default
	 	 	73	 
	9.6. Non-Reliance on Agents and Other Lenders
	 	 	73	 
	9.7. Indemnification
	 	 	74	 
	9.8. Agent in Its Individual Capacity
	 	 	74	 
	9.9. Successor Administrative Agent
	 	 	74	 
	9.10. Execution of Loan Documents
	 	 	74	 
	9.11. Collateral Agent
	 	 	75	 
	9.12. No Other Duties
	 	 	75	 
	 
	 	 	 	 
	SECTION 10. MISCELLANEOUS
	 	 	75	 
	10.1. Amendments and Waivers
	 	 	75	 
	10.2. Notices
	 	 	78	 
	10.3. No Waiver; Cumulative Remedies
	 	 	80	 
	10.4. Survival of Representations and Warranties
	 	 	80	 
	10.5. Payment of Expenses
	 	 	80	 
	10.6. Successors and Assigns; Participations and Assignments
	 	 	81	 
	10.7. Adjustments; Set off
	 	 	84	 
	10.8. Counterparts
	 	 	84	 
	10.9. Severability
	 	 	84	 
	10.10. Integration
	 	 	85	 
	10.11. GOVERNING LAW
	 	 	85	 
	10.12. Submission To Jurisdiction; Waivers
	 	 	85	 
	10.13. Acknowledgements
	 	 	85	 
	10.14. Releases of Guarantees and Liens
	 	 	86	 
	10.15. Confidentiality
	 	 	86	 
	10.16. Satisfaction in Applicable Currency
	 	 	87	 
	10.17. WAIVERS OF JURY TRIAL
	 	 	87	 
	10.18. USA Patriot Act
	 	 	87	 
	10.19. Power of Attorney
	 	 	87	 
	10.20. Amendment and Restatement
	 	 	88	 
	 
	 	 	 	 
	SECTION 11. COLLATERAL ALLOCATION MECHANISM
	 	 	88	 
	11.1. Implementation of CAM
	 	 	88	 
	11.2. Letters of Credit
	 	 	89	 
	11.3. Net Payments Upon Implementation of CAM Exchange
	 	 	90	 






iii











 





SCHEDULES:




	 	 	 

	1.1A

	 	Commitments
	1.1B

	 	Mortgaged Property
	1.1C

	 	Foreign Subsidiary Borrowers
	1.1D

	 	Additional Costs
	4.3

	 	Consents, Authorizations, Filings and Notices
	4.14

	 	Subsidiaries
	4.20(a)

	 	UCC Filing Jurisdictions
	4.20(b)

	 	Mortgage Filing Jurisdictions
	7.2(d)

	 	Existing Indebtedness
	7.3(f)

	 	Existing Liens





EXHIBITS:




	 	 	 

	A

	 	Form of Assignment and Assumption
	B

	 	Form of Compliance Certificate
	C

	 	Form of Guarantee and Collateral Agreement
	D

	 	Forms of U.S. Tax Certificate
	E

	 	Form of Closing Certificate
	F

	 	Matters to be Covered by Foreign Subsidiary Opinion
	G

	 	Form of Joinder Agreement







iv











 





          AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”), dated as of June 17,
2011, among (i) LEAR CORPORATION, a Delaware corporation (the “Company”), (ii) each FOREIGN
SUBSIDIARY BORROWER (as defined below) (together with the Company, the “Borrowers”), (iii)
the several banks and other financial institutions or entities from time to time parties to this
Agreement (the “Lenders”), (iv) BARCLAYS BANK PLC and UBS SECURITIES LLC, as
co-documentation agents, (v) CITIBANK, N.A., as syndication agent, and (vi) JPMORGAN CHASE BANK,
N.A., as administrative agent (in such capacity, the “Administrative Agent”) and as
collateral agent for the Lenders (in such capacity the “Collateral Agent”).



INTRODUCTORY STATEMENT:




          WHEREAS, the Company is party to the Amended and Restated Credit Agreement, dated as of March
18, 2010 (the “Existing Credit Agreement”) with the several banks and other financial
institutions parties thereto and JPMorgan Chase Bank, N.A., as administrative agent;



          WHEREAS, the Company, the Lenders and the Administrative Agent have, subject to the terms and
conditions set forth herein, agreed to amend and restate the Existing Credit Agreement as provided
in this Agreement;



          WHEREAS, it is the intent of the parties hereto that this Agreement not constitute a novation
of the obligations and liabilities existing under the Existing Credit Agreement or evidence
repayment of any such obligations and liabilities and that this Agreement amend and restate in its
entirety the Existing Credit Agreement and re-evidence the obligations of the Company outstanding
thereunder;



          NOW, THEREFORE, in consideration of the above premises, the Company, the Foreign Subsidiary
Borrowers, each Lender (as defined below) and the Administrative Agent agree that on the Closing
Date (as defined below) the Existing Credit Agreement shall be amended and restated in its entirety
as follows:



SECTION 1. DEFINITIONS



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



          “ABR”: for any day, a rate per annum (rounded upwards, if necessary, to the next 1/16
of 1%) equal to the 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 Eurocurrency Rate for Dollars with a
one-month Interest Period commencing on such day plus 1.0%. Any change in the ABR due to a change
in the Prime Rate, the Federal Funds Effective Rate or such Eurocurrency Rate shall be effective as
of the opening of business on the effective day of such change in the Prime Rate, the Federal Funds
Effective Rate or such Eurocurrency Rate, respectively.



          “ABR Loans”: Loans the rate of interest applicable to which is based upon the ABR.
Only Loans denominated in Dollars may be ABR Loans.



          “Acquisition”: any transaction or series of related transactions for the purpose of
or resulting, directly or indirectly, in (a) the acquisition of all or a substantial portion of the
assets of a Person, or of all or a substantial portion of any business or division of a Person, (b)
the acquisition of in excess of 50% of the capital stock, partnership interests, membership
interests or equity of any Person, or otherwise causing any Person to become a Subsidiary, or (c) a
merger or consolidation or any other combination with another Person (other than a Person that is
already a Subsidiary).



 









 





          “Additional Cost”: in relation to any Loan that is denominated in Pounds Sterling,
for any Interest Period, the cost as calculated by the Administrative Agent in accordance with
Schedule 1.1D imputed to each Lender making such Loan of compliance with the mandatory liquid
assets requirements of the Bank of England or the European Central Bank, as applicable, during that
Interest Period, expressed as a percentage.



          “Additional Lender”: as defined in Section 2.19.



          “Administrative Agent”: JPMorgan Chase Bank, N.A., together with its affiliates, as
the arranger of the Commitments and as the administrative agent for the Lenders under this
Agreement and the other Loan Documents, together with any of its successors.



          “Affiliate”: as to any Person, any other Person that, directly or indirectly, is in
control of, is controlled by, or is under common control with, such Person. For purposes of this
definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 10%
or more of the securities having ordinary voting power for the election of directors (or persons
performing similar functions) of such Person or (b) direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise.



          “Agent Indemnitees”: as defined in Section 9.7.



          “Agents”: the collective reference to the Administrative Agent and the Collateral
Agent.



          “Aggregate Exposure”: with respect to any Lender at any time, an amount equal to the
amount of such Lender’s Revolving Commitment then in effect or, if the Revolving Commitments have
been terminated, the amount of such Lender’s Revolving Extensions of Credit then outstanding.



          “Aggregate Exposure Percentage”: with respect to any Lender at any time, the ratio
(expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the Aggregate
Exposure of all Lenders at such time.



          “Agreement”: as defined in the preamble hereto.



          “Agreement Currency”: as defined in Section 10.16.



          “Alternative Currency”: (a) Euros, Canadian Dollars and Pounds Sterling and (b) any
other currency (other than Dollars) that is freely available, freely transferable and freely
convertible into Dollars and in which dealings in deposits are carried on in the London interbank
market, provided that such currency is reasonably acceptable to the Administrative Agent
and, in the case of an Alternative Currency Letter of Credit, the applicable Issuing Lender.



          “Alternative Currency Amount”: with respect to an amount denominated in Dollars, the
equivalent in any Alternative Currency of such amount determined at the Exchange Rate on the date
of determination of such equivalent.



          “Alternative Currency Exposure”: at any time, the sum of (i) the Aggregate
Alternative Currency LC Exposure and (ii) the aggregate Alternative Currency Loan Exposure.



          “Alternative Currency LC Exposure”: at any time, the sum of (a) the Dollar Equivalent
of the aggregate undrawn and unexpired amount of all outstanding Alternative Currency Letters of
Credit at such time plus (b) the Dollar Equivalent, calculated in each case using the Exchange Rate
at the time



2









 




the applicable LC Disbursement is made, of the aggregate principal amount of all LC Disbursements
in respect of Alternative Currency Letters of Credit that have not yet been reimbursed at such
time.




          “Alternative Currency Letter of Credit”: a Letter of Credit denominated in an
Alternative Currency.



          “Alternative Currency Loan”: any Loan denominated in an Alternative Currency.



          “Alternative Currency Loan Exposure”: at any time, the Dollar Equivalent of
outstanding Alternative Currency Loans.



          “Alternative Currency Sublimit”: $200,000,000, as reduced or increased from time to
time in accordance with this Agreement.



          “Applicable Margin”: with regard to each Loan, a percentage per annum determined
pursuant to the Applicable Pricing Grid by reference to the Corporate Ratings in effect at the
time.



          “Applicable Pricing Grid”: the table set forth below:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Corporate Rating	 	Applicable Margin	 	 
	Category	 	(S&P/Moody’s)	 	Eurocurrency Loan	 	ABR Loan	 	Facility Fee Rate
	 	1	 	 	BBB-/Baa3
	 	 	1.375	%	 	 	0.375	%	 	 	0.375	%
	 	2	 	 	BB+/Ba1
	 	 	1.750	%	 	 	0.750	%	 	 	0.500	%
	 	3	 	 	BB/Ba2
	 	 	2.250	%	 	 	1.250	%	 	 	0.500	%
	 	4	 	 	BB-/Ba3
	 	 	2.750	%	 	 	1.750	%	 	 	0.500	%
	 	5	 	 	B+/B1
	 	 	3.000	%	 	 	2.000	%	 	 	0.500	%






          “Application”: an application, in such form as the Issuing Lender may specify from
time to time, requesting the Issuing Lender to open a Letter of Credit.



          “Approved Fund”: 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 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.



          “Arrangers”: the collective reference to J.P. Morgan Securities LLC, Citigroup Global
Markets Inc. and Barclays Capital, the investment banking division of Barclay Bank PLC.



          “Asset Sale”: any Disposition of property or series of related Dispositions of
property excluding any such Disposition permitted by Section 7.5(a) through (j).



          “Assignee”: as defined in Section 10.6(b).



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



3









 





          “Available Revolving Commitment”: as to any Lender at any time, an amount equal to
the excess, if any, of (a) such Lender’s Revolving Commitment then in effect over (b) such Lender’s
Revolving Extensions of Credit then outstanding.



          “Bankruptcy Event”: 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
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.



          “Benefited Lender”: as defined in Section 10.7(a).



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



          “Borrowers”: the Company and the Foreign Subsidiary Borrowers.



          “Borrowing”: 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.



          “Borrowing Date”: any Business Day specified by a Borrower as a date on which a
Borrower requests the Lenders to make Revolving Loans hereunder.



          “Business”: as defined in Section 4.16(b).



          “Business Day”: a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close; provided that, when used
in connection with a Eurocurrency Loan or Alternative Currency Letter of Credit, the term
“Business Day” shall also exclude (i) any day on which banks are not open for dealings in
dollar deposits or deposits in the applicable Alternative Currency in the London interbank market,
(ii) in the case of a Eurocurrency Loan or Alternative Currency Letter of Credit denominated in
Euros, any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer
System is not open for settlement of payment in Euros or (iii) in the case of a Eurocurrency Loan
or Letter Credit denominated in an Alternative Currency other than Euro, any day on which banks are
not open for dealings in such Alternative Currency in the city which is the principal financial
center of the country of issuance of the applicable Alternative Currency.



          “CAM”: the mechanism for the allocation and exchange of interests in the Credit
Facilities and collections thereunder established under Section 11.



          “CAM Exchange”: the exchange of the Lender’s interests provided for in Section 11.1.



4









 





          “CAM Exchange Date”: the date on which (a) any event referred to in Section 8.1(f)
shall occur in respect of any Borrower or (b) an acceleration of the maturity of the Loans pursuant
to Section 8 shall occur.



          “CAM Percentage”: as to each Lender, a fraction, expressed as a decimal, of which (a)
the numerator shall be the aggregate Dollar Equivalent (determined on the basis of Exchange Rates
prevailing on the CAM Exchange Date) of the Designated Obligations owed to such Lender and such
Lender’s participation in the aggregate L/C Obligations immediately prior to the CAM Exchange Date
and (b) the denominator shall be the aggregate Dollar Equivalent (as so determined) of the
Designated Obligations owed to all the Lenders and the aggregate L/C Obligations immediately prior
to such CAM Exchange Date. For purposes of computing each Lender’s CAM Percentage, all Designated
Obligations and LC Exposures which are denominated in Alternative Currencies shall be translated
into Dollars at the Exchange Rate in effect on the CAM Exchange Date.



          “Canadian Dollars”: dollars in the lawful currency of Canada.



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



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



          “Cash Equivalents”: (a) securities issued or unconditionally guaranteed or insured by
the United States Government, the Canadian Government, Japan or any member of the European Union or
any other government approved by the Administrative Agent (which approval shall not be unreasonably
withheld), (b) securities issued or unconditionally guaranteed or insured by any state of the
United States of America or province of Canada or any agency or instrumentality thereof having
maturities of not more than twelve months from the date of acquisition and having one of the two
highest ratings obtainable from either S&P or Moody’s, (c) time deposits, certificates of deposit
and bankers’ acceptances having maturities of not more than twelve months from the date of
acquisition, in each case with any Lender (or any affiliate of any thereof) or with any commercial
bank organized under the laws of the United States of America or any state thereof or the District
of Columbia, Japan, Canada or any member of the European Union or any U.S. branch of a foreign bank
having at the date of acquisition capital and surplus of not less than $100,000,000, (d) repurchase
obligations with a term of not more than seven days for underlying securities of the types
described in clauses (a), (b) and (c) entered into with any bank meeting the qualifications
specified in clause (c) above, (e) commercial paper issued by the parent corporation of any Lender
and commercial paper rated, at the time of acquisition, at least “A 1” or the equivalent thereof by
S&P or “P 1” or the equivalent thereof by Moody’s and in either case maturing within twelve months
after the date of acquisition, (e) deposits maintained with money market funds having total assets
in excess of $300,000,000, (f) demand deposit accounts maintained in the ordinary course of
business with banks or trust companies, (g) temporary deposits, of amounts received in the ordinary
course of business pending disbursement of such amounts, in demand deposit accounts in banks
outside the United States, (h) deposits in mutual funds which invest substantially all of their
assets in preferred equities issued by U.S. corporations rated at least “AA” (or the equivalent
thereof) by S&P; provided, that notwithstanding the foregoing, Cash Equivalents shall, in
any event, include all cash and cash equivalents as set forth in



5









 







the Company’s balance sheet prepared in accordance with GAAP, and (i) other investments
requested by the Company and approved by the Administrative Agent.



          “Category”: as set forth in the Applicable Pricing Grid.



          “Change of Control”: (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 Securities and Exchange Commission thereunder as in effect on the
date hereof), of Capital Stock representing more than 35% of the aggregate ordinary voting power
represented by the issued and outstanding Capital Stock of the Company; or (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.



          “Chinese Acceptance Notes”: acceptance notes issued by Chinese banks in the ordinary
course of business for the account of any direct or indirect Chinese Subsidiary of the Company or
customers thereof to effect the current payment of goods and services in accordance with customary
trade terms in China.



          “Closing Date”: the date on which the conditions precedent set forth in Section 5.1
shall have been satisfied or waived and the funding of the initial Loans occurs, which date is June
17, 2011.



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



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



          “Collateral Agent”: as defined in the preamble hereto.



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



          “Company”: as defined in the preamble hereto.



          “Compliance Certificate”: a certificate of the Company duly executed by a Responsible
Officer, on behalf of the Company, substantially in the form of Exhibit B.



          “Conduit Lender”: any special purpose corporation organized and administered by any
Lender for the purpose of making Loans otherwise required to be made by such Lender and designated
by such Lender in a written instrument; provided, that the designation by any Lender of a
Conduit Lender shall not relieve the designating Lender of any of its obligations to fund a Loan
under this Agreement if, for any reason, its Conduit Lender fails to fund any such Loan, and the
designating Lender (and not the Conduit Lender) shall have the sole right and responsibility to
deliver all consents and waivers required or requested under this Agreement with respect to its
Conduit Lender, and provided, further, that no Conduit Lender shall (a) be entitled
to receive any greater amount pursuant to Section 2.15, 2.16, 2.17 or 10.5 than the designating
Lender would have been entitled to receive in respect of the extensions of credit made by such
Conduit Lender or (b) be deemed to have any Commitment.



          “Consolidated Assets”: at a particular date, all amounts which would be included
under total assets on a consolidated balance sheet of the Company and its Subsidiaries as at such
date, determined in accordance with GAAP.



6









 





          “Consolidated EBITDA”: for any period (and calculated without duplication),
Consolidated Net Income for such period excluding (a) any extraordinary and non-recurring non-cash
expenses, losses, income or gains as determined in accordance with GAAP, (b) charges, premiums,
expenses and any gains associated with the discharge of Indebtedness, (c) charges relating to
Accounting Standards Codification 715 (Topic 715, “Compensation—Retirement Benefits”) (or any
other Accounting Standards Codification having a similar result or effect), (d) any non-cash income
included, and any non-cash deductions made, in determining Consolidated Net Income for such period
(other than any deductions which represent the accrual of or a reserve for the payment of cash
charges in any future period), provided that cash payments made in any subsequent period in
respect of any item for which any such non-cash deduction was excluded in a prior period shall be
deemed to reduce Consolidated Net Income by such amount in such subsequent period, (e) stock
compensation expense and non-cash equity linked expense, (f) deferred financing fees (and any
write-offs thereof), (g) write-offs of goodwill, (h) an aggregate amount of up to $150,000,000 for
each fiscal year (provided that up to $25,000,000 of such amount may be carried forward to
the following fiscal year or carried back to the preceding fiscal year) in respect of
restructuring, restructuring-related or other similar charges, (i) fees, costs, charges,
commissions and expenses or other charges incurred during such period in connection with this
Agreement or any Permitted Acquisition or debt financing permitted hereunder, (j) foreign exchange
gains and losses and (k) any state or local taxes, plus, to the extent deducted in determining
Consolidated Net Income, the sum of (A) Consolidated Interest Expense, (B) any expenses for taxes,
(C) depreciation and amortization expense, (D) minority interests in income (or losses) of
Subsidiaries and (E) net equity earnings (and losses) in Affiliates (excluding Subsidiaries). For
purposes of calculating the ratios set forth in Section 7.1(a) and (b), Consolidated EBITDA for any
fiscal period shall in any event include the Consolidated EBITDA for such fiscal period of any
entity acquired by the Company or any of its Subsidiaries in a Permitted Acquisition during such
period.



          “Consolidated Interest Expense”: for any period, the amount which would, in
conformity with GAAP, be set forth opposite the caption “interest expense” (or any like caption) on
a consolidated income statement of the Company and its Subsidiaries for such period and, to the
extent not otherwise included in “interest expense”, any other discounts and expenses comparable to
or in the nature of interest under any Receivable Financing Transaction; provided, that
Consolidated Interest Expense for any period shall (a) exclude (i) fees payable in respect of such
period under Section 2.5, (ii) any amortization or write-off of deferred financing fees during such
period, (iii) premiums paid in connection with the discharge of Indebtedness, and (iv) any non-cash
expense and (b) include any interest income during such period.



          “Consolidated Leverage Ratio”: as at the last day of any period of four consecutive
fiscal quarters, the ratio of (a) Consolidated Total Debt on such day to (b) Consolidated EBITDA
for such period.



          “Consolidated Net Income”: for any period, the consolidated net income (or deficit)
of the Company and its Subsidiaries for such period (taken as a cumulative whole), determined in
accordance with GAAP; provided that any provision for post-retirement medical benefits, to
the extent such provision calculated under Accounting Standards Codification 715 (Topic 715,
“Compensation—Retirement Benefits”) (or any other Accounting Standards Codification having a
similar result or effect) exceeds actual cash outlays calculated on the “pay as you go” basis,
shall not to be taken into account.



          “Consolidated Revenues”: for any fiscal period, the consolidated revenues of the
Company and its Subsidiaries for such period, determined in accordance with GAAP.



7









 





          “Consolidated Senior Secured Debt”: as of any date of determination, Consolidated
Total Debt (calculated without giving effect to any netting of cash and Cash Equivalents) secured
by a Lien on any of the assets of the Company or any of its Subsidiaries.



          “Consolidated Senior Secured Leverage Ratio”: as at the last day of any period of four
consecutive fiscal quarters, the ratio of (a) the sum of (x) Consolidated Senior Secured Debt on
such day plus, without duplication, (y) the outstanding amount of Receivables Financing
Transactions to (b) Consolidated EBITDA for such period.



          “Consolidated Total Tangible Assets”: as of any date of determination thereof, the
aggregate consolidated book value of the assets of the Company and its Subsidiaries (other than
patents, patent rights, trademarks, trade names, franchises, copyrights, licenses, permits,
goodwill and other similar intangible assets properly classified as such in accordance with GAAP)
after all appropriate adjustments (including, without limitation, reserves for doubtful
receivables, obsolescence, depreciation and amortization), all as set forth in the most recent
consolidated balance sheet of the Company delivered pursuant to Section 6.1 on such date of
determination, determined on a consolidated basis in accordance with GAAP.



          “Consolidated Total Debt”: at any date, the aggregate principal amount of all
Indebtedness of the Company and its Subsidiaries at such date (net of unencumbered cash and Cash
Equivalents of the Company and its Subsidiaries not to exceed $700,000,000), determined on a
consolidated basis, that would be required to be shown as debt on a balance sheet of the Company
prepared in accordance with GAAP, but excluding Chinese Acceptance Notes and Earn-outs.



          “Contractual Obligation”: as to any Person, any provision of any security issued by
such Person or of any agreement, instrument or other undertaking to which such Person is a party or
by which it or any of its property is bound.



          “Corporate Rating”: as of any date, the corporate credit and/or corporate family
rating assigned by the Rating Agencies with respect to the Company. For purposes of the foregoing:
(i) if the ratings established by the Rating Agencies for the Company shall fall within the same
Category, the Applicable Margin and Facility Fee Rate shall be determined by reference to such
Category, (ii) if each Rating Agency shall have in effect a rating for the Company and such ratings
shall fall within different Categories, the Applicable Margin and Facility Fee Rate shall be based
on (a) the higher of the two ratings if one rating is one Category lower than the other, (b) one
Category next below that of the higher rating if one rating is two Categories lower than the other
and (c) one Category higher than the lower rating if one rating is more than two Categories lower
than the other, (iv) if only one Rating Agency shall have in effect a rating for the Company, the
Applicable Margin and Facility Fee Rate shall be determined by reference to the Category in which
such rating falls, (v) if no Rating Agency shall have in effect a rating for the Company (other
than by reason of the circumstances referred to in the penultimate sentence of this definition),
then each Rating Agency shall be deemed to have established a rating in Category 5, (vi) if at any
time an Event of Default has occurred and is continuing, then each Rating Agency shall be deemed to
have established a rating in Category 5 and (vii) if the ratings established or deemed to have been
established by a Rating Agency for the Company shall be changed (other than as a result of a change
in the rating system of such Rating Agency), such change shall be effective as of the date on which
it is first announced by the applicable Rating Agency, irrespective of when notice of such change
shall have been furnished by the Company to the Administrative Agent and the Lenders. Each change
in the Applicable Margin and Facility Fee Rate 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. If the rating system of any Rating Agency shall change, or if any Rating
Agency shall cease to be in the business of rating corporate obligors, the Company and the Lenders
shall negotiate in good faith to amend



8









 







the definition of the Applicable Margin to reflect such changed rating system or the
unavailability of ratings from such Rating Agency and, pending the effectiveness of any such
amendment, the Applicable Margin and Facility Fee Rate shall, at the option of the Company, be
determined (i) as set forth above using the rating from such Rating Agency most recently in effect
prior to such change or cessation or (ii) disregarding the rating from such Rating Agency.



          “Credit Party”: the Administrative Agent, the Issuing Lender, the Swingline Lender or
any other Lender.



          “Default”: any of the events specified in Section 8.1, whether or not any requirement
for the giving of notice, the lapse of time, or both, has been satisfied.



          “Defaulting Lender”: any Lender that (a) has failed, within two 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 participation 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 Business Days
after required 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.



          “Designated Obligations”: Obligations consisting of (a) the principal of and interest
on Loans and (b) reimbursement obligations in respect of Letters of Credit.



          “Disqualified Stock”: respect to any Person, any Capital Stock of such Person which
by its terms (or by the terms of any security into which it is convertible or for which it is
exchangeable) or upon the happening of any event:




	 	(1)	 	matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise;






	 	(2)	 	is convertible or exchangeable for Indebtedness or Disqualified
Stock (excluding Capital Stock which is convertible or exchangeable solely at
the option of the Company or a Subsidiary); or






	 	(3)	 	is redeemable at the option of the holder of the Capital Stock
in whole or in part,




in each case on or prior to the date that is 91 days after the earlier of (a) the Revolving
Termination Date and (b) the last scheduled maturity date of any Incremental Facility,
provided that only the portion of Capital Stock which so matures or is mandatorily
redeemable, is so convertible or exchangeable or is redeemable at the option of the holder thereof
prior to such date will be deemed to be Disqualified Stock.







9









 








          “Disposition”: with respect to any property, any sale, lease, sale and leaseback,
assignment, conveyance, transfer or other disposition thereof, excluding any such transaction that
yields Net Cash Proceeds to any Group Member (valued at the initial principal amount thereof in the
case of non-cash proceeds consisting of notes or other debt securities and valued at fair market
value in the case of other non-cash proceeds) of $1,000,000 or less. The terms “Dispose” and
“Disposed of” shall have correlative meanings.



          “Dollar Equivalent”: with respect to an amount denominated in any currency other than
Dollars, the equivalent in Dollars of such amount determined at the Exchange Rate on the date of
determination of such equivalent.



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



          “Domestic Loan Party”: the Company and each Loan Party which is a Domestic
Subsidiary.



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



          “Earn-outs”: with respect to any Person, obligations of such Person arising from a
Permitted Acquisition which are payable to the seller based on the achievement of specified
financial results over time. The amount of any Earn-outs at any time for the purpose of this
Agreement shall be the amount earned and due to be paid at such time.



          “Eligible Assignee”: (a) a commercial bank, financial institution, financial company,
fund or insurance company that is engaged in making, purchasing, holding or investing in bank loans
and similar extensions of credit in the ordinary course or (b) any other Person that is not a
competitor of the Company or any of its Subsidiaries or an affiliate of any such competitor.



          “Environmental Laws”: any and all foreign, Federal, state, local or municipal laws,
rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental
Authority or other Requirements of Law (including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of human health or the environment, as now
or may at any time hereafter be in effect.



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



          “ERISA Affiliate”: any trade or business (whether or not incorporated) that, together
with any Loan Party, 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”: (a) any Reportable Event; (b) the existence with respect to any Plan of
a non-exempt Prohibited Transaction; (c) any failure by any Single Employer Plan to satisfy the
minimum funding standards (within the meaning of Sections 412 or 430 of the Code or Section 302 of
ERISA) applicable to such Single Employer Plan, whether or not waived; (d) a determination that any
Single Employer Plan is in “at risk” status (within the meaning of Section 430 of the Code or Title
IV of ERISA); (e) the incurrence by any Loan Party or any of its ERISA Affiliates of any liability
under Title IV of ERISA with respect to the termination of any Single Employer Plan, including but
not limited to the imposition of any Lien in favor of the PBGC or any Single Employer Plan; (f) the
incurrence by any Loan



10









 




Party or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by any Loan Party or any of its
ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan from any Loan Party or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination
that a Multiemployer Plan is, or is expected to be, Insolvent, in Reorganization, or in endangered
or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of
ERISA.




          “Euro”: the lawful single currency of participating member states of the European
Monetary Union.



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



          “Eurocurrency Base Rate”: with respect to each day during each Interest Period
pertaining to (a) a Eurocurrency Loan denominated in a currency other than Euro, the rate per annum
determined on the basis of the rate for deposits in such currency for a period equal to such
Interest Period commencing on the first day of such Interest Period appearing on Reuters Screen
LIBOR01 page (or the relevant Reuters Screen display page for such currency as determined by the
Administrative Agent) as of 11:00 A.M., Local Time, two Business Days prior to the beginning of
such Interest Period (or, in the case of any Eurocurrency Loan denominated in Pounds Sterling, on
the first day of such Interest Period) and (b) a Eurocurrency Loan denominated in Euro, the rate
per annum appearing on the Reuters Screen EURIBORO1 page (it being understood that this rate is the
Euro interbank offered rate (known as the “ERIBOR Rate”) sponsored by the Banking Federation of the
European Union (known as the “FBE”) and the Financial Markets Association (known as the
“ACI”) as of approximately 11:00 a.m., Local Time, two Business Days prior to the commencement of
such Interest Period, as the rate for deposits in Euro with a maturity comparable to such Interest
Period. In the event that such rate does not appear on Reuters Screen LIBOR01 or EURIBOROI page
(or other applicable Reuters Screen page) (or otherwise on such screen), the “Eurocurrency Base
Rate” for a currency shall be determined by reference to such other comparable publicly available
service for displaying eurocurrency rates as may be reasonably selected by the Administrative Agent
or, in the absence of such availability, by reference to the rate at which the Administrative Agent
is offered deposits in the applicable currency of $5,000,000 or the Dollar Equivalent thereof at or
about 11:00 A.M., Local Time, two Business Days prior to the beginning of such Interest Period (or,
in the case of any Eurocurrency Loan denominated in Pounds Sterling, on the first day of such
Interest Period) in the interbank eurocurrency market where its eurocurrency and foreign currency
and exchange operations for such currency are then being conducted for delivery on the first day of
such Interest Period for the number of days comprised therein.



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



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



Eurocurrency Base Rate

1.00 – Eurocurrency Reserve Requirements



11









 




; provided, however, that, if such Eurocurrency Loan is denominated in Pounds
Sterling, then the “Eurocurrency Rate” shall be the Eurocurrency Rate in effect for such Interest
Period plus the Additional Cost.




          “Eurocurrency Tranche”: the collective reference to Eurocurrency Loans denominated in
the same currency the then current Interest Periods with respect to all of which begin on the same
date and end on the same later date (whether or not such Loans shall originally have been made on
the same day).



          “Event of Default”: any of the events specified in Section 8.1, provided that
any requirement for the giving of notice, the lapse of time, or both, has been satisfied.



          “Exchange Rate”: with respect to any non-Dollar currency on any date, the rate at
which such currency may be exchanged into Dollars, as set forth on such date on the relevant
Reuters currency page at or about 11:00 A.M., London time, on such date. In the event that such
rate does not appear on any Reuters currency page, the “Exchange Rate” with respect to such
non-Dollar currency shall be determined by reference to such other publicly available service for
displaying exchange rates as may be agreed upon by the Administrative Agent and the Company or, in
the absence of such agreement, such “Exchange Rate” shall instead be the Administrative Agent’s
spot rate of exchange in the interbank market where its foreign currency exchange operations in
respect of such non-Dollar currency are then being conducted, at or about 10:00 A.M., local time,
on such date for the purchase of Dollars with such non-Dollar currency, for delivery two Business
Days later; provided, that if at the time of any such determination, no such spot rate can
reasonably be quoted, the Administrative Agent may use any reasonable method as it deems applicable
to determine such rate, and such determination shall be conclusive absent manifest error.



          “Exchange Rate Date”: if on any date any outstanding Loan or Letter of Credit is (or
any Loan or Letter of Credit that has been requested at such time would be) denominated in an
Alternative Currency, each of: (a) a Business Day on or about the last day of each calendar quarter
selected by the Administrative Agent, (b) if an Event of Default has occurred and is continuing,
any Business Day designated as an Exchange Rate Date by the Administrative Agent, (c) if the Total
Revolving Extensions of Credit exceed 75% of the Total Revolving Commitments, any Business Day
designated as an Exchange Rate Date by the Administrative Agent, and (d) each date (with such date
to be reasonably determined by the Administrative Agent) that is on or about the date of (i) a
request for a Borrowing or (ii) each request for the issuance, amendment, renewal or extension of
any Letter of Credit.



          “Excluded Property”: (i) property owned by any Excluded Subsidiary, Foreign
Subsidiary or U.S. Foreign Holdco; (ii) receivables and customary related rights and assets subject
to a Receivables Financing Transaction; (iii) any property to the extent that a grant of a security
interest in such property pursuant to the Security Documents is prohibited by any Requirements of
Law of a Governmental Authority, requires a consent not obtained of any Governmental Authority
pursuant to such Requirement of Law or is prohibited by, or constitutes a breach or default under
or results in the termination of or requires any consent not obtained under, any contract, license,
agreement, instrument or other document evidencing or giving rise to such property or, in the case
of any Investment, Pledged Stock or Pledged Note (as such terms are defined in the Security
Documents), any applicable shareholder or similar agreement, except to the extent that such
Requirement of Law or the term in such contract, license, agreement, instrument or other document
or shareholder or similar agreement providing for such prohibition, breach, default or termination
or requiring such consent is ineffective under applicable law;



12









 




(iv) Vehicles (as defined in the Guarantee and Collateral Agreement) and title documents
therefor; (v) any Capital Stock held by a Loan Party in (A) a joint venture, so long as (x) not
more than 662⁄3% of the aggregate voting Capital Stock of such joint venture is held by the Loan
Parties in the aggregate and (y) such Capital Stock is not subject to a Lien in favor of any other
Person, (B) any direct holding company of one or more joint ventures under clause (A) of this
clause (v), provided that such holding company does not engage in any business or own any
assets other than owning the Capital Stock of such joint ventures, (C) a joint venture to the
extent that a pledge of Capital Stock of such joint venture pursuant to the Loan Documents is
prohibited by the shareholders (or similar) agreement governing such joint venture or by the terms
of any agreement governing Indebtedness incurred by such joint venture and (D) Wuhan Lear-DFM Auto
Electric Company, Limited (China) to the extent such Person remains a joint venture; (vi) any
property with respect to which the Administrative Agent determines that the cost or burden of
subjecting such property to a Lien under the Security Documents is disproportionate to the value of
the collateral security afforded thereby; (vii) real property owned by the Loan Parties having a
fair market value estimated in good faith by the Company of less than $5,000,000, provided
that the aggregate fair market value of all such owned real property located in the U.S. (as
estimated in good faith by the Company) that is Excluded Property shall not exceed $35,000,000 as
of December 31, 2010 and $35,000,000 as of the date the financial statements are delivered for the
end of any fiscal year of the Company; (viii) interests in real property leased, subleased or
licensed to any of the Loan Parties; (ix) thirty-five percent (35%) of the total outstanding voting
Capital Stock of each new and existing Foreign Subsidiary and of each new and existing U.S. Foreign
Holdco; and (x) the Capital Stock of any Immaterial Foreign Subsidiary if a security interest
therein cannot be perfected by filing of a Uniform Commercial Code financing statement.




          “Excluded Subsidiary”: each Subsidiary of a Foreign Subsidiary or of a U.S. Foreign
Holdco and, with respect to any requirement to enter into any Security Document or guaranty, any
Special Purpose Subsidiary.



          “Existing Credit Agreement”: as defined in the recitals hereto.



          “Existing Letters of Credit”: as defined in Section 3.11.



          “Extension of Credit”: as to any Lender, the making of a Loan by such Lender or the
issue of, or extension of the expiry date of, any Letter of Credit.



          “Facility”: (a) the revolving credit facility made available to the Borrowers
pursuant to this Agreement (the “Revolving Facility”) and (b) any Incremental Facility.



          “Facility Fee Rate”: the facility fee rate determined pursuant to the Applicable
Pricing Grid by reference to the Corporate Ratings in effect at the time.



          “FATCA”: Sections 1471 through 1474 of the Code, as of the date of this Agreement (or
any amended or successor version that is substantially comparable and not materially more onerous
to comply with), and any current or future regulations issued thereunder or official
interpretations thereof.



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



13









 





          “Fee Payment Date”: (a) the third Business Day following the last day of each March,
June, September and December and (b) the last day of the Revolving Commitment Period.



          “Foreign Subsidiary”: any Subsidiary of the Company that is not a Domestic Subsidiary.



          “Foreign Subsidiary Borrower”: each Foreign Subsidiary listed as a Foreign Subsidiary
Borrower on Schedule 1.1C as amended from time to time in accordance with Section 10.1(c).



          “Foreign Subsidiary Opinion”: with respect to any Foreign Subsidiary Borrower, a
legal opinion of counsel to such Foreign Subsidiary Borrower addressed to the Administrative Agent
and the Lenders covering the matters set forth on Exhibit F, with such assumptions, qualifications
and deviations therefrom as the Administrative Agent shall approve (such approval not to be
unreasonably withheld).



          “4% Subsidiary”: at any time, any Subsidiary of the Company which, based on the
financial statements most recently delivered pursuant to Section 6.1(a)or 6.1(b), constituted no
more than 4% of Consolidated Assets or for the twelve month period ended on the date of such
financial statements represented no more than 4% of Consolidated Revenues, in each case determined
using the equity method of accounting in accordance with GAAP.



          “Funding Office”: the office of the Administrative Agent specified in Section 10.2 or
such other office as may be specified from time to time by the Administrative Agent as its funding
office by written notice to the Company and the Lenders.



          “GAAP”: generally accepted accounting principles in the United States as in effect
from time to time, except that for purposes of Section 7.1, GAAP shall be determined on the basis
of such principles in effect on the date hereof and consistent with those used in the preparation
of the most recent audited financial statements delivered pursuant to Section 6.1(a) of the
Existing Credit Agreement.



          “Governmental Authority”: any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative
functions of or pertaining to government (including any supra-national bodies such as the European
Union or the European Central Bank), any securities exchange and any self-regulatory organization
(including the National Association of Insurance Commissioners) and any group or body charged with
setting financial accounting or regulatory capital rules or standards (including, without
limitation, the Financial Accounting Standards Board, the Bank for International Settlements or the
Basel Committee on Banking Supervision or any successor or similar authority to any of the
foregoing).



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



          “Guarantee and Collateral Agreement”: the Amended and Restated Guarantee and
Collateral Agreement to be executed and delivered by the Company and each Guarantor, substantially
in the form of Exhibit C.



          “Guarantee Obligation”: as to any Person (the “guaranteeing person”), any
obligation, including a reimbursement, counterindemnity or similar obligation, of the guaranteeing
Person that guarantees or in effect guarantees, or which is given to induce the creation of a
separate obligation by another Person (including any bank under any letter of credit) that
guarantees or in effect guarantees, any Indebtedness, leases, dividends or other obligations (the
“primary obligations”) of any other third Person (the “primary obligor”) in any
manner, whether directly or indirectly, including any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or any



14









 




property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for
the purchase or payment of any such primary obligation or (2) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing person
shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount
for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying
such Guarantee Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability
in respect thereof as determined by the Company in good faith.




          “Guarantor”: each Domestic Subsidiary of the Company other than (a) Excluded
Subsidiaries, (b) Immaterial Domestic Subsidiaries (provided that all Immaterial Domestic
Subsidiaries excluded under this clause (b) and Section 6.9(c)(B) shall not, following the period
described in the first parenthetical phrase of Section 6.9(c), contribute in the aggregate more
than 7.5% of Consolidated Assets or more than 7.5% of Consolidated Revenues based on the financial
statements most recently delivered pursuant to Section 6.1(a) or 6.1(b)), (c) joint ventures in
which not more than 85% of the aggregate voting Capital Stock of such joint venture is held by the
Loan Parties in the aggregate, (d) any direct holding company of one or more joint ventures under
clause (c) hereof, provided that such holding company does not engage in any business or
own any assets other than owning the Capital Stock of such joint ventures and (e) U.S. Foreign
Holdcos.



          “IAC”: International Automotive Components Group North America, LLC and its
subsidiaries



          “Immaterial Subsidiary”: at any time, any Subsidiary of the Company which, based on
the financial statements most recently delivered pursuant to Section 6.1(a) or (b), constituted
less than 2.5% of Consolidated Assets or, for the twelve month period ended on the date of such
financial statements, represented less than 2.5% of Consolidated Revenues, in each case determined
using the equity method of accounting in accordance with GAAP.



          “Immaterial Domestic Subsidiary”: a Domestic Subsidiary which is an Immaterial
Subsidiary.



          “Immaterial Foreign Subsidiary”: a Foreign Subsidiary which is an Immaterial
Subsidiary.



          “Incremental Amendment”: as defined in Section 2.19.



          “Incremental Facility”: as defined in Section 2.19.



          “Incremental Facility Closing Date”: as defined in Section 2.19.



          “Incremental Term Facility”: as defined in Section 2.19.



          “Incremental Revolving Facility”: as defined in Section 2.19.



15









 





          “Indebtedness”: of any Person at any date, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase
price of property or services, which would, in accordance with GAAP be shown on the liability side
of the balance sheet, (c) all obligations of such Person evidenced by notes, bonds, debentures or
other similar instruments, (d) all indebtedness created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all Capital Lease Obligations of such
Person, (f) all obligations of such Person, contingent or otherwise, as an account party or
applicant under or in respect of acceptances, letters of credit, surety bonds or similar
arrangements, (g) all Guarantee Obligations of such Person in respect of obligations of the kind
referred to in clauses (a) through (f) above, (h) all obligations of the kind referred to in
clauses (a) through (g) above secured by (or for which the holder of such obligation has an
existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts
and contract rights) owned by such Person, whether or not such Person has assumed or become liable
for the payment of such obligation, provided, if such Person has not assumed or become
liable for such obligation, the amount of such Indebtedness shall be deemed to be the lesser of the
fair market value of such property or the obligation being secured thereby and (i) for the purposes
of Section 8.1(e) only, all obligations of such Person in respect of Swap Agreements, but excluding
(i) trade and other accounts payables incurred in the ordinary course of such Person’s business,
(ii) accrued expenses and deferred compensation arrangements in the ordinary course, and (iii)
advance payments in the ordinary course. 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 expressly provide that such Person is not liable therefor.



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



          “Insolvent”: pertaining to a condition of Insolvency.



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



          “Interest Coverage Ratio”: for any period, the ratio of (a) Consolidated EBITDA for
such period to (b) Consolidated Interest Expense for such period.



          “Interest Payment Date”: (a) as to any Eurocurrency Loan, the last day of each
Interest Period applicable to such Loan and the Revolving Termination Date, as applicable,
provided that if any Interest Period for a Eurocurrency Loan exceeds three months, the
respective dates that fall every three months after the beginning of such Interest Period shall
also be Interest Payment Dates; (b) as to any ABR Loan (other than any Swingline Loan), the last
day of each calendar quarter and the Maturity Date or Revolving Termination Date, as applicable,
(c) as to any Loan (other than a Revolving Loan that is an ABR Loan and any Swingline Loan), the
date of any repayment or prepayment made in respect thereof, (d) as to any ABR Loan if an Event of
Default is in existence, the last day of each calendar month, and (e) as to any Swingline Loan, the
day that such Loan is required to be repaid.



16









 





          “Interest Period”: as to any Eurocurrency Loan, (a) initially, the period commencing
on the borrowing or conversion date, as the case may be, with respect to such Eurocurrency Loan and
ending one or two weeks or one, two, three or six months (or, with respect to Revolving Loans, if
available to all participating Lenders, nine or twelve months) thereafter, as selected by the
relevant Borrower in its notice of borrowing or notice of conversion, as the case may be, given
with respect thereto; and (b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurocurrency Loan and ending one or two weeks or one,
two, three or six months thereafter (or, with respect to Revolving Loans, if available to all
participating Lenders, nine or twelve months), as selected by the relevant Borrower by irrevocable
notice to the Administrative Agent not later than 11:00 A.M., Local Time, on the date that is three
Business Days prior to the last day of the then current Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest Periods are subject to
the following:




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




          (ii) a Borrower may not select an Interest Period that would extend beyond the
Revolving Termination Date; and




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



          “Investments”: an advance, loan, extension of credit (by way of guaranty or
otherwise, but excluding trade debt incurred in the ordinary course of business) or capital
contribution to, or purchase any Capital Stock, bonds, notes, loans, debentures or other debt
securities of, or any assets constituting a business unit of, or any other similar investment in,
any Person. The amount of any Investment by any Person on any date of determination shall be the
acquisition price of the gross assets acquired (including any liability assumed by such Person to
the extent such liability would be reflected on a balance sheet prepared in accordance with GAAP)
plus all additional capital contributions or purchase price paid in respect thereof,
without any adjustments for increases or decreases in value, or write-ups, write-downs or
write-offs with respect to such Investment minus the amount of all cash returns of
principal or capital thereon, cash dividends thereon and other cash returns on investment thereon
or liabilities expressly assumed by another Person (other than a Group Member) in connection with
the sale of such Investment. Whenever the term “outstanding” is used in this Agreement with
reference to an Investment, it shall take into account the matters referred to in the preceding
sentence.



          “Issuing Lender”: JPMorgan Chase Bank, N.A. and any other Lender approved by the
Administrative Agent and the Company that has agreed in its sole discretion to act as an “Issuing
Lender” hereunder (including the issuer of any Existing Letters of Credit), or any of their
respective affiliates, in each case in its capacity as issuer of any Letter of Credit. Each
reference herein to “the Issuing Lender” shall be deemed to be a reference to the relevant Issuing
Lender.



          “Joinder Agreement”: a joinder agreement, substantially in the form of Exhibit G
hereto, pursuant to which a Foreign Subsidiary becomes a Foreign Subsidiary Borrower hereunder.



          “Judgment Currency”: as defined in Section 10.16.



17









 





          “Junior Indebtedness”: (i) unsecured debt securities issued by the Company or any
Domestic Subsidiary, (ii) unsecured term loans borrowed by the Company or any Domestic Subsidiary
and (iii) Indebtedness of any Domestic Loan Party which is subordinated in right of payment to any
Obligations (as defined in the Guarantee and Collateral Agreement). For the avoidance of doubt,
Junior Indebtedness does not include (i) intercompany Indebtedness and (ii) Loans.



          “LC Basket Limit”: $225,000,000 less the aggregate amount of the Incremental
Revolving Facility and any Incremental Facility added to this Agreement pursuant to Section 2.19
that is a revolving facility to the extent such Incremental Revolving Facility or Incremental
Facility may be used for letters of credit.



          “LC Commitment”: $200,000,000.



          “LC Disbursement”: a payment made by the Issuing Lender pursuant to a Letter of
Credit.



          “LC Exposure”: at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit (other than Alternative Currency Letters of Credit) at such time, (b)
the aggregate amount of all LC Disbursements under Letters of Credit (other than Alternative
Currency Letters of Credit) that have not yet been reimbursed by or on behalf of the Company at
such time and (c) the Alternative Currency LC Exposure at such time. The LC Exposure of any Lender
at any time shall be its Revolving Percentage of the total LC Exposure at such time.



          “L/C Obligations”: at any time, an amount equal to the sum of (a) the aggregate then
undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount
of drawings under Letters of Credit that have not then been reimbursed pursuant to Section 3.5.



          “LC Participants”: the collective reference to all the Lenders other than the Issuing
Lender.



          “Lenders”: as defined in the preamble; provided, that unless the context
otherwise requires, each reference herein to the Lenders shall be deemed to include any Conduit
Lender.



          “Letters of Credit”: as defined in Section 3.1(a).



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



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



          “Loan Parties”: the Borrowers and the Guarantors.



          “Loans”: any Loan made by any Lender pursuant to this Agreement.



          “Local Time”: (a) local time in London with respect to the times for the receipt of
Borrowing requests for Alternative Currency Loans or a request for the issuance of an Alternative
Currency Letter of Credit, for receipt and sending of notices by and any disbursement by or on
behalf of the Administrative Agent, any Lender or any Issuing Lender of Alternative Currency Loans
and for



18









 




payment by the Borrowers with respect to Alternative Currency Loans and reimbursement obligations
in respect of Alternative Currency Letters of Credit, (b) local time in New York with respect to
the times for the determination of “Dollar Equivalent”, for the receipt of Borrowing requests for
Loans denominated in Dollars or a request for the issuance of a Letter of Credit denominated in
Dollars, for receipt and sending of notices by and disbursement by or on behalf of the
Administrative Agent, any Lender or any Issuing Lender and for payment by the Borrowers with
respect to Loans denominated in Dollars and reimbursement obligations in respect of Letters of
Credit denominated in Dollars, (c) local time in London, with respect to the times for the
determination of “Eurocurrency Base Rate”, (d) otherwise, if a place for any determination is
specified herein, the local time at such place of determination and (e) otherwise, New York time.




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



          “Materials of Environmental Concern”: any gasoline or petroleum (including crude oil
or any fraction thereof) or petroleum products or any hazardous or toxic substances, materials or
wastes, defined or regulated as such in or under any Environmental Law, including asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.



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



          “Mortgaged Property”: as defined in Section 4.20(b).



          “Mortgages”: collectively, any deeds of trust, trust deeds, hypothecs and mortgages
creating and evidencing a Lien on any real property made pursuant to the requirements of the
Existing Credit Agreement and this Agreement by the Loan Parties in favor of or for the benefit of
the Collateral Agent on behalf of the Secured Parties in form and substance reasonably satisfactory
to the Administrative Agent, in each case securing the Obligations and as amended in accordance
with Section 5.1(l) (as to the Mortgaged Property on the date hereof) and as further amended,
supplemented, amended and restated or otherwise modified from time to time.



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



          “Net Cash Proceeds”: (a) in connection with any Disposition, the proceeds thereof in
the form of cash and Cash Equivalents (including any such proceeds received by way of deferred
payment of principal pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise, but only as and when received), net of (i) attorneys’ fees, accountants’
fees, investment banking fees, amounts required to be applied to the repayment of Indebtedness
secured by a Lien expressly permitted hereunder on any asset that is the subject of such
Disposition (other than any Lien created pursuant to a Security Document) and other third-party
fees and expenses actually incurred in connection therewith and (ii) Taxes paid or reasonably
estimated to be payable as a result of such Disposition (after taking into account any available
tax credits or deductions and any tax sharing arrangements), (b) in connection with any issuance or
sale of Capital Stock or any incurrence of Indebtedness, the cash proceeds received from such
issuance or incurrence, net of attorneys’ fees, investment banking fees, accountants’ fees,
underwriting discounts and commissions and other customary fees and expenses actually incurred in
connection therewith, and (c) in connection with any Receivable Financing Transaction, the initial
cash purchase price received by, or Indebtedness incurred by, any Loan Party thereunder (and any
increase in the aggregate funded amount thereof) net of attorneys’ fees,



19









 




investment banking fees, accountants’ fees, underwriting discounts and commissions and other
customary fees and expenses actually incurred in connection therewith.




          “Non-Excluded Taxes”: as defined in Section 2.16(a).



          “Non-U.S. Lender”: as defined in Section 2.16(d).



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



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



          “Other Taxes”: any and all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or from
the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document, including any interest, additions to tax or penalties applicable thereto,
whether disputed or not.



          “Overnight Rate”: for any day (a) with respect to any amount denominated in Dollars,
the Federal Funds Effective Rate, and (b) with respect to any amount denominated in an Alternative
Currency, either (i) the rate of interest per annum at which overnight deposits in the applicable
Alternative Currency, in an amount approximately equal to the amount with respect to which such
rate is being determined, would be offered for such day by a branch or Affiliate of the
Administrative Agent in the applicable offshore interbank market for such Alternative Currency to
major banks in such interbank market or (ii) the overdraft costs charged by the applicable external
account bank of the Administrative Agent in respect of the applicable principal amount for such
Alternative Currency.



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



          “Participant”: as defined in Section 10.6(c).



          “Participating Member State”: any member state of the European Community that adopts
or has adopted the Euro as its lawful currency in accordance with the legislation of the European
Union relating to the European Monetary Union.



          “Participation Register”: as defined in Section 10.6(c).



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



20









 





          “Permitted Acquisition”: any Acquisition by (i) the Company or any of its
Subsidiaries of all or substantially all of the assets of a Person, or of all or substantially all
of any business or division of a Person or (ii) the Company or any of its Subsidiaries of no less
than 100% of the capital stock, partnership interests, membership interests or equity of any Person
(unless after giving effect to such Acquisition, the Company owns directly or indirectly, 100% of
such capital stock, partnership interests, membership interests or equity), in each case to the
extent that:




          (a) each of the conditions precedent set forth in Annex III shall have been
satisfied in a manner reasonably satisfactory to the Administrative Agent;




          (b) such Acquisition shall not be hostile and shall have been approved by the board of
directors (or other similar body) and/or the stockholders or other equityholders of the
Target; and




          (c) no Default or Event of Default is in existence or would occur after giving effect
to such Acquisition.



          “Permitted Notes”: unsecured notes issued by the Borrower in the high yield or high
grade market with a scheduled maturity date not earlier than one year after the Revolving
Termination Date and with customary market terms for comparable instruments.



          “Permitted Refinancing Indebtedness”: as defined in Section 7.2(s).



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



          “Plan”: at a particular time, any employee pension benefit plan (as defined in
Section 3(2) of ERISA) in respect of which a Loan Party or any ERISA Affiliate is (or, if such plan
were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as
defined in Section 3(5) of ERISA.



          “Pounds Sterling”: the lawful currency of the United Kingdom, provided that,
unless otherwise prohibited by law, if more than one currency or currency unit are at the same time
recognized by the central bank of the United Kingdom as the lawful currency of that country, then:
(i) any reference herein to, and any obligations arising hereunder in, the currency of the United
Kingdom shall be translated into, or paid in, the currency or currency unit of the United Kingdom
designated by the Administrative Agent (after consultation with the Company); and (ii) any
translation from one currency or currency unit to another shall be at the official rate of exchange
recognized by the central bank for the conversion of that currency or currency unit into the other,
rounded up or down by the Administrative Agent (acting reasonably); provided
further that, if a change in the currency of the United Kingdom occurs, this Agreement
will, to the extent the Administrative Agent (acting reasonably and after consultation with the
Company) specifies to be necessary, be amended to comply with any generally accepted conventions
and market practice in the London interbank market and otherwise to reflect the change in currency.



          “Prime Rate”: 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 (the
Prime Rate not being intended to be the lowest rate of interest charged by JPMorgan Chase Bank,
N.A. in connection with extensions of credit to debtors); each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being effective.



21








 





          “Prohibited Transaction”: as defined in Section 406 of ERISA or Section 4975 of
the Code.




          “Projections”: as defined in Section 6.2(c).




          “Properties”: as defined in Section 4.16(a).




          “Qualified Stock”: with respect to any Person, Capital Stock of such Person which is
not Disqualified Stock.




          “Rating Agency”: each of S&P and Moody’s.




          “Receivable Financing Transaction”: any transaction or series of transactions
involving a sale for cash of accounts receivable, without recourse based upon the collectibility of
the receivables sold, by the Company or any of its Subsidiaries to a Special Purpose Subsidiary and
a subsequent sale or pledge of such accounts receivable (or an interest therein) by such Special
Purpose Subsidiary, in each case without any guarantee by the Company or any of its Subsidiaries
(other than the Special Purpose Subsidiary).




          “Recovery Event”: any settlement of or payment in respect of any property or casualty
insurance claim or any condemnation proceeding relating to any asset of any Group Member in an
amount in excess of $2,500,000.




          “Refinanced Term Loans”: as defined in Section 10.1(e).




          “Refunded Swingline Loans”: as defined in Section 2.3.




          “Register”: as defined in Section 10.6(b).




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




          “Reimbursement Obligation”: the obligation of the Company to reimburse the Issuing
Lender pursuant to Section 3.5 for amounts drawn under Letters of Credit.




          “Reinvestment Deferred Amount”: with respect to any Reinvestment Event, the aggregate
Net Cash Proceeds received by any Group Member in connection therewith.




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




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




          “Related Parties”: as defined in Section 9.3.




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




          “Replacement Term Loans”: as defined in Section 10.1(e).







22









 








          “Replacement Revolving Facility”: as defined in Section 10.1(e).




          “Reportable Event”: any of the events set forth in Section 4043(c) of ERISA or the
regulations thereunder, other than those events as to which the thirty day notice period is waived
under PBGC regulations.




          “Required Lenders”: at any time, Lenders holding more than 50% of the Total Revolving
Commitments then in effect or, if the Revolving Commitments have been terminated, the Total
Revolving Extensions of Credit then outstanding; provided that the portion of the Revolving
Commitments and Revolving Extensions of Credit held or deemed held by any Defaulting Lender shall
be excluded for purposes of making a determination of Required Lenders.




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




          “Responsible Officer”: with respect to any Loan Party, the chief executive officer,
the president, the chief financial officer, any vice president, the treasurer or the assistant
treasurer of such Loan Party.




          “Restricted Investment”: any Investment other than an Investment permitted by Section
7.7 (other than clause (q) of Section 7.7).




          “Restricted Payments”: as defined in Section 7.6.




          “Revolving Commitment”: as to any Lender, the obligation of such Lender, if any, to
make Revolving Loans and participate in Swingline Loans and Letters of Credit in an aggregate
principal and/or face amount not to exceed the amount set forth under the heading “Revolving
Commitment” opposite such Lender’s name on Schedule 1.1A or in the Assignment and Assumption
pursuant to which such Lender became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof. The original amount of the Total Revolving Commitments on the
Closing Date is $500,000,000.




          “Revolving Commitment Period”: the period from and including the Closing Date to the
Revolving Termination Date.




          “Revolving Extensions of Credit”: as to any Lender at any time, an amount equal to
the sum of (a) the aggregate principal amount of all Revolving Loans held by such Lender then
outstanding, (b) such Lender’s Revolving Percentage of the Dollar Equivalent of the L/C Obligations
and (c) such Lender’s Revolving Percentage of the aggregate principal amount of Swingline Loans
then outstanding.




          “Revolving Loans”: as defined in Section 2.1.




          “Revolving Percentage”: as to any Lender at any time, the percentage which such
Lender’s Revolving Commitment then constitutes of the Total Revolving Commitments or, at any time
after the Revolving Commitments shall have expired or terminated, the percentage which the
aggregate principal amount of such Lender’s Revolving Loans then outstanding constitutes of the
aggregate principal amount of the Revolving Loans then outstanding, provided, that (i) in
the event that the Revolving Loans are paid in full prior to the reduction to zero of the Total
Revolving Extensions of Credit, the Revolving Percentages shall be determined in a manner designed
to ensure that the other outstanding Revolving Extensions of Credit shall be held by the Lenders on
a comparable basis and (ii)






23









 







for purposes of Section 2.20, if a Defaulting Lender exists the Revolving Commitment and
Revolving Extensions of Credit of such Defaulting Lender shall be disregarded in determining
Revolving Percentages.




          “Revolving Termination Date”: June 17, 2016.




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




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




          “Secured Parties”: collectively, the Administrative Agent, the Lenders, each Issuing
Lender, each provider under a Specified Cash Management Agreement, each counterparty to a Specified
Swap Agreement, the Persons entitled to indemnification under the Loan Documents and each co-agent
or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.2.




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




          “Seller Debt”: unsecured debt owing to the seller in a Permitted Acquisition.




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




          “Solvent”: when used with respect to any Person, means that, as of any date of
determination, (a) the amount of the “present fair saleable value” of the assets of such Person
will, as of such date, exceed the amount of all “liabilities of such Person, contingent or
otherwise”, as of such date, as such quoted terms are determined in accordance with applicable
federal and state laws governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater than the amount that
will be required to pay the liability of such Person on its debts as such debts become absolute and
matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital
with which to conduct its business, and (d) such Person will be able to pay its debts as they
mature. For purposes of this definition, (i) “debt” means liability on a “claim”, and (ii) “claim”
means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach
gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured.




          “Special Purpose Subsidiary”: any Wholly Owned Subsidiary of the Company created by
the Company for the sole purpose of facilitating a Receivable Financing Transaction;
provided, that such Special Purpose Subsidiary shall cease to be a Special Purpose
Subsidiary if at any time (a) such Special Purpose Subsidiary engages in any business other than
Receivable Financing Transactions and activities directly related thereto or (b) the Company or any
of its Subsidiaries (other than a Special Purpose Subsidiary) or any of their respective assets
incur any liability, direct or indirect, contingent or otherwise, in respect of any obligation of a
Special Purpose Subsidiary whether arising under or in connection with any Receivable Financing
Transaction or otherwise (other than Standard Securitization Undertakings); provided
further, however, that if the law of a jurisdiction in which the Company proposes
to create a Special Purpose Subsidiary does not provide for the creation of a bankruptcy remote
entity that






24









 







is acceptable to the Company or requires the formation of one or more additional entities
(whether or not Subsidiaries of the Company), such other type of entity may, upon the request of
the Company and with the consent of the Administrative Agent (such consent not to be unreasonably
withheld) serve as a “Special Purpose Subsidiary.”




          “Specified Cash Management Agreement”: any agreement providing for treasury,
depositary or cash management services, including in connection with any automated clearing house
transactions, controlled disbursements, return items, overdrafts, interstate depository network
services or any similar transactions between any Borrower or any Guarantor (or guaranteed by any
Borrower or any Guarantor) and any Lender (or any affiliate thereof) at the time such obligations
were created.




          “Specified Jurisdiction”: any country, state or other jurisdictional subdivision
outside North America or Europe.




          “Specified Swap Agreement”: any Swap Agreement entered into by any Borrower or any
Guarantor and any Person that is a Lender or an affiliate of a Lender at the time such Swap
Agreement is entered into. Such designation shall not create in favor of such Lender or affiliate
of a Lender any rights in connection with the management or release of any Collateral or of the
obligations of any Loan Party hereunder or under any Collateral Document. For purposes hereof a
Specified Swap Agreement shall include any trade executed pursuant to a master agreement which is a
Specified Swap Agreement.




          “Standard Securitization Undertakings”: representations, warranties, covenants and
indemnities entered into by the Company or any Subsidiary thereof in connection with a Receivable
Financing Transaction which are reasonably customary in an accounts receivable financing
transaction.




          “Subsidiary”: as to any Person, a corporation, partnership, limited liability company
or other entity of which shares of stock or other ownership interests having ordinary voting power
(other than stock or such other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such
Person (exclusive of any Affiliate in which such Person has a minority ownership interest). Unless
otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall
refer to a Subsidiary or Subsidiaries of the Company or their successors; provided that,
for purposes of Section 7.7, Greenfield Holdings, LLC and Integrated Manufacturing and Assembly,
LLC shall be deemed to be Wholly Owned Subsidiaries of the Company for so long as the Company
maintains substantially the same control over voting interests it has on the Closing Date, it being
understood that such control may be combined in the event that Greenfield Holdings, LLC and
Integrated Manufacturing and Assembly, LLC or their successors merge or otherwise combine.




          “Swap Agreement”: any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions.




          “Swingline Commitment”: the obligation of the Swingline Lender to make Swingline
Loans pursuant to Section 2.2 in an aggregate principal amount at any one time outstanding not to
exceed $50,000,000.







25









 








          “Swingline Exposure”: at any time, the sum of the aggregate undrawn amount of all
outstanding Swingline Loans at such time. The Swingline Exposure of any Lender at any time shall
be its Revolving Percentage of the total Swingline Exposure at such time.




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




          “Swingline Loans”: as defined in Section 2.2.




          “Swingline Participation Amount”: as defined in Section 2.3.




          “Target”: the Person, or business or substantially all of the assets of a Person or a
division of a Person intended to be acquired in a Permitted Acquisition.




          “Taxes”: all present or future taxes, duties, levies, imposts, deductions,
withholdings, assessments, fees or other charges imposed, levied, collected, withheld or assessed
by any Governmental Authority, including any interest, additions to tax or penalties applicable
thereto, whether disputed or not.




          “Total Revolving Commitments”: at any time, the aggregate amount of the Revolving
Commitments then in effect.




          “Total Revolving Extensions of Credit”: at any time, the aggregate amount of the
Revolving Extensions of Credit of the Lenders outstanding at such time.




          “Transferee”: any Assignee or Participant.




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




          “U.S. Foreign Holdco”: any Domestic Subsidiary, substantially all of the assets of
which consist of Capital Stock of Persons that are characterized as non-U.S. corporations for
United States federal income tax purposes.




          “UCC”: the Uniform Commercial Code, as in effect from time to time in the State of
New York or any other applicable jurisdiction.




          “United States”: the United States of America.




          “Unsecured Note Indenture”: the indenture among the Borrower, as issuer, certain of
its Subsidiaries, as guarantors, and the trustee named therein, under which the Permitted Notes are
issued.




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




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




          “Withholding Agent”: any Loan Party and the Administrative Agent.




          1.2. Classification of Loans and Borrowings. For purposes of this Agreement, Loans
may be classified and referred to by Type (e.g., a “Eurocurrency Loan”) or currency (e.g., an
“Alternative






26









 







Currency Loan”). Borrowings also may be classified and referred to by Type (e.g., a
“Eurocurrency Borrowing”) or currency (e.g., an “Alternative Currency Borrowing”).




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




          (b) As used herein and in the other Loan Documents, and any certificate or other document made
or delivered pursuant hereto or thereto, (i) accounting terms relating to any Group Member not
defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not
defined, shall have the respective meanings given to them under GAAP, 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 by the Company or the Administrative Agent, as the case
may be, or such provision amended in accordance herewith, (ii) the words “include”, “includes” and
“including” shall be deemed to be followed by the phrase “without limitation”, (iii) the word
“incur” shall be construed to mean incur, create, issue, assume or become liable in respect of or
suffer to exist (and the words “incurred” and “incurrence” shall have correlative meanings), (iv)
the words “asset” and “property” shall be construed to have the same meaning and effect and to
refer to any and all tangible and intangible assets and properties, including cash, Capital Stock,
securities, revenues, accounts, leasehold interests and contract rights, and (v) references to
agreements or other Contractual Obligations shall, unless otherwise specified, be deemed to refer
to such agreements or Contractual Obligations as amended, supplemented, restated or otherwise
modified from time to time.




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




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




          (e) When determining whether a Default or Event of Default pursuant to Section 7.1 shall be in
existence after giving pro forma effect to a certain event, the covenant levels to be used in
making such determination shall be those in effect as of the last day of the most recent fiscal
quarter of the Company for which financial reports are required to have been delivered pursuant to
Section 6.1.




          1.4. Exchange Rates; Currencies. (a) For purposes of calculating the Dollar
Equivalent of the principal amount of any Loan denominated in an Alternative Currency, the
Alternative Currency LC Exposure at any time, the Dollar Equivalent at the time of issuance of any
Alternative Currency Letter of Credit then requested to be issued pursuant to Section 3.2 or any
other matter relating to an Alternative Currency Loan or Alternative Currency Letter of Credit, the
Administrative Agent shall determine the Exchange Rate as of the applicable Exchange Rate Date with
respect to each Alternative Currency in which any requested or outstanding Loan or Alternative
Currency Letter of Credit is denominated and shall apply such Exchange Rate to determine such
amount (in each case after giving






27









 







effect to any Loan to be made or repaid or Letter of Credit to be issued or to expire or
terminate on or prior to the applicable date for such calculation).




          (b) At any time, any reference in the definition of the term “Alternative Currency” or in any
other provision of this Agreement to the currency of any particular nation means the lawful
currency of such nation at such time whether or not the name of such currency is the same as it was
on the date hereof. Wherever in this Agreement in connection with a Borrowing or Loan an amount,
such as a required minimum or multiple amount, is expressed in Dollars, but such Borrowing or Loan
is denominated in a Alternative Currency, such amount shall be the relevant Alternative Currency
Equivalent of such Dollar amount (rounded to the nearest 1,000 units of such Alternative Currency).




          (c) Each obligation hereunder of any party hereto that is denominated in a currency of a
country that is not a Participating Member State on the date hereof shall, effective from the date
on which such country becomes a Participating Member State, be redenominated in Euro in accordance
with the legislation of the European Union applicable to the European Monetary Union;
provided that, if and to the extent that any such legislation provides that any such
obligation of any such party payable within such Participating Member State by crediting an account
of the creditor can be paid by the debtor either in Euro or such currency, such party shall be
entitled to pay or repay such amount either in Euro or in such currency. If the basis of accrual
of interest or fees expressed in this Agreement with respect to an Alternative Currency of any
country that becomes a Participating Member State after the date on which such currency becomes an
Alternative Currency shall be inconsistent with any convention or practice in the interbank market
for the basis of accrual of interest or fees in respect of the Euro, such convention or practice
shall replace such expressed basis effective as of and from the date on which such country becomes
a Participating Member State; provided that, with respect to any Borrowing denominated in
such currency that is outstanding immediately prior to such date, such replacement shall take
effect at the end of the Interest Period therefor. Without prejudice to the respective liabilities
of the Borrowers to the Lenders and of the Lenders to the Borrowers under or pursuant to this
Agreement, each provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time reasonably specify to be necessary
or appropriate to reflect the introduction or changeover to the Euro in any country that becomes a
Participating Member State after the date hereof.




SECTION 2. AMOUNT AND TERMS OF LOANS AND COMMITMENTS



          2.1. Loans and Commitments. (a) Subject to the terms and conditions set forth
herein, each Lender severally agrees to make revolving credit loans in Dollars or an Alternative
Currency (“Revolving Loans”) to the Borrowers from time to time during the Revolving
Commitment Period in an aggregate principal amount at any one time outstanding which, when added to
such Lender’s other Revolving Extensions of Credit then outstanding, does not exceed the amount of
such Lender’s Revolving Commitment; provided the aggregate principal amount of Alternative
Currency Loans and Alternative Currency LC Exposure shall not exceed the Alternative Currency
Sublimit. During the Revolving Commitment Period the Borrowers may use the Revolving Commitments
by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance
with the terms and conditions hereof. The Revolving Loans may from time to time be Eurocurrency
Loans or ABR Loans, as determined by the applicable Borrower and notified to the Administrative
Agent in accordance with Sections 2.1(c) and 2.9. The obligations of the Borrowers under this
Agreement are several.




          (b) The Borrowers may borrow under the Revolving Commitments during the Revolving Commitment
Period on any Business Day, provided that the applicable Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the Administrative Agent
prior to 12:00 Noon, Local Time, (a) three Business Days prior to the requested Borrowing Date, in
the case of Eurocurrency Loans or (b) one Business Day prior to the requested Borrowing Date, in
the case of






28









 







ABR Loans) (provided that any such notice of a borrowing of ABR Loans to finance
payments required by Section 3.5 may be given not later than 10:00 A.M., Local Time, on the date of
the proposed borrowing), specifying (i) the requested Borrower, (ii) the amount, Type and currency
of Revolving Loans to be borrowed, (iii) the requested Borrowing Date, and (iv) in the case of
Eurocurrency Loans, the respective amounts of each such Type of Loan and the respective lengths of
the initial Interest Period therefor. Each borrowing under the Revolving Commitments shall be in
an amount equal to (x) in the case of ABR Loans, $1,000,000 or a whole multiple thereof (or, if the
then aggregate Available Revolving Commitments are less than $1,000,000, such lesser amount) and
(y) in the case of Eurocurrency Loans, $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. Upon receipt of any such notice from the applicable Borrower, the Administrative Agent
shall promptly notify each Lender thereof. Each Lender will make the amount of its pro rata share
of each borrowing available to the Administrative Agent for the account of the applicable Borrower
at the Funding Office prior to 12:00 Noon, Local Time, on the Borrowing Date requested by the
applicable Borrower in funds immediately available to the Administrative Agent. Such borrowing
will then be made available to the applicable Borrower by the Administrative Agent crediting the
account of the applicable Borrower on the books of such office with the aggregate of the amounts
made available to the Administrative Agent by the Lenders and in like funds as received by the
Administrative Agent.




          (c) 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; provided that any exercise of such option shall
not affect the obligation of the applicable Borrower to repay such Loan in accordance with the
terms of this Agreement; and provided, further, that no such option may be
exercised by any Lender if, immediately after giving effect thereto, amounts would become payable
by a Loan Party under Section 2.15 or 2.16 that are in excess of those that would be payable under
such Section if such option were not exercised.




          (d) The Company may act as agent for the other Borrowers with respect to all matters involving
Loans to and Letters of Credit for the account of any other Borrower. Without limitation, the
Administrative Agent and the Lenders may rely on any notice or request given by the Company with
respect to any Loan or Letter of Credit issued or to be issued to or for the account of any other
Borrower or any payment, continuation, conversion, prepayment or amendment thereof and may fund the
proceeds of any Loan requested to be made to any other Borrower to any account directed by the
Company.




          2.2. Swingline Commitment. (a) Subject to the terms and conditions hereof, the
Swingline Lender agrees to make a portion of the credit otherwise available to the Borrowers under
the Revolving Commitments from time to time during the Revolving Commitment Period by making swing
line loans (“Swingline Loans”) to the Company; provided that (i) the aggregate
principal amount of Swingline Loans outstanding at any time shall not exceed the Swingline
Commitment then in effect (notwithstanding that the Swingline Loans outstanding at any time, when
aggregated with the Swingline Lender’s other outstanding Revolving Loans, may exceed the Swingline
Commitment then in effect) and (ii) the Company shall not request, and the Swingline Lender shall
not make, any Swingline Loan if, after giving effect to the making of such Swingline Loan, the
aggregate amount of the Available Revolving Commitments would be less than zero. During the
Revolving Commitment Period, the Company may use the Swingline Commitment by borrowing, repaying
and reborrowing, all in accordance with the terms and conditions hereof. Swingline Loans shall be
denominated in Dollars and ABR Loans only.




          (b) The Company shall repay to the Swingline Lender the then unpaid principal amount of each
Swingline Loan on the earlier of the Revolving Termination Date and the first date after such
Swingline Loan is made that is the 15th Business Day or last Business Day of a calendar quarter






29









 







after such Swingline Loan is made; provided that on each date that a Revolving Loan is
borrowed, such Borrower shall repay all Swingline Loans then outstanding.




          2.3. Procedure for Swingline Loan Borrowing; Refunding of Swingline Loans. (a)
Whenever the Company desires that the Swingline Lender make Swingline Loans it shall give the
Swingline Lender irrevocable telephonic notice confirmed promptly in writing (which telephonic
notice must be received by the Swingline Lender not later than 1:00 P.M., Local Time, on the
proposed Borrowing Date), specifying (i) the amount to be borrowed and (ii) the requested Borrowing
Date (which shall be a Business Day during the Revolving Commitment Period). Each borrowing under
the Swingline Commitment shall be in an amount equal to $500,000 or a whole multiple of $100,000 in
excess thereof. Not later than 3:00 P.M., Local Time, on the Borrowing Date specified in a notice
in respect of Swingline Loans, the Swingline Lender shall make available to the Administrative
Agent at the Funding Office an amount in immediately available funds equal to the amount of the
Swingline Loan to be made by the Swingline Lender. The Administrative Agent shall make the
proceeds of such Swingline Loan available to the Company on such Borrowing Date by depositing such
proceeds in the account of the Company with the Administrative Agent on such Borrowing Date in
immediately available funds.




          (b) The Swingline Lender, at any time and from time to time in its sole and absolute
discretion may, on behalf of the Company (which hereby irrevocably directs the Swingline Lender to
act on its behalf), on one Business Day’s notice given by the Swingline Lender no later than 12:00
Noon, New York City time, request each Lender to make, and each Lender hereby agrees to make, a
Revolving Loan in an amount equal to such Lender’s Revolving Percentage of the aggregate amount of
the Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date of such
notice, to repay the Swingline Lender. Each Lender shall make the amount of such Revolving Loan
available to the Administrative Agent at the Funding Office in immediately available funds, not
later than 10:00 A.M., Local Time, one Business Day after the date of such notice. The proceeds of
such Revolving Loans shall be immediately made available by the Administrative Agent to the
Swingline Lender for application by the Swingline Lender to the repayment of the Refunded Swingline
Loans. The Company irrevocably authorizes the Swingline Lender to charge the Company’s accounts
with the Administrative Agent (up to the amount available in each such account) in order to
immediately pay the amount of such Refunded Swingline Loans to the extent amounts received from the
Lenders are not sufficient to repay in full such Refunded Swingline Loans.




          (c) If prior to the time a Revolving Loan would have otherwise been made pursuant to Section
2.3(b) one of the events described in Section 8.1(f) shall have occurred and be continuing with
respect to the Company or if for any other reason, as determined by the Swingline Lender in its
sole discretion, Revolving Loans may not be made as contemplated by Section 2.3(b), each Lender
shall, on the date such Revolving Loan was to have been made pursuant to the notice referred to in
Section 2.3(b), purchase for cash an undivided participating interest in the then outstanding
Swingline Loans by paying to the Swingline Lender an amount (the “Swingline Participation
Amount”) equal to (i) such Lender’s Revolving Percentage times (ii) the sum of the aggregate
principal amount of Swingline Loans then outstanding that were to have been repaid with such
Revolving Loans.




          (d) Whenever, at any time after the Swingline Lender has received from any Lender such
Lender’s Swingline Participation Amount, the Swingline Lender receives any payment on account of
the Swingline Loans, the Swingline Lender will distribute to such Lender its Swingline
Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender’s participating interest was outstanding and funded and, in
the case of principal and interest payments, to reflect such Lender’s pro rata portion of such
payment if such payment is not sufficient to pay the principal of and interest on all Swingline
Loans then due); provided, however, that in






30









 







the event that such payment received by the Swingline Lender is required to be returned, such
Lender will return to the Swingline Lender any portion thereof previously distributed to it by the
Swingline Lender.




          (e) Each Lender’s obligation to make the Revolving Loans referred to in Section 2.3(b) and to
purchase participating interests pursuant to Section 2.3(c) shall be absolute and unconditional and
shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment,
defense or other right that such Lender or any Borrower may have against the Swingline Lender, the
Borrowers or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a
Default or an Event of Default or the failure to satisfy any of the other conditions specified in
Section 5, (iii) any adverse change in the condition (financial or otherwise) of the Borrowers,
(iv) any breach of this Agreement or any other Loan Document by the applicable Borrower, any other
Loan Party or any other Lender or (v) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.




          2.4. Repayment of Revolving Loans. Each Borrower shall repay all outstanding
Revolving Loans on the Revolving Termination Date.




          2.5. Fees. (a) The Company agrees to pay to the Administrative Agent for the account
of each Lender a facility fee for the period from and including the Closing Date to the last day of
the Revolving Commitment Period (or any later date on which such Lender has outstanding Revolving
Extensions of Credit), computed at the Facility Fee Rate on the average daily amount of the
Revolving Commitment (or, following termination of the Revolving Commitments, the Revolving
Extensions of Credit of such Lender) during the period for which payment is made, payable quarterly
in arrears on each Fee Payment Date, commencing on the first such date to occur after the Closing
Date.




          (b) The Company agrees to pay to the Administrative Agent the fees in the amounts and on the
dates as set forth in any fee agreements with the Administrative Agent and to perform any other
obligations contained therein.




          2.6. Termination or Reduction of Commitments. The Company shall have the right, upon
not less than three Business Days’ notice to the Administrative Agent, to terminate the Commitments
or, from time to time, to reduce the amount of the Revolving Commitments; provided that no
such termination or reduction of Revolving Commitments shall be permitted if, after giving effect
thereto and to any prepayments of the Revolving Loans and Swingline Loans made on the effective
date thereof, the Total Revolving Extensions of Credit would exceed the Total Revolving
Commitments. Any such reduction shall be in an amount equal to $1,000,000, or a whole multiple
thereof, and shall reduce permanently the Revolving Commitments then in effect. The Alternative
Currency Sublimit shall be reduced concurrently with any reduction of the Total Revolving
Commitments ratably based on the amount of the reduction of the Total Revolving Commitments.




          2.7. Optional Prepayments. Each Borrower may at any time and from time to time
prepay the Loans, in whole or in part, without premium or penalty, upon irrevocable notice
delivered to the Administrative Agent no later than 1:00 P.M., Local Time, (i) one Business Day
prior thereto, in the case of ABR Loans (provided that ABR Loans may be prepaid on the same
Business Day if notice is received by the Administrative Agent no later than 12:00 P.M., Local
Time), and (ii) three Business Days prior thereto, in the case of Eurocurrency Loans, which notice
shall specify the date and amount of prepayment and Type of the Loans being prepaid, as applicable;
provided, that if a Eurocurrency Loan is prepaid on any day other than the last day of the
Interest Period applicable thereto, the applicable Borrower shall also pay any amounts owing
pursuant to Section 2.17. Upon receipt of any such notice the Administrative Agent shall promptly
notify each relevant Lender thereof. If any such notice is given, the amount specified in such
notice shall be due and payable on the date specified therein, together with






31









 







(except in the case of Revolving Loans that are ABR Loans and Swingline Loans) accrued
interest to such date on the amount prepaid. Partial prepayments of Loans shall be in an aggregate
principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof. Partial
prepayments of Swingline Loans shall be in an aggregate principal amount of $100,000 or a whole
multiplin excess thereof. Partial optional prepayments of the Loans shall be ratable as among the
Lenders thereof.




          2.8. Prepayments Required Due to Currency Fluctuation. If on any Exchange Rate Date,
the Dollar Equivalent of the Total Revolving Extensions of Credit attributable to Alternative
Currency Loans and Alternative Currency Letters of Credit exceed the Alternative Currency Sublimit
by 5% or more, then within five Business Days after notice thereof to the Company from the
Administrative Agent, the Company shall (or shall cause any Borrowing Subsidiary to) prepay
Alternative Currency Loans and cash collateralize L/C Obligations in respect of Alternative
Currency Letters of Credit in an aggregate principal amount at least equal to such excess. Nothing
set forth in this Section 2.8 shall be construed to require the Administrative Agent to calculate
compliance under this Section 2.8 other than at the times set forth in Section 2.8.




          2.9. Conversion and Continuation Options. (a) Each Borrower may elect from time to
time to convert Eurocurrency Loans denominated in Dollars to ABR Loans by giving the Administrative
Agent prior irrevocable notice of such election no later than 11:00 A.M., Local Time, on the
Business Day preceding the proposed conversion date. Each Borrower may elect from time to time to
convert ABR Loans to Eurocurrency Loans denominated in Dollars by giving the Administrative Agent
prior irrevocable notice of such election no later than 12:00 Noon, Local Time, on the third
Business Day preceding the proposed conversion date (which notice shall specify the length of the
initial Interest Period therefor), provided that no ABR Loan may be converted into a
Eurocurrency Loan when any Event of Default has occurred and is continuing and the Administrative
Agent has or the Required Lenders have determined in its or their sole discretion not to permit
such conversions. Upon receipt of any such notice the Administrative Agent shall promptly notify
each relevant Lender thereof.




          (b) Any Eurocurrency Loan may be continued as such in the same currency upon the expiration of
the then current Interest Period with respect thereto by the applicable Borrower giving irrevocable
notice to the Administrative Agent, in accordance with the applicable provisions of the term
“Interest Period” set forth in Section 1.1, of the length of the next Interest Period to be
applicable to such Loans, provided that no Eurocurrency Loan denominated in Dollars may be
continued as such when any Event of Default has occurred and is continuing and the Administrative
Agent has or the Required Lenders have determined in its or their sole discretion not to permit
such continuations and no Eurocurrency Loan denominated in an Alternative Currency may be continued
as such with an Interest Period longer than one month when any Event of Default has occurred as is
continuing without the consent of the Administrative Agent, and provided, further,
that if a Borrower shall fail to give any required notice as described above in this paragraph or
if such continuation is not permitted pursuant to the preceding proviso such Loans if denominated
in Dollars shall be automatically converted to ABR Loans on the last day of such then expiring
Interest Period and, if denominated in an Alternative Currency, shall be continued as such in the
same currency with a one month Interest Period. Upon receipt of any such notice the Administrative
Agent shall promptly notify each relevant Lender thereof.




          2.10. Limitations on Eurocurrency Tranches. Notwithstanding anything to the contrary
in this Agreement, all borrowings, conversions and continuations of Eurocurrency Loans and all
selections of Interest Periods shall be in such amounts and be made pursuant to such elections so
that, (a) after giving effect thereto, the aggregate principal amount of the Eurocurrency Loans
comprising each Eurocurrency Tranche shall be equal to $1,000,000 or a whole multiple of $500,000
in excess thereof and (b) no more than twenty Eurocurrency Tranches shall be outstanding at any one
time.







32









 








          2.11. Interest Rates and Payment Dates. (a) Subject to the provisions of Section
2.11(d), each Eurocurrency Loan shall bear interest for each day during each Interest Period with
respect thereto at a rate per annum equal to the Eurocurrency Rate determined for such day plus the
Applicable Margin.




          (b) Subject to the provisions of Section 2.11(d), each ABR Loan shall bear interest at a rate
per annum equal to the ABR plus the Applicable Margin.




          (c) Subject to the provisions of Section 2.11(d), each Alternative Currency Loan shall be
subject to customary adjustments if and to the extent Loans denominated in such Alternative
Currencies are customarily priced on a Eurocurrency Base Rate basis plus an additional cost.




          (d) Any Loans, Reimbursement Obligations and other Obligations under the Loan Documents not
paid when due shall bear interest at a rate per annum equal to (i) in the case of the Loans, the
rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this
Section plus 2% or and (ii) in the case of any other Obligation, the rate then applicable
to ABR Loans plus 2%, in each case, with respect to clauses (i) and (ii) above, from the
date of such non-payment until such amount is paid in full (after as well as before judgment).




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




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




          (b) Each determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be presumptively correct and binding on the Borrowers and the
Lenders in the absence of manifest error. The Administrative Agent shall, at the request of a
Borrower, deliver to such Borrower a statement showing the quotations used by the Administrative
Agent in determining any interest rate pursuant to Section 2.11(a).




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




          (a) the Administrative Agent shall have determined (which determination shall be presumptively
correct and binding upon the Borrowers) that, by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the Eurocurrency Rate for an
applicable currency for such Interest Period, or




          (b) the Administrative Agent shall have received notice from the Required Lenders that the
Eurocurrency Rate for a currency determined or to be determined for such Interest Period will not






33









 







adequately and fairly reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Loans during such Interest Period,



the Administrative Agent shall give telecopy or telephonic notice thereof to the Company and the
relevant Lenders as soon as practicable thereafter. If such notice is given (w) any Eurocurrency
Loans denominated in Dollars requested to be made on the first day of such Interest Period shall be
made as ABR Loans, (x) any Loans denominated in Dollars that were to have been converted on the
first day of such Interest Period to Eurocurrency Loans shall be continued as ABR Loans, (y) any
outstanding Eurocurrency Loans denominated in Dollars shall be converted, on the last day of the
then-current Interest Period, to ABR Loans and (z) any Eurocurrency Loans denominated in the
affected Alternative Currency may not be continued and shall be repaid on the last day of the
current Interest Period; provided that (i) if the circumstances giving rise to such notice
affect only one Type of Borrowings, then the other Types of Borrowings shall be permitted and (ii)
if the circumstances giving rise to such notice affect only one currency, then Borrowings in other
permitted currencies shall be permitted. Until such notice has been withdrawn by the
Administrative Agent (which the Administrative Agent shall do promptly after the circumstances
giving rise to such event no longer exist), no further Eurocurrency Loans of the affected Type
shall be made or continued as such, nor shall the Borrowers have the right to convert Loans to such
Type of Eurocurrency Loans.




          2.14. Pro Rata Treatment and Payments. (a) Except as otherwise provided herein, each
payment by any Borrower on account of any fee payable to Lenders with respect to Revolving Loans
shall be made pro rata according to the Revolving Percentages of the relevant
Lenders entitled thereto.




          (b) Except as otherwise provided herein, each payment (including each prepayment) by any
Borrower on account of principal of and interest on the Revolving Loans shall be made pro
rata according to the respective Revolving Percentages of the Lenders entitled thereto.




          (c) All payments (including prepayments) to be made by each Borrower hereunder, whether on
account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and
shall be made prior to 12:00 Noon, New York City time, on the due date thereof to the
Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars or the
applicable Alternative Currency and in immediately available funds. The Administrative Agent shall
distribute such payments to each relevant Lender promptly upon receipt in like funds as received.
If any payment hereunder (other than payments on the Eurocurrency Loans) becomes due and payable on
a day other than a Business Day, such payment shall be extended to the next succeeding Business
Day. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business
Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result
of such extension would be to extend such payment into another calendar month, in which event such
payment shall be made on the immediately preceding Business Day. In the case of any extension of
any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable
at the then applicable rate during such extension. All payments hereunder shall be made in Dollars
except payments of principal of and interest on any Alternative Currency Loan and reimbursement of
any payment made by an Issuing lender pursuant to a Letter of Credit denominated in an Alternative
Currency and interest thereon shall be paid in the applicable currency. If, for any reason, a
Borrower is prohibited by any Requirement of Law from making any required payment hereunder in an
Alternative Currency, such Borrower shall make such payment in Dollars in the Dollar Equivalent of
the Alternative Currency payment amount. Notwithstanding the foregoing, if any Borrower shall fail
to pay any principal of any Loan when due (whether at stated maturity, by acceleration, by
mandatory prepayment or otherwise), the unpaid portion of such Loan shall, if such Loan is not
denominated in Dollars, at the option of the Administrative Agent be redenominated in Dollars on
the date due thereof (or, if such due date is a day other than the last day of the Interest Period
therefor, on the last day of such Interest Period) in an amount equal to the Dollar






34









 







Equivalent thereof on the date of such redenomination and such principal shall be payable on
demand; and if any Borrower shall fail to pay any interest on any Loan that is not denominated in
Dollars, such interest shall at the option of the Administrative Agent be redenominated in Dollars
on the due date therefore (or, if such due date is a day other than the last day of the Interest
Period therefor, on the last day of such Interest Period) in an amount equal to the Dollar
Equivalent thereof on the date of such redenomination and such interest shall be payable on demand.




          (d) Unless the Administrative Agent shall have been notified in writing by any Lender prior to
a borrowing that such Lender will not make the amount that would constitute its share of such
borrowing available to the Administrative Agent, the Administrative Agent may assume that such
Lender is making such amount available to the Administrative Agent, and the Administrative Agent
may, in reliance upon such assumption, make available to the applicable Borrower a corresponding
amount. If such amount is not made available to the Administrative Agent by the required time on
the date of borrowing therefor, such Lender shall pay to the Administrative Agent, on demand, such
amount with interest thereon, at a rate equal to the greater of (i) the Overnight Rate for the
applicable currency and (ii) a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation for such currency, for the period until such
Lender makes such amount immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph
shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is
not made available to the Administrative Agent by such Lender within three Business Days after such
date of borrowing, the Administrative Agent shall also be entitled to recover such amount with
interest thereon at the rate per annum applicable thereto, within three Business Days after demand
therefor from the Company.




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




          (f) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.14(d), 2.14(e), 3.4(a) or 9.7, then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision of this Agreement), apply any amounts thereafter received
by the Administrative Agent, the Swingline Lender or the Issuing Lender for the account of such
Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied
obligations are fully paid.




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





     (i) shall subject any Lender or Issuing Lender to any Tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any application or any Eurocurrency Loan
made by it, or change the basis of taxation of payments to such Lender or Issuing Lender in




35












 






respect thereof (except for Non-Excluded Taxes covered by Section 2.16 and Taxes
described in any of Section 2.16(a)(1) through (3);




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




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


and the result of any of the foregoing is to increase the cost to such Lender (or, in the case of
(i), such Lender or Issuing Lender), by an amount that such Lender (or, in the case of (i), such
Lender or Issuing Lender) reasonably deems to be material, of making, converting into, continuing
or maintaining Eurocurrency Loans or issuing or participating in Letters of Credit, or to reduce
any amount receivable hereunder in respect thereof, then, in any such case, the Company shall
promptly pay such Lender (or, in the case of (i), such Lender or Issuing Lender), within 30 days
after receipt of a reasonably detailed invoice therefor, any additional amounts necessary to
compensate such Lender (or, in the case of (i), such Lender or Issuing Lender) for such increased
cost or reduced amount receivable. If any Lender (or, in the case of (i), any Lender or Issuing
Lender) becomes entitled to claim any additional amounts pursuant to this paragraph, it shall
promptly notify the Company (with a copy to the Administrative Agent) of the event by reason of
which it has become so entitled.




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



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



          (d) Notwithstanding anything herein to the contrary, the Dodd-Frank Wall Street Reform and
Consumer Protection Act and all requests, rules, guidelines, requirements or directives thereunder
or issued in connection therewith or in implementation thereof shall be deemed to be a change in a
Requirement of Law, regardless of the date enacted, adopted or issued.



36









 





          2.16. Taxes. (a) All payments made by or on account of any Loan Party under this
Agreement or any other Loan Document shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or other taxes, levies,
imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority (including any interest, addition to
tax or penalties applicable thereto), excluding (1) income taxes and franchise taxes (imposed in
lieu of net income taxes) and taxes imposed on or measured by a Credit Party’s net profits if such
tax is imposed as a result of a present or former connection between such Credit Party and the
jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from the such Credit
Party having executed, delivered or performed its obligations or received a payment under, or
enforced, this Agreement or any other Loan Document), (2) Taxes that are attributable to the Credit
Party’s failure to comply with the requirements of paragraphs (d) or (e) of this Section or (3)
United States withholding taxes (including those imposed under FATCA) imposed on amounts payable to
the Credit Party at the time such Credit Party becomes a party to this Agreement, except to the
extent that such Credit Party’s assignor (if any) was entitled, at the time of assignment, to
receive additional amounts from the applicable Loan Party with respect to such withholding taxes
pursuant to this paragraph (a); provided that, if any such non-excluded taxes
(“Non-Excluded Taxes”) or any Other Taxes are required to be withheld from any amounts
payable to a Credit Party hereunder or under any other Loan Document, the amounts so payable to the
Credit Party shall be increased to the extent necessary to yield to the Credit Party (after payment
of all Non-Excluded Taxes and Other Taxes) interest or any such other amounts payable hereunder at
the rates or in the amounts specified in this Agreement.



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



          (c) Whenever any Non-Excluded Taxes or Other Taxes are payable by any Loan Party, as
promptly as reasonably possible thereafter such Loan Party shall send to the Administrative Agent
for its own account or for the account of the relevant Lender, as the case may be, (i) a certified
copy of an original official receipt received by such Loan Party showing payment thereof or (ii) if
such Loan Party reasonably determines that it is unable to provide a certified copy of such
receipt, a certificate as to the amount of such payment. Such certified copy or certificate as to
the amount of such payment or the liability delivered by such Loan Party shall be conclusive absent
manifest error. If the relevant Loan Party fails to pay any Non-Excluded Taxes or Other Taxes when
due to the appropriate taxing authority or fails to remit to the Administrative Agent copies of the
required receipts or other required documentary evidence, such Loan Party shall indemnify the
relevant Credit Parties for such amounts and any incremental Taxes, interest or penalties that may
become payable by the Credit Parties as a result of any such failure.



          (d) Each Credit Party (or Transferee) that is not a “United States Person” as defined in
Section 7701(a)(30) of the Code (a “Non-U.S. Lender”) shall deliver on or before the date
on which it becomes a party to this Agreement to the applicable Borrower and the Administrative
Agent (or, in the case of a Participant, to the Administrative Agent and the Lender from which the
related participation shall have been purchased) (i) two executed originals of U.S. Internal
Revenue Service (“IRS”) Form W-8BEN claiming eligibility for benefits of an income tax
treaty to which the United States is a party, IRS Form W-8ECI or IRS Form W-8IMY (accompanied by
applicable underlying IRS forms), (ii) in the case of a Non-U.S. Lender claiming exemption from
U.S. federal withholding Tax under Section 871(h) or 881(c) of the Code with respect to payments of
“portfolio interest”, a statement substantially in the form of Exhibit D and two copies of the
applicable IRS Form W-8, or any subsequent versions thereof or successors thereto, in each case
properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or a
reduced rate of, U.S. federal withholding Tax on under this Agreement



37









 




and the other Loan Documents,
or (iii) any other form prescribed by applicable requirements of U.S. federal income Tax law as a
basis for claiming exemption from or a reduction in U.S. federal withholding Tax together with such
supplementary documentation necessary to enable the applicable Loan Party or
Administrative Agent to determine the amount of Tax (if any) required by law to be withheld.
Such forms shall be delivered by each Non-U.S. Lender on or before the date it becomes a party to
this Agreement (or, in the case of any Participant, on or before the date such Participant
purchases the related participation) and from time to time thereafter upon request of the
applicable Borrower or the Administrative Agent. Furthermore, 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
the Withholding Agent, at the time or times prescribed by law and at such time or times reasonably
requested by the Withholding 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 the Withholding Agent as may be necessary for the Withholding Agent to comply with its
obligations under FATCA, to determine that such Lender has or has not 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 Section 2.16(d), “FATCA” shall include any amendments made to FATCA
after the date of this Agreement. Each Lender shall promptly notify the applicable Borrower and
the Administrative Agent at any time it determines that it is no longer in a position to provide
any previously delivered certificate to the applicable Borrower and the Administrative Agent (or
any other form of certification adopted by the U.S. taxing authorities for such purpose). In
addition, each Non-U.S. Lender shall deliver such forms or certifications described in this Section
2.16(d) promptly upon the expiration, obsolescence or invalidity of any form previously delivered
by such Non-U.S. Lender pursuant to this Section 2.16(d). Notwithstanding any other provision of
this paragraph, a Lender shall not be required to deliver any form pursuant to this paragraph that
such Lender is not legally able to deliver.




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



          (f) Any Credit Party that is a United States person as defined in Section 7701(a)(30) of
the Code shall deliver to the applicable Borrower (with a copy to the Administrative Agent) on or
before the date on which it becomes a party to this Agreement a duly completed and signed original
IRS Form W-9 (or successor form) establishing that the Credit Party is organized under the laws of
the United States and is not subject to backup withholding. Each Credit Party shall deliver such
form promptly upon the expiration, obsolescence or invalidity of any form previously delivered by
such Credit Party pursuant to this Section 2.16(f).



          (g) If a Credit Party determines, in its sole discretion (exercised in good faith), that
it has received a refund of any Non-Excluded Taxes or Other Taxes as to which it has been
indemnified by Loan Party or with respect to which a Loan Party has paid additional amounts
pursuant to this Section 2.16, it shall pay over such refund to such Loan Party (but only to the
extent of indemnity payments made, or additional amounts paid, by such Loan Party under this
Section 2.16 with respect to the Non-



38









 




Excluded Taxes or Other Taxes giving rise to such refund), net
of all out-of-pocket expenses of the Credit Party and without interest (other than any interest
paid by the relevant Governmental Authority with respect to such refund), within 45 Business Days
of the determination that such Loan Party is entitled to
such refund; provided, that such Loan Party, upon the request of the Credit Party,
agrees to repay the amount paid over to such Loan Party (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the Credit Party in the event the Credit
Party is required to repay such refund to such Governmental Authority. This paragraph shall not be
construed to require any Credit Party to make available its Tax returns (or any other information
relating to its Taxes which it deems confidential) to any Loan Party or to any other Person.




          (h) Each Lender shall indemnify the Administrative Agent, within 10 days after demand
therefor, for the full amount of any Taxes attributable to such Lender that are payable or paid by
the Administrative Agent, and 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.



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



          2.17. Indemnity. Each Borrower agrees to indemnify each Lender for, and to hold
each Lender harmless from, any loss or expense that such Lender may sustain or incur as a
consequence of (a) default by such Borrower in making a borrowing of, conversion into or
continuation of Eurocurrency Loans after such Borrower has given a notice requesting the same in
accordance with the provisions of this Agreement (other than by operation of Section 2.13), (b)
default by such Borrower in making any prepayment of or conversion from Eurocurrency Loans after
such Borrower has given a notice thereof in accordance with the provisions of this Agreement, or
(c) the making of a prepayment of Eurocurrency Loans on a day that is not the last day of an
Interest Period with respect thereto. Such indemnification may include an amount equal to the
excess, if any, of (i) the amount of interest that would have accrued on the amount so prepaid, or
not so borrowed, converted or continued, for the period from the date of such prepayment or of such
failure to borrow, convert or continue to the last day of such Interest Period (or, in the case of
a failure to borrow, convert or continue, the Interest Period that would have commenced on the date
of such failure) in each case at the applicable rate of interest for such Loans provided for herein
(excluding, however, the Applicable Margin included therein, if any) over (ii) the amount of
interest (as reasonably determined by such Lender) that would have accrued to such Lender on such
amount by placing such amount on deposit for a comparable period with leading banks in the
interbank eurocurrency market. A certificate as to any amounts payable pursuant to this Section
submitted to such Borrower by any Lender shall be presumptively correct in the absence of manifest
error. This covenant shall survive the termination of this Agreement and the payment of the Loans
and all other amounts payable hereunder.



          2.18. Change of Lending Office. Each Lender agrees that, upon the occurrence of
any event giving rise to the operation of Section 2.15 or 2.16 with respect to such Lender, it
will, if requested by the Company, use reasonable efforts (subject to overall policy considerations
of such Lender) to designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such designation is made
on terms that, in the sole judgment of such Lender, cause such Lender and its lending office(s) to
suffer no economic, legal or regulatory disadvantage, and provided, further, that
nothing in this Section shall affect or postpone any of the obligations of any Borrower or the
rights of any Lender pursuant to Section 2.15 or 2.16.



39









 





             2.19. Incremental Facility. (a) Each Borrower may at any time or from time to
time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative
Agent shall promptly deliver a copy to each of the Lenders), request one or more tranches of term
loans (each an “Incremental Term Facility”) or revolving facilities or letter of credit
facilities or an increase in the
amount of the Revolving Facility (each, an “Incremental Revolving Facility”; together
with the Incremental Term Facilities, each an “Incremental Facility”), provided
that (i) at the time and after the effectiveness of any Incremental Amendment referred to below, no
Default or Event of Default shall have occurred and be continuing, (ii) the Company shall be in
compliance with the covenants contained in Section 7.1 determined on a pro forma basis as of the
last day of the most recent period of the Company for which financial statements are available as
if any term loans under such Incremental Facility had been outstanding and any revolving commitment
under such Incremental Facility (to the extent available to make Loans) had been fully used on the
last day of such period, (iii) in the case of an Incremental Revolving Facility, the Consolidated
Leverage Ratio determined on a pro forma basis as of the last day of the most recent fiscal quarter
of the Company for which financial statements are available, determined using the amount of Loans
expected to be borrowed under such Incremental Revolving Facility on the effective date thereof,
shall be less than 2.75 to 1.0 and (iv) in the case of an Incremental Term Facility, the
Consolidated Senior Secured Leverage Ratio, determined on a pro forma basis as of the last day of
the most recent fiscal quarter of the Company for which financial statements are available,
determined as if any term loans under such Incremental Term Facility had been outstanding on the
last day of such period, shall be less than 2.00 to 1.00. Each Incremental Facility shall be in an
aggregate principal amount that is not less than $50,000,000 (provided that such amount may
be less than $50,000,000 if such amount represents all remaining availability under the limit set
forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount
of the Incremental Facilities shall not exceed $300,000,000 at any one time outstanding.



          (b) (i) Any Incremental Facility shall be ratably secured with the Loans, (ii) any
Incremental Facility shall not mature earlier than the Revolving Termination Date or have a
weighted average life (if applicable and other than for nominal amortization of 1% or less of the
principal amount of such Incremental Facility per year) which is shorter than the then remaining
weighted average life of the Revolving Facility, (iii) the terms and conditions applicable to any
Incremental Revolving Facility (other than with respect to maturity, which shall be governed by the
preceding clause (ii)) shall be the same as those applicable to the Revolving Facility other than
such terms and conditions which do not apply or relate to any previously existing Facility or other
terms reasonably satisfactory to the Administrative Agent, (iv)(A) the Applicable Margin and
Facility Fee relating to any Incremental Revolving Facility shall be the same as the Applicable
Margin and Facility Fee relating to the Revolving Facility and (B) the Applicable Margin relating
to any Incremental Term Facility shall be determined by the Company and the Lenders providing such
Incremental Term Facility and (v) any Incremental Facility shall otherwise be on terms and pursuant
to documentation to be determined by the Company and the Persons willing to provide such
Incremental Facility, provided that (1) to the extent such terms and documentation are not
consistent with the then existing Facilities (other than with respect to pricing, amortization and
maturity) they shall be reasonably satisfactory to the Administrative Agent (it being agreed
Incremental Term Facilities may contain customary mandatory prepayments, voting rights and
prepayment premiums) and (2) in the case of Incremental Term Facilities, if the Applicable Margin
(which term for purposes of this Section 2.19 shall include any original issue discount
(“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable
by the Borrowers to the lenders under, and pricing floors applicable to, any Incremental Term
Facility in the primary syndication thereof (with OID being equated to interest based on assumed
four-year life to maturity)) relating to such Incremental Term Facility exceeds the Applicable
Margin relating to any then existing Incremental Term Facility immediately prior to the
effectiveness of the applicable Incremental Amendment, the Applicable Margin relating to such
existing Incremental Term Facility shall be adjusted to equal the Applicable Margin relating to
such subsequent Incremental Term Facility minus 0.25% per annum. Each notice from



40









 




the Company
pursuant to this Section 2.19 shall set forth the requested amount and proposed terms of the
relevant Incremental Facility and the Lenders or other Persons willing to provide the Incremental
Facility. The Incremental Facility may be provided by any existing Lender or by any Eligible
Assignee selected by the Company (any such other financial institution or fund being called an
“Additional Lender”), provided
that the Administrative Agent shall have consented (not to be unreasonably withheld) to such
Lender’s or Additional Lender’s providing such Incremental Facility if such consent would be
required under Section 10.6 for an assignment of Loans to such Lender or Additional Lender.
Commitments in respect of Incremental Facilities shall become Commitments under this Agreement
pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as
appropriate, the other Loan Documents, executed by the applicable Borrower(s), each Lender agreeing
to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent
pursuant to Section 10.1(e) hereof. The Incremental 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 and the Company, to
effect the provisions of this Section 2.19. The effectiveness of any Incremental Amendment shall
be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing
Date”) of each of the conditions set forth in Section 5.2 (it being understood that all
references to the date of making of an Extension of Credit or similar language in such Section 5.2
shall be deemed to refer to the effective date of such Incremental Amendment) and such other
conditions as the parties thereto shall agree. The Borrowers will use the proceeds of the
Incremental Facilities for any purpose not prohibited by this Agreement. No Lender shall be
obligated to provide any Incremental Facility, unless it so agrees. The Administrative Agent and
the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment
requirements contained elsewhere in this Agreement shall not apply to the transactions effected
pursuant to this paragraph.




          2.20. 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 Revolving Commitment of such Defaulting Lender
pursuant to Section 2.5(a);



          (b) the Commitment and Revolving Extensions of Credit 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 or waiver pursuant to Section 10.1),
provided that (i) any waiver, amendment or modification requiring the consent of all
Lenders or each affected Lender which affects such Defaulting Lender differently than other
affected Lenders shall require the consent of such Defaulting Lender and (ii) any waiver, amendment
or modification increasing the amount or extending the expiration date of such Defaulting Lender’s
Revolving Commitment, reducing the stated rate of any interest payable hereunder to such Defaulting
Lender or extending the scheduled date of any payment thereof to such Defaulting Lender that would,
absent this Section 2.20(b), require the consent of such Defaulting Lender pursuant to Section 10.1
shall require the consent of such Defaulting Lender.



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




     (i) all or any part of such Swingline Exposure and LC Exposure shall be reallocated
among the non-Defaulting Lenders in accordance with their respective Revolving Percentages
but only to the extent (x)(1) the sum of all non-Defaulting Lenders’ Revolving Extensions of
Credit plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the
total of all non-Defaulting Lenders’ Revolving Commitments and (2) each non-Defaulting
Lender’s



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Revolving Extensions of Credit plus its Revolving Percentage of such Defaulting
Lender’s Swingline Exposure and LC Exposure does not exceed such non-Defaulting Lender’s
Revolving Commitment and (y) the conditions set forth in Section 5.2 are satisfied at such
time;





     (ii) if the reallocation described in clause (i) above cannot, or can only
partially, be effected, the Company shall within one Business Day following notice by the
Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash
collateralize for the benefit of the Issuing Lender only 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 the last paragraph of Section 8 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 this Section 2.20(c), the Company shall not be required to pay any fees
to such Defaulting Lender pursuant to Section 3.3 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
this Section 2.20(c), then the fees payable to the Lenders pursuant to Section 2.5(a) and
Section 3.3 shall be adjusted in accordance with such non-Defaulting Lenders’ Revolving
Percentages; and




     (v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash
collateralized nor reallocated pursuant to this Section 2.20(c), then, without prejudice to
any rights or remedies of the Issuing Lender or any Lender hereunder, all facility fees that
otherwise would have been payable to such Defaulting Lender (solely with respect to the
portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC
Exposure) and letter of credit fees payable under Section 3.3 with respect to such
Defaulting Lender’s LC Exposure shall be payable to the Issuing Lender until such LC
Exposure is cash collateralized and/or reallocated; and



          (d) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be
required to fund any Swingline Loan and the Issuing Lender shall not be required to issue, amend or
increase any Letter of Credit, unless it is satisfied that the related exposure will be 100%
covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be
provided by the Company in accordance with Section 2.20(c), and participating interests in any such
newly made Swingline Loans or any newly issued or increased Letter of Credit shall be allocated
among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and Defaulting Lenders
shall not participate therein); and



          (e) any amount payable to such Defaulting Lender hereunder (whether on account of
principal, interest, fees or otherwise and including any amount that would otherwise be payable to
such Defaulting Lender pursuant to Section 10.7 but excluding Section 10.1(d)) shall, in lieu of
being distributed to such Defaulting Lender, be retained by the Administrative Agent in a
segregated account and, subject to any applicable requirements of law, be applied at such time or
times as may be determined by the Administrative Agent (i) first, to the payment of any
amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second,
to the payment of any amounts owing by such Defaulting Lender to the Issuing Lender hereunder,
(iii) third, if so determined by the Administrative Agent or requested by an Issuing Bank,
held in such account as cash collateral for future funding obligations of the Defaulting Lender in
respect of any existing or future participating interest in any Letter of Credit, (iv)
fourth, to the funding of any Revolving Loan in respect of which such Defaulting Lender has
failed to fund its portion thereof as required by this Agreement, as determined by the
Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the
Borrower, held in such account as



42









 




cash collateral for future funding obligations of the Defaulting
Lender in respect of any Revolving Loans under this Agreement, (vi) sixth, to the payment
of any amounts owing to the Lenders or an Issuing Lender as a result of any judgment of a court of
competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender
as a result of such Defaulting Lender’s breach of its
obligations under this Agreement, (vii) seventh, to the payment of any amounts owing
to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the
Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its
obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as
otherwise directed by a court of competent jurisdiction, provided, with respect to this clause
(viii), that if such payment is (x) a prepayment of the principal amount of any Revolving Loans or
Reimbursement Obligation in respect of which a Defaulting Lender has funded its participation
obligations and (y) made at a time when the conditions set forth in Section 5.2 are satisfied, such
payment shall be applied solely to prepay the Revolving Loans of, and Reimbursement Obligations
owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any
Revolving Loans, or Reimbursement Obligations owed to, any Defaulting Lender.




          If (i) a Bankruptcy Event with respect to a parent company of any Lender shall occur following
the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the
Issuing Lender 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 the Issuing Lender shall not be
required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the
Issuing Lender, as the case may be, shall have entered into arrangements with the Company or such
Lender, satisfactory to the Swingline Lender or the Issuing Lender, as the case may be, to defease
any risk to it in respect of such Lender hereunder; provided this paragraph shall not apply
if the Swingline Exposure and LC Exposure of such Lender is reallocated among non-Defaulting
Lenders and/or cash collateralized so that the Swingline Lender and Issuing Lender do not have any
risk in respect of such Lender.



          In the event that the Administrative Agent, the Company, the Swingline Lender and the Issuing
Lender 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 Revolving Commitment and on such date such
Lender shall purchase at par such of the Revolving Loans of the other Lenders (other than Swingline
Loans) as the Administrative shall determine may be necessary in order for such Lender to hold such
Revolving Loans in accordance with its Revolving Percentage.



SECTION 3. LETTERS OF CREDIT




          3.1. L/C Commitment. (a) Subject to the terms and conditions hereof, the Issuing
Lender, in reliance on the agreements of the other Lenders set forth in Section 3.4(a) agrees to
issue letters of credit (“Letters of Credit”) for the account of the Company (or jointly
for the account of the Company and a Subsidiary) on any Business Day during the Revolving
Commitment Period in such form as may be approved from time to time by the Issuing Lender;
provided that the Issuing Lender shall have no obligation to issue any Letter of Credit if,
after giving effect to such issuance, (i) the L/C Obligations would exceed the Dollar Equivalent of
the L/C Commitment, (ii) the aggregate amount of the Available Revolving Commitments would be less
than zero or (iii) the aggregate Dollar Equivalent of Alternative Currency Loans and Alternative
Currency LC Exposure would exceed the Alternative Currency Sublimit. Each Letter of Credit shall
(i) be denominated in Dollars or, if approved by the Issuing Lender, an Alternative Currency and
(ii) expire no later than the earlier of (x) the first anniversary of its date of issuance and (y)
(1) the date that is five Business Days prior to the Revolving Termination Date or (2) the date
that is one year after the Revolving Termination Date, provided that no later than the
60th day prior to the Revolving Termination Date (or for any Letters of Credit issued
after such date, the date of issuance),



43









 




the Company shall deposit in a cash collateral account
opened by the Administrative Agent an amount equal to 103% of the aggregate then undrawn and
unexpired amount of such Letters of Credit; provided that any Letter of Credit with a
one-year term may provide for the renewal thereof for additional one-year periods (which shall in
no event extend beyond the date referred to in clause (y) above).




          (b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if
such issuance would conflict with, or cause the Issuing Lender or any L/C Participant to exceed any
limits imposed by, any applicable Requirement of Law.



          3.2. Procedure for Issuance of Letter of Credit. The Company may from time to
time request that the Issuing Lender issue a Letter of Credit by delivering to the Issuing Lender
at its address for notices specified herein an Application therefor, completed to the satisfaction
of the Issuing Lender, and such other certificates, documents and other papers and information as
the Issuing Lender may request, including the currency in which such Letter of Credit is to be
denominated. Upon receipt of any Application, the Issuing Lender will process such Application and
the certificates, documents and other papers and information delivered to it in connection
therewith in accordance with its customary procedures and shall promptly issue the Letter of Credit
requested thereby (but in no event shall the Issuing Lender be required to issue any Letter of
Credit earlier than three Business Days (or four Business Days in the case of a Letter of Credit
denominated in an Alternative Currency) after its receipt of the Application therefor and all such
other certificates, documents and other papers and information relating thereto) by issuing the
original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed to by
the Issuing Lender and the Company. The Issuing Lender shall furnish a copy of such Letter of
Credit to the Company promptly following the issuance thereof. The Issuing Lender shall promptly
furnish to the Administrative Agent, which shall in turn promptly furnish to the Lenders, notice of
the issuance of each Letter of Credit (including the amount thereof).



          3.3. Fees and Other Charges. (a) The Company will pay a fee on all outstanding
Letters of Credit at a per annum rate equal to the Applicable Margin then in effect with respect to
Eurocurrency Loans, shared ratably among the Lenders and payable quarterly in arrears on each Fee
Payment Date after the issuance date. In addition, the Company shall pay to the Issuing Lender for
its own account a fronting fee of 0.125% per annum on the undrawn and unexpired amount of each
Letter of Credit, payable quarterly in arrears on each Fee Payment Date after the issuance date.



          (b) In addition to the foregoing fees, the Company shall pay or reimburse the Issuing
Lender for such normal and customary costs and expenses as are incurred or charged by the Issuing
Lender in issuing, negotiating, effecting payment under, amending or otherwise administering any
Letter of Credit.



          3.4. L/C Participations. (a) The Issuing Lender irrevocably agrees to grant and
hereby grants to each L/C Participant, and, to induce the Issuing Lender to issue Letters of
Credit, each L/C Participant irrevocably agrees to accept and purchase and hereby accepts and
purchases from the Issuing Lender, on the terms and conditions set forth below, for such L/C
Participant’s own account and risk an undivided interest equal to such L/C Participant’s Revolving
Percentage in the Issuing Lender’s obligations and rights under and in respect of each Letter of
Credit and the amount of each draft paid by the Issuing Lender thereunder. Each L/C Participant
agrees with the Issuing Lender that, if a draft is paid under any Letter of Credit for which the
Issuing Lender is not reimbursed in full by the Company in accordance with the terms of this
Agreement (or in the event that any reimbursement received by the Issuing Lender shall be required
to be returned by it at any time), such L/C Participant shall pay to the Issuing Lender upon demand
at the Issuing Lender’s address for notices specified herein an amount equal to such L/C
Participant’s Revolving Percentage of the amount that is not so reimbursed (or is so returned).
Each L/C Participant’s obligation to pay such amount shall be absolute and unconditional and



44









 




shall
not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or
other right that such L/C Participant may have against the Issuing Lender, any Borrower or any
other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default or an Event
of Default or the failure to satisfy any of the other conditions specified in Section 5, (iii) any
adverse change in the condition (financial or otherwise) of the Borrowers, (iv) any breach of this
Agreement or any other Loan
Document by any Borrower, any other Loan Party or any other L/C Participant or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.




          (b) If any amount required to be paid by any L/C Participant to the Issuing Lender
pursuant to Section 3.4(a) in respect of any unreimbursed portion of any payment made by the
Issuing Lender under any Letter of Credit is paid to the Issuing Lender within three Business Days
after the date such payment is due, such L/C Participant shall pay to the Issuing Lender on demand
an amount equal to the product of (i) such amount, times (ii) the daily average Federal Funds
Effective Rate during the period from and including the date such payment is required to the date
on which such payment is immediately available to the Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the denominator of
which is 360. If any such amount required to be paid by any L/C Participant pursuant to Section
3.4(a) is not made available to the Issuing Lender by such L/C Participant within three Business
Days after the date such payment is due, the Issuing Lender shall be entitled to recover from such
L/C Participant, on demand, such amount with interest thereon calculated from such due date at the
rate per annum applicable to ABR Loans. A certificate of the Issuing Lender submitted to any L/C
Participant with respect to any amounts owing under this Section shall be conclusive in the absence
of manifest error.



          (c) Whenever, at any time after the Issuing Lender has made payment under any Letter of
Credit and has received from any L/C Participant its pro rata share of such payment in accordance
with Section 3.4(a), the Issuing Lender receives any payment related to such Letter of Credit
(whether directly from the Company or otherwise, including proceeds of collateral applied thereto
by the Issuing Lender), or any payment of interest on account thereof, the Issuing Lender will
distribute to such L/C Participant its pro rata share thereof; provided, however,
that in the event that any such payment received by the Issuing Lender shall be required to be
returned by the Issuing Lender, such L/C Participant shall return to the Issuing Lender the portion
thereof previously distributed by the Issuing Lender to it.



          3.5. Reimbursement Obligation of the Company. If any draft is paid under any
Letter of Credit, the Company shall reimburse the Issuing Lender for the amount of (a) the draft so
paid and (b) any taxes, fees, charges or other costs or expenses incurred by the Issuing Lender in
connection with such payment, not later than 12:00 Noon, New York City time, on (i) one Business
Day after the Company receives notice of such draft, if such notice is received on such day prior
to 10:00 A.M., New York City time, or (ii) if clause (i) above does not apply, the Business Day
immediately following the day that the Company receives such notice. Each such payment shall be
made to the Issuing Lender at its address for notices referred to herein in Dollars (or, in the
case of a Letter of Credit denominated in an Alternative Currency, in such Alternative Currency or
in Dollars based on the Exchange Rate in effect on the date payment is made, as selected by the
Issuing Lender) and in immediately available funds. Interest shall be payable on any such amounts
in the applicable currency from the date on which the relevant draft is paid until payment in full
at the rate set forth in (x) until the Business Day next succeeding the date of the relevant
notice, Section 2.11(b) and (y) thereafter, Section 2.11(d).



          3.6. Obligations Absolute. The Company’s obligations under this Section 3 shall
be absolute and unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment that the Company may have or have had against the Issuing
Lender, any beneficiary of a Letter of Credit or any other Person. The Company also agrees with
the Issuing Lender



45









 




that the Issuing Lender shall not be responsible for, and the Company’s
Reimbursement Obligations under Section 3.5 shall not be affected by, among other things, the
validity or genuineness of documents or of any endorsements thereon, even though such documents
shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the
Borrowers and any beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Borrowers against any beneficiary of such
Letter of Credit or any such transferee. The Issuing Lender
shall not be liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection with any Letter of Credit,
except for errors or omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of the Issuing
Lender. The Borrowers agree that any action taken or omitted by the Issuing Lender under or in
connection with any Letter of Credit or the related drafts or documents, if done in the absence of
gross negligence or willful misconduct, shall be binding on the Borrowers and shall not result in
any liability of the Issuing Lender to the Borrowers.




          3.7. Letter of Credit Payments. If any draft shall be presented for payment under
any Letter of Credit, the Issuing Lender shall promptly notify the Company of the date and amount
thereof. The responsibility of the Issuing Lender to the Company in connection with any draft
presented for payment under any Letter of Credit shall, in addition to any payment obligation
expressly provided for in such Letter of Credit, be limited to determining that the documents
(including each draft) delivered under such Letter of Credit in connection with such presentment
are substantially in conformity with such Letter of Credit.



          3.8. Applications. To the extent that any provision of any Application related to
any Letter of Credit is inconsistent with the provisions of this Section 3, the provisions of this
Section 3 shall apply.



          3.9. Cash Collateralization. If on any date the Dollar Equivalent of the LC
Obligations exceeds the L/C Commitment by more than 103%, then the Company shall within three
Business Days after notice thereof from the Administrative Agent deposit in a cash collateral
account opened by the Administrative Agent an amount equal to such excess plus accrued and unpaid
interest thereon.



          3.10. Currency Adjustments.



          (a) Notwithstanding anything to the contrary contained in this Agreement, for purposes of
calculating any fee in respect of any Letter of Credit in respect of any Business Day, the
Administrative Agent shall convert the amount available to be drawn under any Letter of Credit
denominated in a currency other than Dollars into an amount of Dollars based upon the Exchange
Rate.



          (b) Notwithstanding anything to the contrary contained in this Section 3, prior to
demanding any reimbursement from the L/C Participants pursuant to Section 3.4 in respect of any
Letter of Credit denominated in a currency other than Dollars, the Issuing Lender shall convert (on
a Business Day determined by the Issuing Lender) the Company’s obligation under Section 3.4 to
reimburse the Issuing Lender in such currency into an obligation to reimburse the Issuing Lender in
Dollars. The Dollar amount of the reimbursement obligation of the Company and the L/C Participants
shall be computed by the Issuing Lender based upon the Exchange Rate in effect for the day on which
such conversion occurs.



          3.11. Existing Letters of Credit. On and as of the Closing Date, all letters of
credit issued under the Existing Credit Agreement which are outstanding on the Closing Date (the
“Existing Letters of Credit”) will constitute Letters of Credit under this Agreement and
for purposes hereof and will be deemed to have been issued for the account of the Company on the
Closing Date.



46









 





SECTION 4. REPRESENTATIONS AND WARRANTIES



          To induce the Agents and the Lenders to enter into this Agreement and the Lenders to make the
Loans and issue or participate in the Letters of Credit, each Loan Party hereby jointly and
severally represents and warrants to the Agents and each Lender that:



          4.1. No Change. Since December 31, 2010, there has been no development or event
that has had or would reasonably be expected to have a Material Adverse Effect (it being agreed
that solely for purposes of this Section 4.1 no change in automotive industry conditions or in
banking, financial or capital markets on and after such date which does not disproportionately
adversely affect the Company and its Subsidiaries, taken as a whole, shall have a Material Adverse
Effect).



          4.2. Existence; Compliance with Law. Each Loan Party (a) is duly organized,
validly existing and in good standing (or the functional equivalent thereof in the case of Foreign
Subsidiaries) under the laws of the jurisdiction of its organization, (b) has the power and
authority, and the legal right, to own and operate its property, to lease the property it operates
as lessee and to conduct the business in which it is currently engaged, (c) is duly qualified as a
foreign corporation or other organization and in good standing (or the functional equivalent
thereof in the case of Foreign Subsidiaries) under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business requires such
qualification and (d) is in compliance with all Requirements of Law, except in the case of (c) and
(d) when the failure to do so would not reasonably be expected to have a Material Adverse Effect.



          4.3. Power; Authorization; Enforceable Obligations. Each Loan Party has the power
and authority, and the legal right, to make, deliver and perform the Loan Documents to which it is
a party and, in the case of each Borrower, to obtain extensions of credit hereunder. Each Loan
Party has taken all necessary organizational action to authorize the execution, delivery and
performance of the Loan Documents to which it is a party and, in the case of the Borrowers, to
authorize the extensions of credit on the terms and conditions of this Agreement. No consent or
authorization of, filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the extensions of credit hereunder or
with the execution, delivery, performance, validity or enforceability of this Agreement or any of
the Loan Documents except (i) consents, authorizations, filings and notices described in Schedule
4.3, which consents, authorizations, filings and notices have been obtained or made and are in full
force and effect and (ii) the filings referred to in Section 4.20. Each Loan Document has been
duly executed and delivered on behalf of each Loan Party thereto. This Agreement constitutes, and
each other Loan Document upon execution will constitute, a legal, valid and binding obligation of
each Loan Party party thereto, enforceable against each such Loan Party in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally
and by general equitable principles (whether enforcement is sought by proceedings in equity or at
law).



          4.4. No Legal Bar. The execution, delivery and performance of this Agreement and
the other Loan Documents, the issuance of Letters of Credit, the borrowings hereunder and the use
of the proceeds thereof will not violate any Requirement of Law or any Contractual Obligation of
any Loan Party and will not result in, or require, the creation or imposition of any Lien on any of
their respective properties or revenues pursuant to any Requirement of Law or any such Contractual
Obligation (other than the Liens created by the Loan Documents).



          4.5. Litigation. No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of the Company, threatened by
or against any Loan Party or against any of their respective properties or revenues (including with
respect to the Loan Documents) that would reasonably be expected to have a Material Adverse Effect.



47









 





          4.6. No Default. No Loan Party is in default under or with respect to any of its
Contractual Obligations in any respect that would reasonably be expected to have a Material Adverse
Effect. No Default or Event of Default has occurred and is continuing.



          4.7. Ownership of Property; Liens. Except as would not reasonably be expected to
have a Material Adverse Effect, each Loan Party has title in fee simple to, or a valid leasehold,
subleasehold, license or other interest in, all its real property, and good title to, or a valid
leasehold interest in, all its other property, and none of such property, except for minor
encumbrances and defects in title that do not materially interfere with its ability to conduct its
business as currently conducted or to utilize such properties and assets for their intended
purposes is subject to any Lien except as permitted by Section 7.3.



          4.8. Intellectual Property. Except as would not reasonably be expected to have a
Material Adverse Effect: each Loan Party owns, or is licensed to use, all Intellectual Property
necessary for the conduct of its business as currently conducted; no claim has been asserted and is
pending by any Person against any Loan Party challenging or questioning the use of any Intellectual
Property or the validity or effectiveness of any Intellectual Property of any Loan Party, nor does
the Company know of any valid basis for any such claim; and to the knowledge of the Company, no use
by each Loan Party of any of its Intellectual Property infringes on the rights of any Person.



          4.9. Taxes. Each Loan Party has filed or caused to be filed all Federal and
material state and other material Tax returns that are required to be filed and has paid all Taxes
shown to be due and payable on said returns or on any material assessments made against it or any
of its property and all other material Taxes imposed on it or any of its property by any
Governmental Authority (except any such Taxes the amount or validity of which are currently being
contested in good faith by appropriate proceedings and with respect to which reserves in conformity
with GAAP (where GAAP requires such reserves) have been provided on the books of the relevant Loan
Party).



          4.10. Federal Regulations. No part of the proceeds of any Loans, and no other
extensions of credit hereunder, will be used (a) for “buying” or “carrying” any “margin stock”
within the respective meanings of each of the quoted terms under Regulation U as now and from time
to time hereafter in effect for any purpose that violates the provisions of the Regulations of the
Board or (b) for any purpose that violates the provisions of the Regulations of the Board. If
requested by any Lender or the Administrative Agent, the Company (and each other applicable
Borrower) will furnish to the Administrative Agent and each Lender a statement to the foregoing
effect in conformity with the requirements of FR Form G-3 or FR Form U 1, as applicable, referred
to in Regulation U.



          4.11. Labor Matters. Except as, in the aggregate, would not reasonably be
expected to have a Material Adverse Effect: (a) there are no strikes or other labor disputes
against any Loan Party pending or, to the knowledge of the Company, threatened; (b) hours worked by
and payment made to employees of each Loan Party have not been in violation of the Fair Labor
Standards Act or any other applicable Requirement of Law dealing with such matters; and (c) all
payments due from any Loan Party on account of employee health and welfare insurance have been, in
all material respects, paid or accrued as a liability on the books of the relevant Loan Party.



          4.12. ERISA. Except, in the aggregate, as would not reasonably be expected to
result in a Material Adverse Effect, (i) each Loan Party and each of their respective ERISA
Affiliates is in compliance with the applicable provisions of ERISA and the Code relating to Single
Employer Plans and Multiemployer Plans and the regulations and published interpretations thereunder
and (ii) no ERISA Event has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan. Except, in the aggregate, as would
not reasonably be expected to



48









 




result in a Material Adverse Effect, the present value of all accrued
benefits under each Single Employer Plan (based on those assumptions used to fund such Plan) did
not, as of the last annual valuation date prior to the date on which this representation is made or
deemed made, exceed the value of the assets of such Plan allocable to such accrued benefits.




          4.13. Investment Company Act; Other Regulations. No Loan Party is an “investment
company”, or a company “controlled” by an “investment company”, within the meaning of the
Investment Company Act of 1940, as amended. No Loan Party is subject to regulation under any
Requirement of Law (other than Regulation X of the Board) that limits its ability to incur the
Indebtedness to be incurred hereunder.



          4.14. Subsidiaries. As of the date hereof, (a) Schedule 4.14 sets forth the name
and jurisdiction of incorporation of each Subsidiary and, as to each such Subsidiary, the
percentage of each class of Capital Stock owned by any Loan Party and (b) except as set forth on
Schedule 4.14, there are no outstanding subscriptions, options, warrants, calls, rights or other
agreements or commitments (other than stock options or similar equity awards granted to current or
former employees or directors and directors’ qualifying shares) of any nature relating to any
Capital Stock of the Company or any Subsidiary.



          4.15. Use of Proceeds. The proceeds of the Loans shall be used (a) to replace and
refinance the outstanding loans made under the Existing Credit Agreement and to pay fees and
expenses in connection therewith and (b) for working capital and general corporate purposes. The
proceeds of the Loans shall not be used to purchase or carry margin stock for any purpose that
violates the Regulations of the Board.



          4.16. Environmental Matters. Except as, in the aggregate, would not reasonably be
expected to have a Material Adverse Effect:



          (a) the facilities and properties owned, leased or operated by any Group Member (the
“Properties”) do not contain, and to the knowledge of the Company, have not previously
contained, any Materials of Environmental Concern in amounts or concentrations or under
circumstances that constitute or constituted a violation of, or could give rise to liability under,
any Environmental Law;



          (b) no Group Member has received or is aware of any notice of violation, alleged
violation, non-compliance, liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the Properties or the business operated by
any Group Member (the “Business”), nor does the Company have knowledge or reason to believe
that any such notice will be received or is being threatened;



          (c) Materials of Environmental Concern have not been transported or disposed of from the
Properties during the last five years or, to the knowledge of the Company, any prior time in
violation of, or in a manner or to a location that could give rise to liability under, any
Environmental Law, nor have any Materials of Environmental Concern been generated, treated, stored
or disposed of at, on or under any of the Properties during the last five years or, to the
knowledge of the Company, any prior time in violation of, or in a manner that could give rise to
liability under, any applicable Environmental Law;



          (d) no judicial proceeding or governmental or administrative action is pending or, to the
knowledge of the Company, threatened, under any Environmental Law to which any Group Member is or
will be named as a party with respect to the Properties or the Business, nor are there any consent
decrees or other decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law with respect to the
Properties or the Business;



49









 





          (e) there has been no release or threat of release of Materials of Environmental Concern
at or from the Properties, or arising from or related to the operations of any Group Member in
connection with the Properties or otherwise in connection with the Business, during the last five
years or,
to the knowledge of the Company, any prior time in violation of or in amounts or in a manner
that could give rise to liability under Environmental Laws;



          (f) the Properties and all operations at the Properties are in compliance, and have in the
last five years and, to the knowledge of the Company, at all prior times been in compliance, with
all applicable Environmental Laws, and there is no contamination at, under or about the Properties
or violation of any Environmental Law with respect to the Properties or the Business; and



          (g) no Group Member has assumed any liability by contract or, to the knowledge of the
Company, operation of law, of any other Person under Environmental Laws.



          4.17. Accuracy of Information, etc. No factual statement or information contained
in this Agreement, any other Loan Document or any other document, certificate or statement
furnished by or on behalf of any Loan Party to the Administrative Agent, the Lenders, or any of
them, for use in connection with the transactions contemplated by this Agreement or the other Loan
Documents other than any projections or pro forma information, when taken as a whole, contained as
of the date such statement, information, document or certificate was so furnished, any untrue
statement of a material fact or omitted to state a material fact necessary to make the statements
contained herein or therein not materially misleading in light of the circumstances when made. The
projections and pro forma information contained in the materials referenced above are based upon
good faith estimates and assumptions believed by management of the Borrowers to be reasonable at
the time made, it being recognized by the Lenders that such projections as they relate to future
events are subject to significant uncertainties, many of which are beyond the control of the
Borrowers and not to be viewed as fact and that actual results during the period or periods covered
by such projections may differ from the projected results set forth therein by a material amount.



          4.18. Financial Statements.



          (a) The (i) audited consolidated balance sheet of the Company and its consolidated
Subsidiaries as of December 31, 2010 and the related statements of income and cash flow for the
fiscal year ending on such date and (ii) unaudited consolidated balance sheet of the Company and
its consolidated Subsidiaries as of April 2, 2011 and the related statements of income and cash
flow for the fiscal quarter ending on such date, each as heretofore furnished to the Administrative
Agent and the Lenders and certified by a Responsible Officer of the Company, are complete and
correct in all material respects and fairly present the financial condition of the Company and its
Subsidiaries on such date. All such financial statements, including the related schedules and notes
thereto, have been prepared in conformity with GAAP applied on a consistent basis, and all
liabilities, direct and contingent, of the Company on a consolidated basis with its Subsidiaries on
such date required to be disclosed pursuant to GAAP are disclosed in such financial statements,
subject to year-end audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above.



          4.19. Insurance. All policies of insurance of any kind or nature owned by or
issued to each Loan Party, including policies of life, fire, theft, product liability, public
liability, property damage, other casualty, employee fidelity, workers’ compensation, employee
health and welfare, property and liability insurance, are (a) in full force and effect except to
the extent commercially reasonably determined by the Company not to be necessary pursuant to clause
(b) of this Section 4.19 or which is not material to the overall coverage and (b) are of a nature
and provide such coverage as in the reasonable



50









 




opinion of the Company, is sufficient and is
customarily carried by companies of the size and character of the Loan Parties.




          4.20. Security Documents. (a) The Guarantee and Collateral Agreement is
effective to create in favor of the Collateral Agent, for its benefit, for the benefit of the
Administrative Agent and for the benefit of the Lenders, a legal, valid and enforceable security
interest in the Collateral described therein and proceeds thereof. In the case of the Pledged
Stock described in the Guarantee and Collateral Agreement, when stock certificates representing
such Pledged Stock are delivered to the Collateral Agent (together with a properly completed and
signed stock power or endorsement), and in the case of the other Collateral described in the
Guarantee and Collateral Agreement, when financing statements and other filings specified on
Schedule 4.20(a) in appropriate form are filed in the offices specified on Schedule 4.20(a)
together with payment of any filing or recordation fees, or, with respect to after-acquired
property, when the requirements set forth in Section 6.9 have been complied with, the Collateral
Agent shall have a fully perfected Lien on, and security interest in, all right, title and interest
of the Loan Parties in such Collateral and the proceeds thereof (except for registration of and
application for Intellectual Property filed outside the United States) to the extent such Lien can
be perfected by the filing of financing statements under the applicable UCC, as security for the
Obligations (as defined in the Guarantee and Collateral Agreement), in each case prior and superior
in right to any other Person (except, in the case of Collateral other than Pledged Stock, Liens
permitted by Section 7.3, and in the case of Collateral constituting Pledged Stock, inchoate Liens
arising by operation of law and Liens permitted by Section 7.3(m)), in each case, to the extent
required by the Guarantee and Collateral Agreement.



          (b) Each of the Mortgages is effective to create in favor of the Collateral Agent, for its
benefit, for the benefit of the Administrative Agent and for the benefit of the Lenders, a legal,
valid and enforceable Lien on the Mortgaged Property described therein, and when the Mortgages are
filed in the offices specified on Schedule 4.20(b), each such Mortgage shall constitute a Lien on,
and security interest in, all right, title and interest of the Loan Parties in the subject
Mortgaged Property, as security for the Obligations (as defined in the relevant Mortgage), in each
case prior and superior in right to any other Person (except Liens permitted by Section 7.3).
Schedule 1.1B lists, as of the date hereof, each parcel of owned real property located in the
United States and held by the Company or any of the Guarantors that has a fair market value
estimated in good faith by the Company, in excess of $5,000,000 (each, a “Mortgaged
Property”).



          4.21. Solvency. After giving effect to the occurrence of the Closing Date and the
incurrence of all Indebtedness and Obligations being incurred in connection herewith and therewith,
the Company is Solvent.



          4.22. Regulation H. Except as disclosed in Schedule 4.22, no Mortgage encumbers
improved real property that is located in an area that has been identified by the Secretary of
Housing and Urban Development as an area having special flood hazards and in which flood insurance
has been made available under the National Flood Insurance Act of 1968, as amended.



SECTION 5. CONDITIONS PRECEDENT




          5.1. Closing Date. The agreement of each Lender to make the extension of credit
requested to be made by it on the Closing Date is subject to the satisfaction, prior to or
concurrently with the making of such extension of credit on the Closing Date, of the following
conditions precedent:



          (a) Credit Agreement. The Administrative Agent shall have received (i) this
Agreement, executed and delivered by each Borrower and (ii) the Guarantee and Collateral Agreement,
executed and delivered by the Company and each Guarantor.



51









 





          (b) Closing Certificate; Certified Certificate of Incorporation; Good Standing
Certificates. The Administrative Agent shall have received (i) a certificate of a Responsible
Officer of
each Loan Party, dated the Closing Date, in form and substance reasonably satisfactory to the
Administrative Agent, as to the incumbency and signature of their respective officers executing
each Loan Document to which it is a party, together with satisfactory evidence of the incumbency of
such Responsible Officer, (ii) a copy of the resolutions, in form and substance reasonably
satisfactory to the Administrative Agent, of the Board of Directors (or the executive committee or
other governing authority thereof) of each Loan Party authorizing the execution, delivery and
performance of each Loan Document to be entered into on the Closing Date to which it is a party,
(iii) a certificate of the Company, in form and substance reasonably satisfactory to the
Administrative Agent, attaching the certificate of incorporation of each Loan Party that is a
corporation certified by the relevant authority of the jurisdiction of organization of such Loan
Party and (iv) a good standing certificate for each Loan Party from its jurisdiction of
organization.



          (c) Fees. The Lenders and the Administrative Agent shall have received all fees
required to be paid, and all expenses for which invoices have been presented (including the
reasonable fees and expenses of legal counsel), on or before the Closing Date.



          (d) Legal Opinions of Counsel to the Company. The Administrative Agent shall have
received an opinion, in form and substance reasonably satisfactory to the Administrative Agent, of
counsel to the Company and its Subsidiaries.



          (e) Refinancing of Existing Credit Agreement. The Existing Credit Agreement shall
have been refinanced, amended and restated pursuant to the Agreement.



          (f) Projections. The Company shall have delivered projections through December
31, 2013 prepared in good faith on the basis of the assumptions stated therein.



          (g) Financial Statements. The Lenders shall have received (i) audited
consolidated financial statements of the Company and its Subsidiaries for the most recently ended
fiscal year and (ii) unaudited interim consolidated financial statements of the Company and its
Subsidiaries for each fiscal quarter ended after the date of the latest applicable financial
statements delivered pursuant to clause (i) of this paragraph as to which such financial statements
are available.



          (h) No Default. No Default or Event of Default shall have occurred and be
continuing on such date or after giving effect to the extensions of credit requested to be made on
such date.



          (i) Patriot Act and “Know Your Customer” Information. The Administrative Agent
shall have received all documentation and other information mutually agreed to be required by
regulatory authorities under applicable “know your customer” and anti-money laundering rules and
regulations, including the United States PATRIOT Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)) (the “USA Patriot Act”).



          (j) Insurance. The Administrative Agent shall have received insurance
certificates satisfying the requirements of Section 6.5 and the corresponding section of the
Mortgages.



          (k) Pledged Stock; Stock Powers; Pledged Notes. The Collateral Agent shall have
received (or have made arrangements to receive) (i) the certificates representing the shares of
Capital Stock pledged pursuant to the Security Documents, together with an undated stock power for
each such certificate executed in blank by a duly authorized officer of the pledgor thereof and
(ii) each promissory



52









 




note (if any) pledged to the Collateral Agent pursuant to the Security
Documents endorsed (without recourse) in blank (or accompanied by an executed transfer form in
blank) by the pledgor thereof, in each
case of the foregoing, to the extent not previously delivered to the Administrative Agent
under the Existing Credit Agreement.




          (l) Mortgages, etc. (i) The Administrative Agent shall have received amendments
to each Mortgage with respect to each Mortgaged Property, each in form and substance reasonably
acceptable to the Administrative Agent and in form for recording in the applicable Mortgage
recording office, executed and delivered by a duly authorized officer of each party thereto.




     (ii) If requested by the Administrative Agent, the Administrative Agent shall have
received a copy of any existing surveys for the Mortgaged Properties.




     (iii) The Administrative Agent shall have received in respect of each Mortgaged
Property (A) a policy of flood insurance that (1) covers any parcel of improved real
property that is encumbered by any Mortgage and located in a special flood hazard area, (2)
is written in an amount not less than the outstanding principal amount of the indebtedness
secured by such Mortgage that is reasonably allocable to such real property or the fair
market value of such real property as estimated in good faith by the Company, whichever is
less, and (3) has a term ending not later than the maturity of the Indebtedness secured by
such Mortgage and (B) a “Life-of-Loan” Federal Emergency Management Agency Standard Flood
Hazard Determination with respect to each of the Mortgaged Properties (together with a
notice about special flood hazard area status and flood disaster assistance duly executed by
the Borrower and each Loan Party relating thereto in the event any such Mortgaged Properties
are located within a special flood hazard area).



          (m) Filings, Registrations and Recordings. Each document (including any Uniform
Commercial Code financing statement) required by the Security Documents or under law or reasonably
requested by the Administrative Agent to be filed, registered or recorded in order to create in
favor of the Collateral Agent, for its benefit, for the benefit of the Administrative Agent and for
the ratable benefit of the Lenders, a perfected Lien (or in the case of the Mortgages, a valid
Lien) on the Collateral described therein, prior and superior in right to any other Person (other
than with respect to Liens expressly permitted by Section 7.3), shall be in proper form to the
satisfaction of the Collateral Agent for filing, registration or recordation.



          5.2. Each Extension of Credit. The agreement of each Lender to make the Extension
of Credit requested to be made by it on any date is subject to the satisfaction of the following
conditions precedent (except to the extent waived by the Required Lenders):



          (a) Representations and Warranties. Each of the representations and warranties
(other than the representations and warranties made after the Closing Date in Sections 4.1 and 4.5)
made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all
material respects (provided that if any representation or warranty is by its terms
qualified by materiality, such representation shall be true and correct in all respects) on and as
of such date as if made on and as of such date, except to the extent that any such representation
or warranty is stated to relate solely to an earlier date, in which case such representation or
warranty shall be true and correct on and as of such earlier date.



          (b) No Default. No Default or Event of Default shall have occurred and be
continuing on such date or immediately after giving effect to the extensions of credit requested to
be made on such date.



53









 





          (c) Foreign Subsidiary Information. If such requested Extension of Credit is the
initial Loan to be made to any Foreign Subsidiary Borrower that is not a party to this Agreement on
the Closing
Date, the Administrative Agent shall have received (with a copy for each Lender) (i) a Foreign
Subsidiary Opinion in respect of such Foreign Subsidiary Borrower and information with respect to
such Foreign Subsidiary Borrower of the type described in paragraph (d) of Section 5.1 and (ii) all
documentation and other information with respect to such Foreign Subsidiary Borrower of the type
described in paragraph (i) of Section 5.1.



SECTION 6. AFFIRMATIVE COVENANTS




          Each Loan Party hereby jointly and severally agrees that, commencing on the Closing Date and
so long as the Commitments remain in effect, any Letter of Credit remains outstanding or any Loan
or other amount is owing to any Lender or the Administrative Agent hereunder, each Loan Party shall
and shall cause each of its Subsidiaries to:



          6.1. Financial Statements. Furnish to the Administrative Agent to be provided to
each Lender:



          (a) as soon as available, but in any event not later than 120 days after the end of each
fiscal year of the Company, a copy of the audited consolidated balance sheet of the Company and its
consolidated Subsidiaries as at the end of such year and the related audited consolidated
statements of income and of cash flows for such year, setting forth in each case, in comparative
form the figures for the previous year, reported on without a qualification arising out of the
scope of the audit or other material qualification or exception, by independent certified public
accountants of nationally recognized standing; and



          (b) as soon as available, but in any event not later than 60 days after the end of each of
the first three quarterly periods of each fiscal year of the Company, commencing with the fiscal
quarter ended on or about June 30, 2011, the unaudited consolidated and consolidating (on the same
consolidating basis, if any, as the Company delivers to the holders of its Permitted Notes) balance
sheet of the Company and its consolidated Subsidiaries as at the end of such quarter and the
related unaudited consolidated and consolidating (on the same consolidating basis, if any, as the
Company delivers to the holders of its Permitted Notes) statements of income and of cash flows for
such quarter and the portion of the fiscal year through the end of such quarter, setting forth in
each case, in comparative form the figures for the previous year, certified by a Responsible
Officer, on behalf of the Company, as being fairly stated in all material respects.


All such financial statements shall be complete and correct in all material respects and shall be
prepared in reasonable detail and in accordance with GAAP applied (except (i) as approved by such
accountants or officer, as the case may be, and disclosed in reasonable detail therein and (ii)
with respect to unaudited statements, the absence of footnote disclosure and subject to year-end
audit adjustments) consistently throughout the periods reflected therein and with prior periods.




          6.2. Certificates; Other Information. Furnish to the Administrative Agent which
shall make such item available to each Lender (or, in the case of clause (f), to the relevant
Lender):



          (a) [Reserved.];



          (b) concurrently with the delivery of any financial statements pursuant to Section 6.1,
(i) a certificate of the Company stating that the Responsible Officer executing such certificate on
behalf of the Company has no knowledge of any Default or Event of Default except as specified in
such



54









 




certificate, (ii) a Compliance Certificate containing all information and calculations
necessary for determining compliance by each Loan Party with the provisions of this Agreement
referred to therein, including
calculations in reasonable detail with respect to compliance with Section 7.1, and (iii) in
the case of quarterly or annual financial statements, to the extent not previously disclosed to the
Administrative Agent, (1) a description of any change in the jurisdiction of organization of any
Loan Party, (2) a description of any Domestic Subsidiary (other than an Immaterial Domestic
Subsidiary) acquired or created, including name and jurisdiction of organization, and (3) a
description of any Person that has become a Loan Party, in each case since the date of the most
recent report delivered pursuant to this clause (iii) (or, in the case of the first such report so
delivered, since the Closing Date);




          (c) concurrently with the delivery of any financial statements pursuant to Section 6.1(a)
or (b), a narrative discussion and analysis of the financial condition and results of operations of
the Company and its Subsidiaries for such fiscal quarter and for the period from the beginning of
the then current fiscal year to the end of such fiscal quarter;



          (d) within five days after the same are filed, copies of all financial statements and
reports that the Company may make to, or file with, the SEC including, without limitation, any
press release providing earnings guidance;



          (e) to the Administrative Agent on behalf of each Required Lender promptly following
receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that,
following reasonable request of the Administrative Agent (which right to request shall be exercised
no more than once during a 12-month period), any Loan Party or any ERISA Affiliate shall have
promptly requested from the administrator or sponsor of a Multiemployer Plan with respect to such
Multiemployer Plan; and



          (f) promptly, subject to applicable confidentiality agreements of the Group Members, such
reasonably available additional financial and other information as any Lender through the
Administrative Agent may from time to time reasonably request.


Documents required to be delivered pursuant to Section 6.1, Section 6.2 or Section 6.7 may be
delivered electronically and if so delivered, shall be deemed to have been delivered on the date
received by the Administrative Agent. Each Lender shall be deemed to have received such documents
on the date on which such documents are posted on the Company’s behalf on IntraLinks/IntraAgency or
another relevant website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial or governmental third-party website or whether sponsored by the
Administrative Agent); provided, that the Company shall notify (which may be by facsimile
or electronic mail) the Administrative Agent of the posting of any such documents and, at the
request of the Administrative Agent, provide by electronic mail electronic versions (i.e., soft
copies) of such documents.




          6.3. Payment of Obligations. Pay, discharge or otherwise satisfy at or before
maturity or before they become delinquent, as the case may be, all its material obligations in
respect of Taxes, assessments and governmental charges or levies of whatever nature, except where
the amount or validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP, or, in the case of Foreign Subsidiary Borrowers
or other Foreign Subsidiaries, with generally accepted accounting principles in effect from time to
time in their respective jurisdiction of organization, with respect thereto have been provided on
the books of the Company and its Subsidiaries.



          6.4. Maintenance of Existence; Compliance. (a) (i) Preserve, renew and keep in
full force and effect its organizational existence and (ii) take all reasonable action to maintain
all rights, privileges and franchises necessary or desirable in the normal conduct of its business,
except, in each



55









 




case, as otherwise permitted by Section 7.4 or Section 7.5 and except, in the case
of clause (ii) above, to the extent that failure to do so would not reasonably be expected to have
a Material Adverse Effect; and (b) comply in all material respects with all Requirements of Law.




          6.5. Maintenance of Property; Insurance. (a) Keep all property useful and
necessary in its business in good working order and condition, ordinary wear and tear excepted
except as would not reasonably be expected to have a Material Adverse Effect and (b) maintain with
financially sound and reputable insurance companies insurance on its material property in at least
such amounts and against at least such risks (but including in any event public liability and
product liability) as are usually insured against in the same general area by companies engaged in
the same or a similar business.



          6.6. Inspection of Property; Books and Records; Discussions. (a) 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 and (b) permit representatives of the
Agents or any Lender (subject to reasonable confidentiality agreements) to visit and inspect any of
its properties and examine and make abstracts from any of its books and records at any reasonable
time upon reasonable notice and as often as may reasonably be desired and to discuss the business,
operations, properties and financial and other condition of the Group Members with officers and
managerial employees of the Group Members and with their independent certified public accountants,
provided that an officer of the Company shall be provided reasonable opportunity to
participate in any such discussion with the accountants; provided further that such
inspections shall be coordinated through the Administrative Agent so that in the absence of an
Event of Default, not more than one such inspection shall occur in any calendar year. The Agents
and the Lenders agree to use reasonable efforts to coordinate and manage the exercise of their
rights under this Section 6.6 so as to minimize the disruption to the business of the Company and
its Subsidiaries resulting therefrom.



          6.7. Notices. Upon a Responsible Officer learning of the same, promptly give
notice to the Administrative Agent and each Lender of:



          (a) the occurrence of any Default or Event of Default;



          (b) any litigation or proceeding affecting any Loan Party (i) in which the amount involved
is $35,000,000 or more and not covered by insurance, (ii) in which injunctive or similar relief is
sought which would reasonably be expected to have a Material Adverse Effect or (iii) which relates
to any Loan Document;



          (c) the occurrence of any ERISA Event that, alone or together with any other ERISA
Event(s) that have occurred, would reasonably be expected to result in liability of any Loan Party
or any of its ERISA Affiliates in an aggregate amount exceeding $35,000,000; and



          (d) any development or event that has had or would reasonably be expected to have a
Material Adverse Effect.


Each notice pursuant to this Section 6.7 shall be accompanied by a statement of a Responsible
Officer setting forth details of the occurrence referred to therein and stating what action the
relevant Loan Party proposes to take with respect thereto.




          6.8. Environmental Laws. Except as, in the aggregate, would not reasonably be
expected to have a Material Adverse Effect:



56









 





          (a) comply with, and take all commercially reasonable steps to ensure compliance by all
tenants and subtenants, if any, with, all applicable Environmental Laws, and obtain and comply with
and maintain, and take all commercially reasonable steps to ensure that all tenants and subtenants
obtain and comply with and maintain, any and all licenses, approvals, notifications, registrations
or permits required by applicable Environmental Laws.



          (b) conduct and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws and promptly comply with all
lawful orders and directives of all Governmental Authorities regarding Environmental Laws.



          6.9. Additional Collateral, etc.. (a) With respect to any property acquired
after the Closing Date by any Domestic Loan Party (other than (x) any property described in
paragraph (b) below and (y) any property constituting Excluded Property) as to which the Collateral
Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly upon
request by the Administrative Agent (i) execute and deliver to the Administrative Agent such
amendments to the Security Documents or such other documents as the Administrative Agent deems
necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a
security interest in such property and (ii) take all actions necessary or advisable to grant to the
Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security
interest under the laws of the United States in such property, including the filing of Uniform
Commercial Code financing statements in such jurisdictions as may be required by the Security
Documents or by law or as may be requested by the Administrative Agent. Notwithstanding anything
in this Agreement to the contrary, the Loan Parties will not be required to deliver control
agreements with respect to the Collateral.



          (b) (i) As soon as possible (and in no event later than 45 days after the delivery of any
financial statements under Section 6.1(a) or 6.1(b), for any fiscal period, in the case of
Subsidiaries referred to in the following clause (A) which period may be extended by the
Administrative Agent from time to time in its discretion), cause (A) all of the Capital Stock
(other than Excluded Property) owned by any Domestic Loan Party to be pledged to the Collateral
Agent, pursuant to an amendment to the Security Documents and/or the schedules thereto if
reasonably requested by the Administrative Agent, and (B) the Administrative Agent to receive legal
opinions of counsel to the Company acceptable to the Administrative Agent covering such matters in
respect of such pledges as the Administrative Agent shall reasonably request.




     (ii)
        Notwithstanding the foregoing, cause the Capital Stock of any Special Purpose
Subsidiary or Subsidiary of the Company which acts as a purchaser of receivables for a
receivables securitization program of the Company and its Domestic Subsidiaries to be
pledged as Collateral pursuant to the Security Documents.



          (c) As soon as possible (and in no event later than 45 days after the delivery of any
financial statements under Section 6.1(a) or 6.1(b), for any fiscal period, in the case of
Subsidiaries referred to in the following clause (i) which period may be extended by the
Administrative Agent from time to time in its discretion), cause (i) each of the Company’s direct
or indirect Domestic Subsidiaries (other than (A) an Excluded Subsidiary, (B) an Immaterial
Domestic Subsidiary (provided that all Immaterial Domestic Subsidiaries excluded under this
clause (B) and clause (b) of the definition of “Guarantor” shall not, following the period
described in the first parenthetical phrase of this clause (c), contribute in the aggregate more
than 7.5% of Consolidated Assets or more than 7.5% of Consolidated Revenues), (C) a joint venture
in which not more than 85% of the aggregate voting Capital Stock of such joint venture is held by
the Domestic Loan Parties in the aggregate, (D) a direct holding company of one or more joint
ventures under clause (C) hereof, provided that such holding company does not engage in any
business or own any assets other than owning the Capital Stock of such joint ventures or (E) a U.S.



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Foreign Holdco), to become a Guarantor and Grantor by executing and delivering a joinder or
assumption agreement to the Guarantee and Collateral Agreement in a form reasonably requested by
the Administrative Agent if such Subsidiary is not then a Guarantor and (ii) opinions of counsel to
the Company, in form and substance reasonably satisfactory to the Administrative Agent, covering
such matters in respect of the Guarantee and Collateral Agreement as the Administrative Agent shall
reasonably request to be delivered to the Administrative Agent.




          (d) With respect to any fee interest in any real property having a fair market value
(together with improvements thereof) in the good faith estimation of the Company of at least
$5,000,000 or otherwise not constituting Excluded Property acquired after the Closing Date by any
Loan Party (other than any such real property subject to a Lien expressly permitted by Section
7.3(g)), as soon as reasonably possible and in any event within 60 days after such acquisition (or
such later times as the Administrative Agent may agree), execute and deliver a Mortgage, in favor
of the Collateral Agent, for its benefit, for the benefit of the Administrative Agent and for the
benefit of the Lenders, covering such real property, creating a Lien on such real property prior
and superior in right to all other Liens on such real property (except Liens permitted by Section
7.3), (ii) if reasonably requested by the Administrative Agent, provide the Collateral Agent, for
its benefit, for the benefit of the Administrative Agent and for the benefit of the Lenders with
(x) title searches in respect of such real property as well as a current map or plat of an as-built
survey thereof, together with a surveyor’s certificate and (y) any consents or estoppels reasonably
deemed necessary by the Administrative Agent in connection with such Mortgage, each of the
foregoing in form and substance reasonably satisfactory to the Administrative Agent and (iii) if
requested by the Administrative Agent, deliver to the Agents legal opinions relating to the matters
described above, which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.



          6.10. Suspension of Collateral Requirements. Notwithstanding any other provisions
of the Loan Documents, the Liens on and security interests in the Collateral shall be automatically
released, and the Group Members shall have no obligation to create or perfect Liens on and security
interests in the Collateral at any time both (x) the Corporate Ratings are at least BBB- (stable)
from S&P and Baa3 (stable) from Moody’s and (y) the Liens on and security interests in the
Collateral permitted by paragraph (v) of Section 7.3 are released. The Company shall cause the
Loan Parties to enter into the Loan Documents and take any actions required by the Loan Documents
to create or perfect Liens on and security interests in the Collateral promptly following any date
on which the preceding sentence does not apply.



          6.11. Foreign Subsidiary Borrowers. Cause each Foreign Subsidiary Borrower to be
a Wholly Owned Subsidiary, unless approved by the Administrative Agent.



SECTION 7. NEGATIVE COVENANTS




          Each Loan Party hereby jointly and severally agrees that, commencing on the Closing Date and
so long as the Commitments remain in effect, any Letter of Credit remains outstanding or any Loan
or other amount is owing to any Lender or the Administrative Agent hereunder, they shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly:



          7.1. Financial Covenants.



          (a) Consolidated Leverage Ratio. Permit, on the last day of any fiscal quarter
beginning with the first fiscal quarter end date following the Closing Date, the Consolidated
Leverage Ratio for the four consecutive fiscal quarters of the Company ending with such fiscal
quarter end date to exceed 2.75: 1.00:



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          (b) Consolidated Interest Coverage. Permit, on the last day of any fiscal quarter
beginning with the first fiscal quarter end date following the Closing Date, the Interest Coverage
Ratio for the four consecutive fiscal quarters of the Company ending with such fiscal quarter end
date to be less than 3.00: 1.00.



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



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



          (b) intercompany Indebtedness incurred pursuant to any Investment permitted by Section
7.7(f);



          (c) unsecured Guarantee Obligations incurred in the ordinary course of business or with
respect to Indebtedness permitted pursuant to this Agreement;



          (d) Indebtedness outstanding on the Closing Date and listed on Schedule 7.2(d);



          (e) Indebtedness (including, without limitation, Capital Lease Obligations) secured by
Liens permitted by Section 7.3(g) in an aggregate principal amount not to exceed $250,000,000 at
any one time outstanding;



          (f) additional Indebtedness of the Company or any of its Subsidiaries in an aggregate
principal amount not to exceed 7.5% of Consolidated Assets at any one time outstanding;



          (g) Indebtedness of the Company or any of its Subsidiaries in respect of workers’
compensation claims, self-insurance obligations, customs, performance, bid and surety bonds and
completion guaranties, in each case in the ordinary course of business;



          (h) Indebtedness of the Company or any of its Subsidiaries arising from the honoring by a
bank or other financial institution of a check, draft or similar instrument inadvertently drawn by
the Company or such Subsidiary in the ordinary course of business against insufficient funds, so
long as such Indebtedness is repaid within five Business Days;



          (i) letters of credit issued for the account of any Group Member, so long as the sum of
(i) the aggregate undrawn face amount thereof, (ii) any unreimbursed obligations in respect thereof
and (iii) the aggregate amount of pledges and deposits made pursuant to Section 7.3(t) below does
not exceed the LC Basket Limit at any time;



          (j) obligations of Chinese Subsidiaries in respect of Chinese Acceptance Notes in the
ordinary course of business;



          (k) Indebtedness of a joint venture (including a joint venture which is treated as a
Subsidiary as a result of Accounting Standards Codification 810 (Topic 810, “Consolidation”) (or
any other Accounting Standards Codification having a similar result or effect)) as long as such
Indebtedness is non-recourse to the Company or any other Subsidiary of the Company (other than a
Subsidiary the sole assets of which are the equity interests in one or more joint ventures);
provided that notwithstanding the foregoing joint ventures may create, incur or assume
Indebtedness with recourse to the Company or any other Subsidiary of the Company not to exceed
$250,000,000 in an aggregate principal amount at any time;



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          (l) Indebtedness incurred by any Group Member pursuant to working capital lines of credit
or any overdraft line or other cash management system in an aggregate outstanding principal amount
for all such Group Members at the close of business on any day not to exceed $150,000,000;



          (m) Indebtedness of the Company consisting of pari passu bonds, pari passu term loans,
second lien bonds and second lien term loans of the Company (which may be guaranteed by the
Guarantors) containing then current market terms and conditions (but which terms and conditions
shall not expressly restrict the ability of the Loan Parties to perform their obligations under the
Loan Documents or the ability of the Borrowers to repay the Loans); provided that (i)
immediately after giving effect to the incurrence of any such Indebtedness and the use of proceeds
thereof the Consolidated Senior Secured Leverage Ratio (calculated on a pro forma basis for the
period of four consecutive fiscal quarters most recently ended for which financial statements have
been delivered) is less than 2.00:1.00, (ii) in the case of term loans, any negative or financial
covenants applicable to such term loans that are more restrictive than those contained in this
Agreement shall be deemed to be incorporated in this Agreement, mutatis mutandis,
except to the extent they do not by their nature apply or relate to any previously existing
Facility and (iii) the final scheduled maturity date of such Indebtedness is no earlier than the
Revolving Termination Date and the weighted average life to maturity of such Indebtedness is equal
to or longer than the remaining average weighted life of the Revolving Facility (other than for
nominal amortization of 1% or less of the principal amount of such Indebtedness per year);



          (n) Indebtedness under tax-favored or government-sponsored financing transactions;
provided that (i) the terms of such transactions and the Group Members party thereto have
been approved by the Administrative Agent, (ii) such Indebtedness is not senior in right of payment
to the Obligations, (iii) any Lien on Collateral arising pursuant to such transactions is
subordinated to the Liens on the Collateral securing the Obligations and (iv) the aggregate
principal amount of such Indebtedness shall not exceed $75,000,000 at any time;



          (o) Indebtedness incurred by any Group Member in order to finance Permitted Acquisitions;



          (p) Seller Debt and Earn-outs incurred in connection with Permitted Acquisitions;
provided, that such Seller Debt or Earn-outs in excess of $50 million shall be on terms and
conditions reasonably satisfactory to the Administrative Agent at the time they are incurred;



          (q) Indebtedness of the Company or any of its Subsidiaries acquired pursuant to a
Permitted Acquisition (or Indebtedness assumed at the time of a Permitted Acquisition of an asset
securing such Indebtedness) in an aggregate principal amount not to exceed $75,000,000;
provided that such Indebtedness was not incurred in connection with, or in anticipation or
contemplation of, such Permitted Acquisition;



          (r) contingent obligations with respect to customary indemnification obligations in favor
of sellers in connection with Acquisitions permitted under Section 7.7 and purchasers in connection
with Dispositions permitted under Section 7.5;



          (s) provided that no Event of Default shall have occurred and be continuing or
would occur as a consequence thereof, Indebtedness which serves to refund, replace, extend
repurchase, redeem or refinance any Indebtedness permitted under paragraphs (d), (e), (f), (m),
(o), (p), (q) or (t) of this Section, or any Indebtedness issued to so refund, replace, extend,
repurchase or refinance such Indebtedness, including, in each case, additional Indebtedness
incurred to pay premiums (including tender premiums), defeasance costs and fees and expenses in
connection therewith (collectively, the “Permitted Refinancing Indebtedness”) at or prior
to its respective maturity; provided, however, that:



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     (i) the weighted average life to maturity of such Permitted Refinancing
Indebtedness shall not be shorter than the weighted average life to maturity of such
refinanced Indebtedness at the time of such refunding or refinancing;




     (ii) to the extent such Permitted Refinancing Indebtedness refinances Indebtedness
subordinated or pari passu to the Obligations, such Permitted Refinancing Indebtedness is
subordinated or pari passu to the Obligations at least to the same extent as the
Indebtedness being refunded or refinanced;




     (iii) such Permitted Refinancing Indebtedness shall not be in a principal amount in
excess of the principal amount of, premium, if any, accrued interest on, and related fees
and expenses of, the Indebtedness being refunded, replaced, extended, repurchased, redeemed
or refinanced (including any premium, expenses, costs and fees incurred in connection with
such refund, replacement or refinancing);




     (iv) the obligors in respect of such Permitted Refinancing Indebtedness (including
in their capacities as primary obligor and guarantor) are the same as for the Indebtedness
being refinanced; and




     (v) any Liens securing such Permitted Refinancing Indebtedness are not extended to
any property which does not secure the Indebtedness being refinanced and, if the Liens
securing the Indebtedness being refinanced are subject to intercreditor arrangements with
the Lenders, any Liens securing such Permitted Refinancing Indebtedness are subject to
intercreditor arrangements at least as favorable to the Administrative Agent and the Lenders
as the intercreditor arrangements applicable to the Indebtedness being refinanced; and



          (t) unsecured Indebtedness of the Company and unsecured Guarantee Obligations of any
Guarantor in respect of such unsecured Indebtedness; provided that immediately after giving
effect to the incurrence of any such Indebtedness and the use of proceeds thereof the Company is in
compliance with Section 7.1 (calculated on a pro forma basis for the period of four consecutive
fiscal quarters most recently ended for which financial statements have been delivered).



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



          (a) Liens for Taxes not yet due or that are being contested in good faith by appropriate
proceedings, provided that adequate reserves with respect thereto (if required by GAAP) are
maintained on the books of the Company or its Subsidiaries, as the case may be, in conformity with
GAAP (or, in the case of Foreign Subsidiaries, generally accepted accounting principles in effect
from time to time in their respective jurisdiction of organization);



          (b) landlord’s carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s,
supplier, construction or other like Liens in the ordinary course of business that are not overdue
for a period of more than 45 days or that are being bonded or contested in good faith by
appropriate proceedings;



          (c) (i) pledges or deposits made in connection with workers’ compensation, unemployment
insurance and other social security legislation, and (ii) Liens (A) of a collecting bank arising in
the ordinary course of business under Section 4-210 of the Uniform Commercial Code in effect in the
relevant jurisdiction covering only the items being collected upon or (B) in favor of a banking
institution or financial intermediary, encumbering amounts credited to deposit or securities
accounts



61









 




(including the right of set-off) arising in the ordinary course of business in connection
with the maintenance of such accounts;




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



          (e) zoning restrictions, survey exceptions and such matters as an accurate survey would
disclose, mortgage rights, easements, rights-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business that, in the aggregate, are not substantial in amount
and that do not in any case materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the Company or any of its
Subsidiaries;



          (f) Liens in existence on the Closing Date and listed on Schedule 7.3(f) and extensions,
renewals and replacements of any such Liens so long as the principal amount of Indebtedness or
other obligations secured thereby is not increased and so long as such Liens are not extended to
any other property of the Company or any of its Subsidiaries;



          (g) Liens securing Indebtedness of the Company or any other Subsidiary incurred pursuant
to Section 7.2(e) to finance the acquisition of fixed or capital assets; provided that (i)
such Liens shall be created within 90 days of the acquisition of such fixed or capital assets, (ii)
such Liens do not at any time encumber any property other than the property financed by such
Indebtedness and proceeds thereof and (iii) the amount of Indebtedness secured thereby is not
increased and extensions, renewals and replacements of any such Liens so long as the principal
amount of Indebtedness or other obligations secured thereby is not increased and so long as such
Liens are not extended to any other property of the Company or any of its Subsidiaries;



          (h) Liens created pursuant to the Loan Documents;



          (i) any interest or title of a lessor under any lease entered into by the Company or any
other Subsidiary in the ordinary course of its business and covering only the assets so leased;



          (j) Liens with respect of leases, licenses, sublicenses or subleases granted to others not
interfering in any material respect with the businesses of the Company or any of its Subsidiaries;



          (k) Liens with respect to operating leases not prohibited under this Agreement and entered
into in the ordinary course of business;



          (l) Liens not otherwise permitted by this Section so long as the aggregate outstanding
principal amount of the obligations secured thereby does not exceed (as to the Company and all
Subsidiaries) 7.5% of Consolidated Assets at any one time;



          (m) Liens on the assets of Foreign Subsidiaries securing obligations of such Persons that
are not prohibited by Section 7.2 so long as the aggregate outstanding principal amount of the
obligations for borrowed money secured thereby does not exceed (as to all Foreign Subsidiaries)
$75,000,000 at any one time;



          (n) receipt of progress payments and advances from customers in the ordinary course of
business to the extent same creates a Lien on the related inventory and proceeds thereof;



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          (o) Liens on the assets of joint ventures and their Subsidiaries securing obligations of
such Persons that are not prohibited by Section 7.2 so long as such Liens do not encumber any
assets or property of the Company or its other Subsidiaries;



          (p) attachment, judgment or other similar Liens securing judgments or decrees not
constituting an Event of Default under Section 8.1(h) or securing appeal or other surety bonds
related to such judgments or decrees;



          (q) Liens securing obligations (other than obligations representing Indebtedness for
borrowed money) under operating, reciprocal easement or similar agreements entered into in the
ordinary course of business;



          (r) statutory Liens and rights of offset arising in the ordinary course of business of the
Company and its Subsidiaries;



          (s) Liens on assets of Foreign Subsidiaries securing Indebtedness of a Foreign Subsidiary
permitted by Sections 7.2(f) and 7.2(k) and securing other obligations under the agreements
governing or relating to such Indebtedness; so long as such Liens do not encumber the Capital Stock
of the Company or any of its Subsidiaries;



          (t) pledges of cash or Cash Equivalents or deposits of cash or Cash Equivalents made to
support any obligations of the Group Members (including cash collateral to secure obligations under
letters of credit permitted pursuant to Section 7.2(i)) so long as (without duplication) the sum of
(i) the aggregate undrawn face amount of letters of credit permitted pursuant to Section 7.2(i)
above, (ii) any unreimbursed obligations in respect of letters of credit permitted pursuant to
Section 7.2(i) above and (iii) the aggregate amount of such pledges and deposits does not exceed
the limit set forth in Section 7.2(i);



          (u) Liens arising in connection with financing transactions permitted by Section 7.2(n),
provided that such liens do not at any time encumber any Collateral unless approved by the
Administrative Agent and such Liens otherwise comply with Section 7.2(n);



          (v) Liens on the Collateral securing Indebtedness (and interest and related obligations)
permitted under clause (m) of Section 7.2 as long as such Liens are subject to an intercreditor
agreement reasonably satisfactory to the Administrative Agent;



          (w) Liens on property or assets acquired pursuant to a Permitted Acquisition, or on
property or assets of a Subsidiary of the Company in existence at the time such Subsidiary is
acquired pursuant to a Permitted Acquisition; provided that (i) any Indebtedness that is
secured by such Liens is permitted to exist under Section 7.2(q), and (ii) such Liens are not
incurred in connection with, or in contemplation or anticipation of, such Permitted Acquisition and
do not attach to any other asset of the Company or any of its Subsidiaries and extensions, renewals
and replacements of any such Liens so long as the principal amount of Indebtedness or other
obligations secured thereby is not increased and so long as such Liens are not extended to any
other property of the Company or any of its Subsidiaries;



          (x) Liens resulting from cash pooling and cash management arrangements entered into in the
ordinary course of business;



          (y) Liens on receivables and customary related assets subject to a Receivable Financing
Transaction; and



63









 





          (z) the exchange or transfer within China of Chinese Acceptance Notes by Chinese
Subsidiaries of the Company in the ordinary course of business.



          7.4. Fundamental Changes. Enter into any merger, consolidation or amalgamation,
or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or Dispose of
all or substantially all of its property or business, except that:



          (a) any Subsidiary of the Company may be merged, consolidated with or into or transferred
to the Company (provided that the Company shall be the continuing or surviving corporation)
or with, into or to any Guarantor (provided that the Guarantor shall be the continuing or
surviving corporation or simultaneously therewith, the continuing corporation shall become a
Guarantor);



          (b) any Subsidiary of the Company that is not a Loan Party may be merged, consolidated,
amalgamated, liquidated, wound-up or dissolved or all or substantially all of its property or
business Disposed of with, into or to a Subsidiary that is not a Loan Party;



          (c) any Subsidiary of the Company may Dispose of any or all of its assets to the Company
or any Guarantor (upon voluntary liquidation or otherwise);



          (d) any Foreign Subsidiary may be merged, consolidated, amalgamated, liquidated, wound up
or dissolved or all or substantially all its property or business disposed of with, into or to a
Foreign Subsidiary Borrower;



          (e) any Disposition otherwise permitted pursuant to Section 7.5 may be completed; and



          (f) any Permitted Acquisition otherwise permitted pursuant to Section 7.7 may be
completed.



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



          (a) the Disposition of obsolete or worn out property or property no longer useful in the
business of the Company and its Subsidiaries, in each case in the ordinary course of business;



          (b) the Disposition of inventory or cash or Cash Equivalents in the ordinary course of
business;



          (c) Dispositions permitted by Section 7.4, Restricted Payments permitted by Section 7.6
and Investments permitted by Section 7.7;



          (d) the Disposition or issuance of any Subsidiary’s Capital Stock to the Company or any
Guarantor;



          (e) the licensing and cross-licensing arrangements of technology or other intellectual
property in the ordinary course of business;



          (f) the Disposition of any property or assets, or the issuance of any Subsidiaries’
Capital Stock, (i) to any Domestic Loan Party and (ii) by any Subsidiary that is not a Guarantor to
any other Subsidiary that is not a Guarantor;



64









 





          (g) transfers of property as a result of any Recovery Event;



          (h) leases, occupancy agreements and subleases of property in the ordinary course of
business;



          (i) the Disposition of receivables and customary related assets (i) in connection with a
Receivables Financing Transaction or (ii) pursuant to factoring programs on customary market terms
for such transactions and with respect to receivables of, and generated by, Foreign Subsidiaries;



          (j) the exchange or transfer within China of Chinese Acceptance Notes by Chinese
Subsidiaries of the Company;



          (k) the Disposition of other property (other than receivables and customary related
assets) having a net book value not to exceed 10% of Consolidated Assets in the aggregate during
any fiscal year of the Company; provided that if the Net Cash Proceeds thereof are
reinvested in assets useful in the business of the Company and its Subsidiaries within 360 days of
receipt thereof, such Disposition shall be disregarded for purposes of calculating the aggregate
net book value of assets Disposed of pursuant to this Section 7.5(k) from and after the date of
such reinvestment; and



          (l) the Disposition of Investments in IAC.



          7.6. Restricted Payments. (A) Declare or pay any dividend (other than dividends
payable solely in Qualified Stock of the Person making such dividend) on, or make any payment on
account of, or set apart assets for a sinking or other analogous fund for, the purchase,
redemption, defeasance, retirement or other acquisition of, any Capital Stock of the Company or any
Subsidiary of the Company, whether now or hereafter outstanding, or make any other distribution in
respect thereof, either directly or indirectly, whether in cash or property or in obligations of
the Company or any Subsidiary of the Company; (B) make or offer to make any payment, prepayment,
repurchase or redemption of or otherwise defease or segregate funds with respect to the principal
of any Junior Indebtedness (other than (i) scheduled payments of principal, (ii) customary
mandatory prepayments, mandatory repurchases and mandatory redemptions, (iii) refinancing thereof
from the Net Cash Proceeds of Indebtedness permitted by Section 7.2 or Capital Stock of the Company
other than Disqualified Capital Stock) and (iv) Indebtedness of a class, tranche or series having a
principal amount of $25,000,000 or less; or (C) make any Restricted Investment ((A), (B) and (C),
collectively, “Restricted Payments”), except that:



          (a) any Subsidiary may make Restricted Payments to any Loan Party;



          (b) any Subsidiary may make Restricted Payments to the Group Member that is its parent
company so long as, in the case of any Restricted Payment made by a Loan Party, such parent company
is also a Loan Party;



          (c) any Subsidiary may make Restricted Payments with respect to the Capital Stock of such
Subsidiary, provided that each Group Member shareholder of such Subsidiary receives at
least its ratable share thereof;



          (d) the Company may pay cash in lieu of fractional shares in connection with any
conversion of Series A Preferred Stock or warrants with respect to Capital Stock of the Company in
accordance with their terms, provided that the aggregate amount of cash payments under this
clause (iv) shall not exceed $100,000 in any fiscal quarter of the Company;



65









 





          (e) as long as no Default or Event of Default exists immediately before or after giving
effect thereto, the Company may purchase or redeem its common stock pursuant to the existing
three-year common stock buyback authorization as in effect on the Closing Date;



          (f) as long as no Default or Event of Default exists immediately before or after giving
effect thereto, the Company may pay dividends on its Capital Stock in an aggregate amount not to
exceed $65,000,000 in any fiscal year;



          (g) as long as no Default or Event of Default exists immediately before or after giving
effect thereto, the Company may make Restricted Payments in an aggregate amount not to exceed the
sum of:




     (i) $250,000,000, plus




     (ii) 50% of the Consolidated Net Income of the Company on a cumulative basis during
the period (taken as one accounting period) from and including January 1, 2011 and ending on
the last day of the Company’s fiscal quarter immediately preceding the date of such
Restricted Payments (or in the event such Consolidated Net Income shall be a deficit, minus
100% of such deficit), plus




     (iii) 100% of the aggregate Net Cash Proceeds received by the Company from (1) any
capital contribution to the Company after January 1, 2011 or any issue or sale after January
1, 2011 of Qualified Stock of the Company (other than (x) to any Subsidiary of the Company)
and (2) the issue or sale after January 1, 2011 of any Indebtedness or other securities of
the Company convertible into or exercisable for Qualified Stock of the Company that have
been so converted or exercised, as the case may be, plus




     (iv) the amount of distributions, dividends or Net Cash Proceeds received with
respect to the Capital Stock of IAC;



          (h) as long as no Default or Event of Default exists immediately before or after giving
effect thereto, the Company may make Restricted Payments of the type described in clause (B) set
forth in the introductory paragraph of this Section 7.6 in an aggregate amount not to exceed
$200,000,000; and



          (i) as long as immediately before or after giving effect thereto no Default or Event of
Default exists and the Consolidated Total Leverage Ratio (with Consolidated Total Debt being
calculated without giving effect to netting of any cash or Cash Equivalents), recomputed on a
pro forma basis to give effect to such Restricted Payments for the most recently
ended period of four consecutive fiscal quarters of the Company for which financial statements are
available, is less than 1.5 to 1.0, the Company may make Restricted Payments.



          7.7. Investments. Make any Investment except:



          (a) extensions of trade credit in the ordinary course of business;



          (b) Investments in cash or Cash Equivalents;



          (c) Guarantee Obligations permitted by Section 7.2;



66









 





          (d) loans and advances to employees or directors of any Group Member in the ordinary
course of business (including for travel, entertainment and relocation expenses);



          (e) Investments in the business of the Company and its Subsidiaries made by the Company or
any of its Subsidiaries with the proceeds of any Reinvestment Deferred Amount if such Investments
are made within 360 days of receipt thereof;



          (f) intercompany Investments by (i) any Group Member in the Company or any Person that,
prior to such investment, is a Guarantor, (ii) by any Subsidiary that is not a Guarantor in any
other Subsidiary that is not a Guarantor, (iii) by any Group Member in a Foreign Subsidiary to fund
in the ordinary course of business foreign operations and (iv) by any Domestic Loan Party in any
Subsidiary that is not a Domestic Loan Party, provided that the aggregate amount of
Investments under clause (iv) in Subsidiaries that are organized under the laws of a Specified
Jurisdiction shall not exceed $300,000,000 at any one time outstanding in the aggregate plus (as
provided in the definition of “Investments”), without duplication, all cash returns of principal or
capital, cash dividends and other cash returns received by the any Domestic Loan Party after the
date hereof from any Subsidiary that is organized under the laws of a Specified Jurisdiction,
provided further that the contribution of the Capital Stock of a Foreign Subsidiary
to a Foreign Subsidiary shall not be deemed to be an Investment by a Loan Party in a Subsidiary
that is not a Loan Party;



          (g) Investments consisting of Indebtedness permitted by Section 7.2 or arising from the
forgiveness of Indebtedness permitted by Section 7.2(b);



          (h) prepaid expenses and lease, utility, workers, compensation, performance and other
similar deposits made in the ordinary course of business;



          (i) Investments (including debt obligations) received in the ordinary course of business
by the Company or any Subsidiary in connection with the bankruptcy or reorganization of suppliers
and customers and in settlement or delinquent obligations of, and other disputes with, customers
and suppliers arising out of the ordinary course of business;



          (j) Investments in existence on the Closing Date;



          (k) Investments in joint ventures (including a joint venture which is treated as a
Subsidiary as a result of Accounting Standards Codification 810 (Topic 810, “Consolidation”) (or
any other Accounting Standards Codification having a similar result or effect)) and non-wholly
owned Subsidiaries shall not exceed 7.5% of Consolidated Assets at any time, plus (as provided in
the definition of “Investments”), without duplication, all cash returns of principal or capital,
cash dividends and other cash returns received by any Loan Party after the date hereof from such
Investments;



          (l) the Disposition or contribution by the Company and certain of its domestic
Subsidiaries of certain metals and electronics assets to its existing Subsidiaries consistent with
the restructuring plan including in the financial projections; and



          (m) Swap Agreements permitted by Section 7.9;



          (n) Investments in Special Purpose Subsidiaries arising or made under Receivable Financing
Transactions;



          (o) Permitted Acquisitions;



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          (p) in addition to Investments otherwise expressly permitted by this Section, Investments
by the Company or any of its Subsidiaries in an aggregate amount not to exceed $200,000,000 at any
one time outstanding, plus (as provided in the definition of “Investments”), without duplication,
all cash returns of principal or capital, cash dividends and other cash returns received by any
Loan Party after the date hereof from such Investments; and



          (q) Restricted Investments permitted by Section 7.6.



          7.8. Transactions with Affiliates. Enter into any transaction, including any
purchase, sale, lease or exchange of property, the rendering of any service or the payment of any
management, advisory or similar fees, with any Affiliate (other than transactions among Group
Members) unless such transaction (a) is otherwise permitted under this Agreement, (b) is in the
ordinary course of business of the relevant Group’s Member, upon fair and reasonable terms
substantially as favorable to the relevant Group Member than would be obtainable in a comparable
arm’s length transaction with a Person that is not an Affiliate; or (c) involves any Lender or
Agent (or their Affiliates) in its capacity as Lender or Agent under this Agreement.



          7.9. Swap Agreements. Enter into any Swap Agreement except (a) Swap Agreements
entered into to hedge or mitigate risks to which any Group Member has actual exposure and (b) Swap
Agreements entered into in order to effectively cap, collar or exchange interest rates (from fixed
to floating rates, from one floating rate to another floating rate or otherwise) with respect to
any interest-bearing liability or investments of any Group Member, provided that in each
case such agreements are not entered into for speculative purposes.



          7.10. Changes in Fiscal Periods. Permit the fiscal year of the Company to end on
a day other than December 31.



          7.11. Negative Pledge Clauses. Enter into or permit to exist or become effective
any agreement that prohibits or limits (other than a dollar limit, provided that such
dollar limit is sufficient in amount to allow at all times the Liens to secure the obligations
under the Loan Documents in full) the ability of the Company or any Domestic Subsidiary to create,
incur, assume or suffer to exist any Lien upon any of its property or revenues, whether now owned
or hereafter acquired, to secure its obligations under the Loan Documents to which it is a party
other than (a) this Agreement and the other Loan Documents, (b) any agreements governing any
purchase money Liens or Capital Lease Obligations otherwise permitted hereby or any other secured
obligation permitted by Section 7.3(c), (d), (g), (t), (w) or (y) (in which case, any prohibition
or limitation shall only be effective against (x) in the case of purchase money Liens or Capital
Lease Obligations, the assets financed thereby and proceeds thereof and (y) in the case of other
secured obligations, the specific assets subject to the Lien securing such obligation), (c) (i) any
Unsecured Note Indenture or any agreements governing Indebtedness permitted by Section 7.2(m) and
any Guarantee Obligations with respect thereto or any Permitted Refinancing Indebtedness in respect
thereof (provided that the prohibition or limitation contained in any agreement referred to
in this clause (c)(i) is no less favorable than that which exists in this Agreement) and (ii) any
agreement governing any Indebtedness existing as of the Closing Date and any agreement governing
any Permitted Refinancing Indebtedness of such Indebtedness existing as of the Closing Date
(provided that the prohibition or limitation contained therein is no less favorable to the
Lenders than that which exists in the agreement governing such Indebtedness as of the Closing
Date), (d) customary provisions in joint venture agreements and similar agreements and any
agreement with respect to Indebtedness primarily incurred to finance the acquisition of an interest
in a joint venture that restrict the transfer or encumbrance of assets of, or equity interests in,
the applicable joint ventures, (e) customary provisions in any agreements governing any Receivable
Financing Transaction (in which case, any prohibition or limitation shall only be effective against
the assets conveyed thereunder), (f) any agreement governing letters of



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credit issued in accordance
with Section 7.2(i) or any Specified Swap Agreement or Specified Cash Management Agreement
containing provisions not more restrictive that the provisions of this Agreement, (g) licenses or
sublicenses by the Company and its Subsidiaries of intellectual property in the ordinary course of
business (in which case, any prohibition or limitation shall only be effective against the
intellectual property subject thereto) and (h) customary restrictions in any agreements governing
Indebtedness of a joint venture which prohibit the pledge of the assets of, or equity interests in,
such joint venture.




          7.12. Clauses Restricting Subsidiary Distributions. Enter into or permit to exist
or become effective any consensual encumbrance or restriction on the ability of any Domestic
Subsidiary of the Company to (a) make Restricted Payments in respect of any Capital Stock of such
Subsidiary held by, or pay any Indebtedness owed to, the Company or any other Loan Party, (b) make
loans or advances to, or other Investments in, the Company or any other Loan Party or (c) transfer
any of its assets to the Company or any other Loan Party, except for such encumbrances or
restrictions existing under or by reason of (i) any restrictions existing under the Loan Documents,
any Unsecured Note Indenture, any agreements governing Indebtedness permitted by Section 7.2(m) and
any agreement governing Permitted Refinancing Indebtedness in respect thereof (provided
that the prohibition or limitation contained therein is no less favorable to the Lenders than that
which exists in this Agreement) and any agreement governing any Indebtedness existing as of the
Closing Date and any agreement governing any Permitted Refinancing Indebtedness of such
Indebtedness existing as of the Closing Date (provided that the prohibition or limitation
contained therein is no less favorable to the Lenders than that which exists in the agreement
governing such Indebtedness as of the Closing Date), (ii) customary provisions in joint venture
agreements and similar agreements that restrict the transfer of equity interests in joint ventures
(in which case such restrictions shall relate only to assets of, or equity interests in, such joint
venture or any holding company which may hold the Capital Stock of such joint venture), (iii) any
restrictions regarding licenses or sublicenses by the Company and its Subsidiaries of intellectual
property in the ordinary course of business (in which case such restriction shall relate only to
such intellectual property); (iv) customary restrictions and conditions contained in agreements
relating to the sale of all or a substantial part of the capital stock or assets of any Subsidiary
pending such sale, provided such restrictions and conditions apply only to the Subsidiary
to be sold and such sale is permitted hereunder, (v) with respect to restrictions described in
clause (a) of this Section 7.12, restrictions contained in agreements governing Indebtedness
permitted by Section 7.2(c) hereof; and (vi) with respect to restrictions described in clause (c)
of this Section 7.12, restrictions contained in agreements governing Indebtedness permitted by
Section 7.2(e) (as long as such restrictions apply to the property financed thereby) and (k) hereof
(as long as such restrictions apply only to the assets of the applicable joint venture).



          7.13. Lines of Business. Enter into any business, either directly or through any
Subsidiary, except for those businesses in which the Company and its Subsidiaries are engaged on
the date of this Agreement or that are reasonably related thereto.



          7.14. Use of Proceeds. Use the proceeds of the Loans for purposes other than
those described in Section 4.15.



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SECTION 8. EVENTS OF DEFAULT




          8.1. Events of Default. If any of the following events shall occur and be
continuing on or after the occurrence of the Closing Date:



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



          (b) any representation or warranty made or deemed made by any Loan Party herein or in any
other Loan Document or that is contained in any certificate, document or financial or other
statement furnished by it at any time under or in connection with this Agreement or any such other
Loan
Document shall prove to have been inaccurate in any material respect on or as of the date made
or deemed made; or



          (c) any Loan Party shall default in the observance or performance of any agreement
contained in clause (i) of Section 6.4(a) (with respect to the Borrowers only), Section 6.7(a) or
Section 7 (other than Sections 7.11 and 7.12) of this Agreement or Section 5.5 of the Guarantee and
Collateral Agreement; or



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



          (e) any Group Member (other than an Immaterial Subsidiary) shall (i) default in making
any payment of any principal of any Indebtedness (including any Guarantee Obligation, but excluding
the Loans or any intercompany Indebtedness) on the scheduled or original due date with respect
thereto; or (ii) default in making any payment of any interest on any such Indebtedness beyond the
period of grace, if any, provided in the instrument or agreement under which such Indebtedness was
created; or (iii) default in the observance or performance of any other agreement or condition
relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing
or relating thereto, or any other event shall occur or condition exist, the effect of which default
or other event or condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause, with the
giving of notice if required, such Indebtedness to become due prior to its stated maturity or (in
the case of any such Indebtedness constituting a Guarantee Obligation) to become payable;
provided, that a default, event or condition described in clause (i), (ii) or (iii) of this
paragraph (e) shall not at any time constitute an Event of Default unless, at such time, one or
more defaults, events or conditions of the type described in clauses (i), (ii) and (iii) of this
paragraph (e) shall have occurred and be continuing with respect to Indebtedness the outstanding
principal amount (or the termination value, as applicable) of which exceeds in the aggregate
$50,000,000; or



          (f) (i) the Borrower or any of its Subsidiaries (other than 4% Subsidiaries) shall commence
any case, proceeding or other action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors,
seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian, conservator or other similar official for it or for
all or any substantial part of its assets; or (ii) there shall be commenced against the Company or
any of its Subsidiaries (other than 4% Subsidiaries) any case, proceeding or other action of a
nature referred to in clause (i) above that (A) results in the entry of an order for relief or any
such adjudication or appointment or (B) remains undismissed or undischarged for a period of 60
days; or (iii) there shall be commenced against the Company or any of its Subsidiaries (other than
4% Subsidiaries) any case, proceeding or other action seeking issuance of a warrant of attachment,




70












 




execution, distraint or similar process against all or any substantial part of its assets
that results in the entry of an order for any such relief that shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) the
Board of Directors of the Company shall authorize any action set forth in clause (i) above; or (v)
the Company or any of its Subsidiaries (other than 4% Subsidiaries) shall generally not, or shall
be unable to, or shall admit in writing its inability to, pay its debts as they become due; or (vi)
or the Company or any of its Subsidiaries (other than 4% Subsidiaries) shall make a general
assignment for the benefit of its creditors; provided that all 4% Subsidiaries that are
subject to any of the proceedings or actions described in clauses (i) through (vi) of this
paragraph (f) shall not at any time contribute in the aggregate more than 5% of Consolidated Assets
or more than 5% of Consolidated Revenues; or




          (g) (i) an ERISA Event shall have occurred; (ii) a trustee shall be appointed by a United
States district court to administer any Single Employer Plan, (iii) the PBGC shall institute
proceedings to terminate any Single Employer Plan(s); (iv) any Loan Party or any of their
respective ERISA Affiliates shall have been notified by the sponsor of a Multiemployer Plan that it
has incurred or will be assessed Withdrawal Liability to such Multiemployer Plan and such entity
does not have reasonable grounds for contesting such Withdrawal Liability or is not contesting such
Withdrawal Liability in a timely and appropriate manner; or (v) any other event or condition shall
occur or exist with respect to a Plan; and in each case in clauses (i) through (v) above, such
event or condition, together with all other such events or conditions, if any, would reasonably be
expected to have a Material Adverse Effect; or



          (h) one or more judgments or decrees shall be entered against any Group Member involving in
the aggregate a liability (excluding any amounts paid or covered by insurance as to which the
relevant insurance company has not denied coverage) of $50,000,000 or more, and all such judgments
or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days
from the entry thereof; or



          (i) any of the Loan Documents shall cease, for any reason, to be in full force and effect, or
any Loan Party or any Affiliate of any Loan Party shall so assert, or Liens created by the Loan
Documents with respect to a material portion of the Collateral shall cease to be enforceable and of
the same effect and priority purported to be created thereby other than by reason of the release
thereof in accordance with the terms of the Loan Documents; or



          (j) a Change of Control shall have occurred;


then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or
(ii) of paragraph (f) above with respect to the Company, automatically the Commitments shall
immediately terminate and the Loans (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Loan Documents (including, without limitation, all amounts of
Reimbursement Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) shall immediately become due and
payable, and (B) if such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Required Lenders, the Administrative Agent may,
or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the
Company declare the Revolving Commitments to be terminated forthwith, whereupon the Revolving
Commitments shall immediately terminate; and (ii) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice to the Company, declare the Loans (with accrued interest thereon) and all other
amounts owing under this Agreement and the other Loan Documents (including all amounts of
Reimbursement Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) to be due and






71









 







payable forthwith, whereupon the same shall immediately become due and payable. With respect to
all Letters of Credit with respect to which presentment for honor shall not have occurred at the
time of an acceleration pursuant to this paragraph, the Company shall at such time deposit in a
cash collateral account opened by the Administrative Agent an amount equal to the aggregate then
undrawn and unexpired amount of such Letters of Credit. Amounts held in such cash collateral
account shall be applied by the Administrative Agent to the payment of drafts drawn under such
Letters of Credit, and the unused portion thereof after all such Letters of Credit shall have
expired or been fully drawn upon, if any, shall be applied to repay other obligations of the
Borrowers hereunder and under the other Loan Documents. After all such Letters of Credit shall
have expired or been fully drawn upon, all Reimbursement Obligations shall have been satisfied and
all other obligations of the Borrowers hereunder and under the other Loan Documents shall have been
paid in full, the balance, if any, in such cash collateral account shall be returned to the Company
(or such other Person as may be lawfully entitled thereto). Except as expressly provided above in
this Section, presentment, demand, protest and all other notices of any kind are hereby expressly
waived by the Borrowers.




SECTION 9. THE AGENTS




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



          9.2. Delegation of Duties. Each of the Administrative Agent and the Collateral Agent
may execute any of its duties under this Agreement and the other Loan Documents by or through
agents or attorneys in fact and shall be entitled to advice of counsel concerning all matters
pertaining to such duties. Neither Agent shall be responsible for the negligence or misconduct of
any agents or attorneys-in fact selected by it with reasonable care. The exculpatory provisions of
this Agreement and of the other Loan Documents shall apply to any such agent or attorney-in-fact
and to their Related Parties (as defined below).



          9.3. Exculpatory Provisions. Neither any Agent nor any of its officers, directors,
employees, agents, advisors, attorneys in fact, controlling persons or affiliates (collectively,
the “Related Parties”) shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any other Loan Document
(except to the extent that any of the foregoing are found by a final and nonappealable decision of
a court of competent jurisdiction to have resulted from its or such Person’s own gross negligence
or willful misconduct) or (ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Loan Party or any officer thereof contained
in this Agreement or any other Loan Document or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agents under or in connection with,
this Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or for any failure of
any Loan Party a party thereto to perform its obligations hereunder or thereunder. The Agents



72









 




shall not be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions of, this Agreement
or any other Loan Document, or to inspect the properties, books or records of any Loan Party.




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



          9.5. Notice of Default. No Agent shall be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default unless such Agent has received notice from a Lender
or any Borrower referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a “notice of default”. In the event that an Agent receives such a
notice, such Agent shall give notice thereof to the Lenders. The Agents shall take such action
with respect to such Default or Event of Default as shall be reasonably directed by the Required
Lenders (or, if so specified by this Agreement, all Lenders or any other instructing group of
Lenders specified by this Agreement); provided that unless and until the Agents shall have
received such directions, the Agents may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of Default as they shall
deem advisable in the best interests of the Lenders.



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



73









 




Lender with any credit or other information concerning the business, operations, property,
condition (financial or otherwise), prospects or creditworthiness of any Loan Party or any
affiliate of a Loan Party that may come into the possession of the Agents or any of its officers,
directors, employees, agents, advisors, attorneys-in-fact or affiliates.




          9.7. Indemnification. The Lenders agree to indemnify each Agent and its Related
Parties (each, an “Agent Indemnitee”) (to the extent not reimbursed by the Borrowers and
without limiting the obligation of the Borrowers to do so), ratably according to their respective
Aggregate Exposure Percentages in effect on the date on which indemnification is sought under this
Section (or, if indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance with such Aggregate
Exposure Percentages immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind (including reasonable attorneys fees and expenses) whatsoever that may at
any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted
against such Agent Indemnitee in any way relating to or arising out of, the Commitments, this
Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein
or therein or the transactions contemplated hereby or thereby or any action taken or omitted by
such Agent Indemnitee under or in connection with any of the foregoing; provided that no
Lender shall be liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a
final and nonappealable decision of a court of competent jurisdiction to have resulted from such
Agent Indemnitee’s gross negligence or willful misconduct. The agreements in this Section shall
survive the payment of the Loans and all other amounts payable hereunder.



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



          9.9. Successor Administrative Agent. The Administrative Agent may resign as
Administrative Agent upon 10 days’ notice to the Lenders and the Company. If the Administrative
Agent shall resign as Administrative Agent under this Agreement and the other Loan Documents, then
the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders,
whereupon such successor agent shall succeed to the rights, powers and duties of the Administrative
Agent, and the term “Administrative Agent” shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent’s rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or any holders of the
Loans. If no successor agent has accepted appointment as Administrative Agent by the date that is
10 days following a retiring Administrative Agent’s notice of resignation, the retiring
Administrative Agent’s resignation shall nevertheless thereupon become effective, and the Lenders
shall assume and perform all of the duties of the Administrative Agent hereunder until such time,
if any, as the Required Lenders appoint a successor agent as provided for above. After any
retiring Administrative Agent’s resignation as Administrative Agent, the provisions of this Section
9 and of Section 10.5 shall continue to inure to its benefit. The Administrative Agent may in its
discretion resign as Collateral Agent at any time it resigns as Administrative Agent.



          9.10. Execution of Loan Documents. The Lenders hereby empower and authorize the
Agents, on behalf of the Lenders, to execute and deliver to the Loan Parties the other Loan
Documents and all related agreements, certificates, documents, or instruments as shall be necessary
or appropriate to



74









 




effect the purposes of the Loan Documents, including, without limitation, any intercreditor
agreement contemplated hereby. Each Lender agrees that any action taken by the Agents or the
Required Lenders (or any other instructing group of Lenders specified by this Agreement) in
accordance with the terms of this Agreement or the other Loan Documents, and the exercise by the
Agents or the Required Lenders (or any other instructing group of Lenders specified by this
Agreement) of their respective powers set forth therein or herein, together with such other powers
that are reasonably incidental thereto, shall be binding upon all of the Lenders.




          9.11. Collateral Agent. (a) The provisions of Section 9 that apply to the
Administrative Agent shall apply, mutatis mutandis, to the Collateral Agent and to any successor
Collateral Agent, as applicable; provided that, notwithstanding anything herein to the
contrary, the Collateral Agent shall have the right to appoint a successor to itself as Collateral
Agent and without the consent of any Lender.



          (b) The Collateral Agent is authorized on behalf of all the Lenders, without the necessity of
any notice to or further consent from the Lenders, from time to time to take any action with
respect to any Collateral or the Loan Documents which may be necessary to perfect and maintain a
perfected security interest in and Liens upon the Collateral granted pursuant to the Loan
Documents. Except for the safe custody of any Collateral in its possession and the accounting for
moneys actually received by it hereunder or under any of the other Loan Documents, the Collateral
Agent shall not have any duty as to any Collateral, as to ascertaining or taking action with
respect to calls, conversions, exchanges, maturities, trades or other matters relative to any
Collateral, whether or not the Collateral Agent is deemed to have knowledge of such matters, or as
to taking of any necessary steps to preserve rights against any parties or any other rights
pertaining to any Collateral (including the filing of UCC Financing and Continuation Statements).
The Collateral Agent shall be deemed to have exercised appropriate and due care in the custody and
preservation of any Collateral in its possession if such Collateral is accorded treatment
substantially equal to that which other collateral agents accord similar property.



          9.12. No Other Duties. None of the Joint Lead Arrangers, the Joint Bookrunners, the
Co-Documentation Agents or the Syndication Agent shall have any duties or responsibilities
hereunder in their capacities as such.



SECTION 10. MISCELLANEOUS




          10.1. Amendments and Waivers. (a) Neither this Agreement, any other Loan Document,
nor any terms hereof or thereof may be amended, supplemented or modified except in accordance with
the provisions of this Section 10.1. The Required Lenders and each Loan Party party to the
relevant Loan Document may, or, with the written consent of the Required Lenders, the
Administrative Agent and each Loan Party party to the relevant Loan Document may, from time to
time, (a) enter into written amendments, supplements or modifications hereto and to the other Loan
Documents for the purpose of adding any provisions to this Agreement or the other Loan Documents or
changing in any manner the rights of the Lenders or of the Loan Parties hereunder or thereunder or
(b) waive, on such terms and conditions as the Required Lenders or the Administrative Agent, as the
case may be, may specify in such instrument, any of the requirements of this Agreement or the other
Loan Documents or any Default or Event of Default and its consequences; provided,
however, that no such waiver and no such amendment, supplement or modification shall (i)
forgive the principal amount or extend the final scheduled date of maturity of any Loan, extend the
scheduled date of any principal amortization payment in respect of any Loan, reduce the stated rate
of any interest or fee payable hereunder (except (x) in connection with the waiver of applicability
of any post-default increase in interest rates (which waiver shall be effective with the consent of
the Required Lenders), (y) in connection with the waiver or



75









 




extension of any mandatory prepayment hereunder, and (z) that any amendment or modification of
defined terms used in the financial covenants in this Agreement shall not constitute a reduction in
the rate of interest or fees for purposes of this clause (i)) or extend the scheduled date of any
payment thereof, or increase the amount or extend the expiration date of any Lender’s Commitment,
in each case without the written consent of each Lender directly affected thereby; (ii) eliminate
or reduce the voting rights of any Lender under this Section 10.1 without the written consent of
such Lender; (iii) reduce any percentage specified in the definition of Required Lenders or consent
to the assignment or transfer by any Borrower of any of its rights and obligations under this
Agreement and the other Loan Documents, in each case without the written consent of all Lenders;
(iv) amend, modify or waive any provision of Section 9 or any other provision of any Loan Document
that affects the Administrative Agent without the written consent of the Administrative Agent; (v)
except as provided herein, release all or substantially all of the Collateral securing the
Obligations or release all or substantially all of the Guarantors from their obligations under the
Guarantee and Collateral Agreement, in each case without the consent of each Lender; amend, modify
or waive any provision of Section 2.2 or 2.3 without the written consent of the Swingline Lender;
(vi) release the Company from all or substantially all of its obligations under the Guarantee and
Collateral Agreement without the written consent of all Lenders or (vii) amend, modify or waive any
provision of Section 3 without the written consent of the Issuing Lender. Any such waiver and any
such amendment, supplement or modification shall apply equally to each of the Lenders and shall be
binding upon the Loan Parties, the Lenders, the Administrative Agent and all future holders of the
Loans. In the case of any waiver, the Loan Parties, the Lenders and the Administrative Agent shall
be restored to their former position and rights hereunder and under the other Loan Documents, and
any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or impair any right
consequent thereon.




          (b) Notwithstanding the foregoing, the Administrative Agent may amend or supplement the Loan
Documents without the consent of any Lender or the Required Lenders (but with the consent of the
Company to the extent required under the Security Documents) to cure any ambiguity, defect or
inconsistency in the Loan Documents.



          (c) Notwithstanding the foregoing, Schedule 1.1C may be amended as follows:




     (i) Schedule 1.1C may be amended, following at least five Business Days prior notice to
the Administrative Agent, to add Wholly Owned Subsidiaries of the Company organized in
jurisdictions reasonably satisfactory to the Administrative Agent as additional Foreign
Subsidiary Borrowers upon (A) execution and delivery by the Company, any such Foreign
Subsidiary Borrower and the Administrative Agent of a Joinder Agreement providing for any
such Subsidiary to become a Foreign Subsidiary Borrower, and (B) delivery to the
Administrative Agent of (I) a Foreign Subsidiary Opinion in respect of such additional
Foreign Subsidiary Borrower (including as to the applicability of any withholding Taxes) in
form and substance reasonably satisfactory to the Administrative Agent, (II) all
documentation and other information required by regulatory authorities under applicable
“know your customer” and anti-money laundering rules and regulations, including the USA
Patriot Act and (III) such other documents with respect thereto as the Administrative Agent
shall reasonably request.




     (ii) Schedule 1.1C may be amended to remove any Subsidiary as a Foreign Subsidiary
Borrower upon (A) execution and delivery by the Company of a written amendment providing for
such amendment and (B) repayment in full of all outstanding Loans of such Foreign Subsidiary
Borrower.



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     (iii) The Administrative Agent agrees to promptly notify the Lenders of any amendment
effected pursuant to this Section 10.1(c) (via IntraLinks or such other communication
permitted under this Agreement).



          (d) The Company shall be permitted to replace any Lender that requests, on behalf of itself or
any Participant with respect to which the applicable Borrower has provided its consent for the
payment of greater amounts pursuant to Section 10.6(c)(ii), any payment under Section 2.15 or 2.16
or that does not consent to any proposed amendment, supplement, modification, consent or waiver of
any provision of this Agreement or any other Loan Document that requires the consent of each of the
Lenders or each of the Lenders affected thereby (so long as the consent of the Required Lenders has
been obtained) or any Lender that becomes a Defaulting Lender, with a replacement financial
institution; provided that (i) such replacement does not conflict with any Requirement of
Law, (ii) the replacement financial institution shall purchase, at par, all Loans and other amounts
owing to such replaced Lender on or prior to the date of replacement, (iii) the Borrower shall be
liable to such replaced Lender under Section 2.17 if any Eurocurrency Loan owing to such replaced
Lender shall be purchased other than on the last day of the Interest Period relating thereto, (iv)
the replacement financial institution shall be reasonably satisfactory to the Administrative Agent,
(v) the replaced Lender shall be obligated to make such replacement in accordance with the
provisions of Section 10.6 (provided that the Company shall be obligated to pay the
processing and recordation fee referred to therein) or in accordance with other procedures
established by the Administrative Agent (which may include a deemed assignment by the replaced
Lender rather than execution and delivery of an Assignment and Assumption) and (vi) any such
replacement shall not be deemed to be a waiver of any rights that the Company, the Administrative
Agent or any other Lender shall have against the replaced Lender.



          (e) Notwithstanding the foregoing, this Agreement may be amended (x) with the written consent
of the Administrative Agent, the Borrower and the Lenders providing the relevant Replacement Term
Loans (as defined below) to permit the refinancing of all or a portion of the Loans outstanding
under an Incremental Term Facility (“Refinanced Term Loans”) with a replacement term loan
tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”);
provided that (i) the aggregate principal amount of such Replacement Term Loans shall not
exceed the aggregate principal amount of such Refinanced Term Loans, (ii) the weighted average life
to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to
maturity of such Refinanced Term Loans at the time of such refinancing and (iii) all other terms
applicable to such Replacement Term Loans shall substantially identical to, or less favorable to
the Lenders providing, such Replacement Term Loans than those applicable to such Refinanced Term
Loans, except to the extent necessary to provide for covenants and other terms applicable to any
period after the latest final maturity of any Loans in effect immediately prior to such refinancing
and (y) with the written consent of the Administrative Agent, the Borrower and the Lenders
providing the relevant Replacement Revolving Loans (as defined below) to permit the refinancing of
any Refinanced Term Loans with a revolving facility hereunder (“Replacement Revolving
Facility”); provided that (i) the aggregate principal amount of such Replacement Revolving
Facility shall not exceed the aggregate principal amount of such Refinanced Term Loans, (ii) the
final maturity date of such Replacement Revolving Facility shall be no earlier than the final
maturity date of the Refinanced Term Loans, (iii) the Replacement Revolving Facility shall be fully
drawn on the closing date thereof and the proceeds of the Replacement Revolving Facility shall be
used to repay the outstanding Refinanced Term Loans, and (iv) the Replacement Revolving Facility
shall be on terms and pursuant to documentation to be determined by the Borrower, the
Administrative Agent and the Persons willing to provide such Replacement Revolving Facility,
provided that (A) to the extent such terms and documentation are not consistent with such
Incremental Term Facility (other than with respect to pricing) they shall be reasonably
satisfactory to the Administrative Agent and (B) if the Applicable Margin (which term for purposes
of this Section 10.1(e) shall include any upfront fees payable by the Company to the lenders under
such Incremental Term Facility or the Replacement Revolving Facility, as applicable, in the



77









 




primary syndication thereof (with such upfront fees being equated to interest based on assumed
four-year life to maturity)) relating to any Replacement Revolving Facility exceeds the Applicable
Margin relating to the Refinanced Loans immediately prior to the refinancing thereof, the
Applicable Margin relating to such Incremental Term Facility shall be adjusted to equal the
Applicable Margin relating to such Replacement Revolving Facility.




          (f) In addition, notwithstanding the foregoing, this Agreement, including this Section 10.1,
and the other Loan Documents may be amended (or amended and restated) pursuant to Section 2.19 in
order to add any Incremental Facility to this Agreement and (a) to permit the 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 (including the rights of the lenders under
Incremental Facility to share ratably with the Revolving Facility in prepayments pursuant to
Sections 2.7 and 2.8), the Guaranty and Collateral Agreement and the other Loan Documents with the
Loans and the accrued interest and fees in respect thereof, (b) to include appropriately the
Lenders holding such credit facility in any determination of the Required Lenders and (c) to amend
other provision of the Loan Documents so that the Incremental Facility is appropriately
incorporated (including this Section 10.1).



          (g) Notwithstanding anything to the contrary contained in this Section 10.1, the
Administrative Agent and the Company, in their sole discretion, may amend, modify or supplement any
provision of this Agreement or any other Loan Document to (i) amend, modify or supplement such
provision or cure any ambiguity, omission, mistake, error, defect or inconsistency, so long as such
amendment, modification or supplement does not directly and adversely affect the obligations of any
Lender or Issuing Lender and (ii) permit additional Domestic Subsidiaries (excluding any U.S.
Foreign Holdcos) of the Company to guarantee the Obligations and/or provide Collateral therefor.
Such amendments shall become effective without any further action or consent of any other party to
any Loan Document. Upon the request of the Company, the Administrative Agent shall release any
Guarantor from the Guarantee and Collateral Agreement if such Guarantor ceases to qualify as a
Guarantor (in accordance with the definition of such term as provided herein).



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



	 	 	 	 	 

	The Borrowers:

	 	Lear Corporation
	 	 
	 

	 	21557 Telegraph Road	 	 
	 

	 	Southfield, Michigan 48033	 	 
	 

	 	Attention: Shari L. Burgess	 	 
	 

	 	Telecopy: (248) 447-1593	 	 
	 

	 	Telephone: (248) 447-1580	 	 
	 

	 	Email: sburgess@lear.com	 	 
	 
	 	 	 	 
	 

	 	With copies to:	 	 
	 
	 	 	 	 
	 

	 	Lear Corporation	 	 
	 

	 	21557 Telegraph Road	 	 
	 

	 	Southfield, Michigan 48033	 	 
	 

	 	Attention: Terrence B. Larkin	 	 
	 

	 	Telecopy: (248) 447-5126	 	 
	 

	 	Telephone: (248) 447-5123	 	 
	 

	 	Email: TLarkin@lear.com	 	 






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	 	With copies to (which shall not constitute a
notice hereunder):	 	 
	 
	 	 	 	 
	 

	 	Winston & Strawn LLP	 	 
	 

	 	35 West Wacker Drive	 	 
	 

	 	Chicago, Illinois 60601-9703	 	 
	 

	 	Telecopy: (312) 558-5989	 	 
	 

	 	Telephone: (312) 558-5700	 	 
	 

	 	Email: CBoehrer@winston.com	 	 
	 
	 	 	 	 
	Administrative Agent or 

Collateral Agent:

	 	 JPMorgan Chase Bank, N.A. 

270 Park Avenue	 	 
	 

	 	New York, New York 10017	 	 
	 

	 	Attention: Richard Duker	 	 
	 

	 	Telecopy: (212) 270-5100	 	 
	 

	 	Telephone: (212) 270-3057	 	 
	 

	 	Email: richard.duker@jpmorgan.com	 	 
	 
	 	 	 	 
	 

	 	If such notice or other communication relates to an
Alternative Currency Loan (including any request for a
Eurocurrency Borrowing denominated in an Alternative
Currency):
	 
	 	 	 	 
	 

	 	J.P. Morgan Europe Limited	 	 
	 

	 	125 London Wall	 	 
	 

	 	London, EC2Y 5AJ	 	 
	 

	 	United Kingdom	 	 
	 

	 	Attention of the Manager	 	 
	 

	 	Telecopy: +44 207 777 2360	 	 
	 
	 	 	 	 
	 

	 	With copies to:	 	 
	 
	 	 	 	 
	 

	 	JPMorgan Chase Bank, N.A.	 	 
	 

	 	1111 Fannin Street, Floor 10	 	 
	 

	 	Houston, Texas 77002	 	 
	 

	 	Attention: Alice Telles	 	 
	 

	 	Telecopy: (713) 750-2938	 	 
	 

	 	Telephone: (713) 750-7941	 	 
	 

	 	Email: alice.h.telles@jpmchase.com	 	 





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




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



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communications pursuant to procedures approved by it; provided that approval of such
procedures may be limited to particular notices or communications.




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



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



          10.5. Payment of Expenses. The Borrowers agree (a) to pay or reimburse each Agent for
all its reasonable, out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification to, this Agreement, the
other Loan Documents and any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and thereby, including the
reasonable fees and disbursements of counsel and any financial advisor or third party consultants
or appraisers to and each Agent and filing and recording fees and expenses, with statements with
respect to the foregoing to be submitted to the Company prior to the Closing Date (in the case of
amounts to be paid on the Closing Date) and from time to time thereafter on such other periodic
basis as each Agent shall deem appropriate, (b) to pay or reimburse each Lender and each Agent for
all its reasonable out-of-pocket costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, including in connection with any work-out,
restructuring, forbearance or other amendment providing relief to the Borrowers, the other Loan
Documents and any such other documents related thereto, including the reasonable fees and
disbursements of counsel and any financial advisor or third party consultants or appraisers to each
Agent and the reasonable fees and disbursements of counsel to the several Lenders; provided
that, in the case of clauses (a) and (b), the Borrowers shall not be obligated to so reimburse for
more than one law firm (and, in addition to such law firm, any local counsel engaged in each
relevant jurisdiction by such law firm) as counsel for the Lenders and the Agents, (c) to pay,
indemnify, and hold each Lender and each Agent harmless from, any and all recording and filing
fees, if any, that may be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions contemplated by, or any
amendment, supplement or modification of, or any waiver or consent under or in respect of, this
Agreement, the other Loan Documents and any such other documents related thereto, and (d) to pay,
indemnify, and hold each Lender and each Agent and their respective officers, directors, employees,
affiliates, agents, advisors, trustees and controlling persons (each, an “Indemnitee”)
harmless from and against any and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever
arising out of any litigation, investigation or proceeding with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the other Loan Documents and any
such other documents and instruments referred to therein, including any of the foregoing relating
to the use of proceeds of the Loans or the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of any Group Member or any of the Properties and the
reasonable fees and expenses of legal counsel in connection with claims, actions or proceedings by
any Indemnitee against any Loan Party under any Loan Document (all the foregoing in this clause
(d), collectively, the “Indemnified Liabilities”), provided, that the Borrowers
shall have no obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the
extent such



80









 




Indemnified Liabilities are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct
of such Indemnitee. Without limiting the foregoing, and to the extent permitted by applicable law,
the Borrowers agree not to assert and to cause their respective Subsidiaries not to assert, and
hereby waive and agree to cause their respective Subsidiaries to waive, all rights for contribution
or any other rights of recovery with respect to all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature, under or related to
Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee.
All amounts due under this Section 10.5 shall be payable not later than 10 days after a reasonably
detailed written demand therefor. Statements payable by the Borrowers pursuant to this Section
10.5 shall be submitted to Shari Burgess (Telecopy No. (248) 447-1593; Telephone No. 248-447-1580;
and Email: sburgess@lear.com), at the address of the Borrowers set forth in Section 10.2, or to
such other Person or address as may be hereafter designated by the applicable Borrower in a written
notice to the Administrative Agent. The agreements in this Section 10.5 shall survive repayment of
the Loans and all other amounts payable hereunder.




          10.6. Successors and Assigns; Participations and Assignments. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any affiliate of the Issuing Lender
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), (ii)
no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section and (iii) no Lender may assign or otherwise transfer its rights or obligations
hereunder to any Loan Party or any of its Affiliates.



          (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below and subject to
paragraph (a)(iii) above, any Lender may assign to one or more Eligible Assignees (each, an
“Assignee”) all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitments and the Loans at the time owing to it) with the prior written
consent of:




     (A) the Company (such consent not to be unreasonably withheld), provided 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 under Section 8.1(a) or 8.1(f) has
occurred and is continuing, any other Person; and provided, further, that
the Company shall be deemed to have consented to any such assignment unless the Company
shall object thereto by written notice to the Administrative Agent within ten Business Days
after having received notice thereof; and




     (B) the Administrative Agent,




     (C) the Swingline Lender, and




     (D) any Issuing Lender with LC Exposure exceeding $5,000,000 in the aggregate.




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




     (A) except in the case of an assignment to a Lender, an affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s
Commitments, the amount of the Commitments 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 the Administrative Agent otherwise consents;



81









 






     (B) (1) 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
and (2) the assigning Lender shall have paid in full any amounts owing by it to the
Administrative Agent; and




     (C) 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 Borrowers and their 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.




     (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) below,
from and after the effective date specified in each Assignment and Assumption the Assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this Agreement (and, in
the case of an Assignment and Assumption covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 10.5). Any
assignment or transfer by a Lender of rights or obligations under this Agreement that does
not comply with this Section 10.6 shall be treated for purposes of this Agreement as a sale
by such Lender of a participation in such rights and obligations in accordance with and to
the extent permitted by paragraph (c) of this Section.




     (iv) The Administrative Agent, acting for this purpose as an agent of the Borrowers,
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
Commitments of, and principal amount (and stated interest thereon) of the Loans and L/C
Obligations owing to, each Lender pursuant to the terms hereof from time to time (the
“Register”). The entries in the Register shall be conclusive absent manifest error,
and the Borrowers, the Administrative Agent, the Issuing Lender 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 Borrowers and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.




     (v) Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an Assignee, the Assignee’s completed administrative questionnaire
(unless the Assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section 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. No
assignment shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.



          (c) (i) Any Lender may, without the consent of the Borrowers or the Administrative Agent,
sell participations to one or more banks or other entities (a “Participant”) in all or a
portion of such Lender’s rights and obligations under this Agreement (including all or a portion of
its Commitments 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



82









 




performance of such obligations and (C) the Borrowers, the Administrative Agent, the Issuing
Lender and the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement. Any agreement pursuant
to which a Lender sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such agreement may provide that such Lender will
not, without the consent of the Participant, agree to any amendment, modification or waiver that
(1) requires the consent of each Lender directly affected thereby pursuant to the proviso to the
second sentence of Section 10.1 and (2) directly affects such Participant. Subject to paragraph
(c)(ii) of this Section, each Borrower agrees that each Participant shall be entitled to the
benefits of, and subject to the limitations of, Sections 2.15, 2.16 and 2.17 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this
Section. To the extent permitted by law, each Participant also shall be entitled to the benefits
of Section 10.7(b) as though it were a Lender, provided such Participant shall be subject
to Section 10.7(a) as though it were a Lender.





     (ii) A Participant shall not be entitled to receive any greater payment under Section
2.15, 2.16 or 2.17 than the applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant, unless the sale of the participation
to such Participant is made with the applicable Borrower’s prior written consent. No
Participant shall be entitled to the benefits of Section 2.16 unless such Participant
complies with Sections 2.16(d) and (e) as if it were a Lender.




     (iii) In the event that any Lender sells a participation in a Loan, such Lender shall,
acting solely for this purpose as an agent of the Borrowers, maintain a register on which it
enters the name and address of all participants in the Loans held by it and the principal
amount (and stated interest thereon) of the portion of the Loan which is the subject of the
participation (the “Participation Register”); provided that no Lender shall
have any obligation to disclose all or any portion of the Register to any Person (including
the identity of any participant or any information relating to a participant’s interest in
any Revolving Commitments, Revolving Loans, Letters of Credit or its other obligations under
this Agreement) except to the extent that such disclosure is necessary to establish that
such Revolving Commitment, Revolving Loan, Letter of Credit or other obligation is in
registered form under Section 5f.103-1(c) of the United States Treasury Regulations. A Loan
may be participated in whole or in part only by registration of such participation on the
Participation Register. Any transfer of such participation may be effected only by the
Registration of such transfer on the Participation Register. The entries in the
Participation Register shall be conclusive absent manifest error and such Lender shall treat
such participants whose name is recorded in the Participation Register as the owner of such
participation for all purposes of this Agreement, notwithstanding any notice to the
contrary. The Participation Register shall be available for inspection by the Administrative
Agent at any reasonable time upon reasonable prior notice.



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



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



83









 





          (f) Notwithstanding the foregoing, any Conduit Lender may assign any or all of the Loans it
may have funded hereunder to its designating Lender without the consent of the Borrowers or the
Administrative Agent and without regard to the limitations set forth in Section 10.6(b) (but with
regard to the requirements set forth in Section 10.6(b)(iv)). Each of the Borrowers, each Lender
and the Administrative Agent hereby confirms that it will not institute against a Conduit Lender or
join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for
one year and one day after the payment in full of the latest maturing commercial paper note issued
by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender
hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost,
damage or expense arising out of its inability to institute such a proceeding against such Conduit
Lender during such period of forbearance.



          10.7. Adjustments; Set off. (a) Except to the extent that this Agreement, any other
Loan Document or a court order expressly provides for payments to be allocated to a particular
Lender or Lenders (including assignments made pursuant to Section 10.6), if any Lender (a
“Benefited Lender”) shall, at any time after the Loans and other amounts payable hereunder
shall immediately become due and payable pursuant to Section 8, receive any payment of all or part
of the Obligations owing to it, or receive any collateral in respect thereof (whether voluntarily
or involuntarily, by set off, or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of the Obligations owing to such other
Lender, such Benefited Lender shall purchase for cash from the other Lenders a participating
interest in such portion of the Obligations owing to each such other Lender, or shall provide such
other Lenders with the benefits of any such collateral, as shall be necessary to cause such
Benefited Lender to share the excess payment or benefits of such collateral ratably with each of
the Lenders; provided, however, that if all or any portion of such excess payment
or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded,
and the purchase price and benefits returned, to the extent of such recovery, but without interest.



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



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



          10.9. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such




84











 




prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.




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




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




          10.12. Submission To Jurisdiction; Waivers. Each Loan Party hereby irrevocably and
unconditionally:




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




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




          (c) agrees that service of process in any such action or proceeding may be effected by mailing
a copy thereof by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to such Loan Party at its address set forth in Section 10.2 or at such other address of
which the Administrative Agent shall have been notified pursuant thereto;




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




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




          10.13. Acknowledgements. Each Loan Party hereby acknowledges that:




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




          (b) none of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers, the
Joint Bookrunners, the Co-Documentation Agents, the Syndication Agent nor any Lender has any
fiduciary relationship with or duty to any Loan Party arising out of or in connection with this
Agreement or any of the other Loan Documents, and the relationship between the Administrative
Agent, the Collateral Agent, the Joint Lead Arrangers, the Joint Bookrunners, the Co-Documentation
Agents, the






85









 







Syndication Agent and the Lenders, on one hand, and the Loan Parties, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor; and




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




          10.14. Releases of Guarantees and Liens. (a) Notwithstanding anything to the
contrary contained herein or in any other Loan Document, each of the Administrative Agent and the
Collateral Agent is hereby irrevocably authorized by each Lender (without requirement of notice to
or consent of any Lender except as expressly required by Section 10.1) to take any action requested
by the Company having the effect of (1) releasing, or subordinating any Lien on, any Collateral or
guarantee obligations (i) to the extent necessary to permit consummation of any transaction not
prohibited by any Loan Document or that has been consented to in accordance with Section 10.1 or
(ii) under the circumstances described in paragraph (b) below or (2) in the case of any pari passu
bonds, pari passu term loans, second lien bonds and second lien term loans of the Company permitted
by Section 7.2(m), entry into intercreditor agreements or arrangements reasonably satisfactory to
the Administrative Agent in order to effectuate the intent of Section 7.2(m).




          (b) At such time as the Loans, the Reimbursement Obligations and the other obligations under
the Loan Documents (other than obligations under or in respect of Specified Swap Agreements and any
contingent indemnification obligations) shall have been paid in full, the Commitments have been
terminated and the Letter of Credit shall be outstanding, the Collateral shall be released from the
Liens created by the Loan Documents, and all obligations related thereto (other than those
expressly stated to survive such termination) of the Administrative Agent, the Collateral Agent and
each Loan Party shall terminate, all without delivery of any instrument or performance of any act
by any Person.




          10.15. Confidentiality. (a) Each of the Administrative Agent and each Lender agrees
to keep confidential all non-public information provided to it by any Loan Party, the
Administrative Agent or any Lender pursuant to or in connection with this Agreement that is
designated by the provider thereof as confidential; provided that nothing herein shall
prevent the Administrative Agent or any Lender from disclosing any such information (a) to the
Administrative Agent, any other Lender or any affiliate thereof, (b) subject to an agreement to
comply with the provisions of this Section, to any actual or prospective Transferee or any direct
or indirect counterparty to any Swap Agreement (or any professional advisors to such counterparty),
(c) to its employees, officers, directors, agents, attorneys, accountants and other professional
advisors or those of any of its affiliates, provided that such Persons have been advised of
the confidentiality provisions hereof and are subject thereto, (d) upon the request or demand of
any Governmental Authority, (e) in response to any order of any court or other Governmental
Authority or as may otherwise be required pursuant to any Requirement of Law, (f) if requested or
required to do so in connection with any litigation or similar proceeding, (g) that has been
publicly disclosed, (h) to the National Association of Insurance Commissioners or any similar
organization or any nationally recognized rating agency that requires access to information about a
Lender’s investment portfolio in connection with ratings issued with respect to such Lender, or (i)
in connection with the exercise of any remedy hereunder or under any other Loan Document.




          (b) Each Lender acknowledges that information furnished to it pursuant to this Agreement or
the other Loan Documents may include material non-public information concerning each Borrower and
its Affiliates and their 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






86









 







handle such material non-public information in accordance with those procedures and applicable
law, including Federal and state securities laws.




          (c) All information, including requests for waivers and amendments, furnished by the Borrowers
or the Administrative Agent pursuant to, or in the course of administering, this Agreement or the
other Loan Documents will be syndicate-level information, which may contain material non-public
information about each Borrower and its Affiliates and their related parties or their respective
securities. Accordingly, each Lender represents to the Borrowers 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, including Federal and state securities laws.




          10.16. Satisfaction in Applicable Currency. (a) If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum owing hereunder in one currency into
another currency, each party hereto agrees, to the fullest extent that it may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal banking procedures
in the relevant jurisdiction the first currency could be purchased with such other currency on the
Business Day immediately preceding the day on which final judgment is given.




          (b) The obligation of each Borrower hereunder or in respect of the Letters of Credit to make
payments in a currency (the “Agreement Currency”) shall, notwithstanding any judgment in a
currency (the “Judgment Currency”) other than the Agreement Currency, be discharged only to
the extent that, on the Business Day following receipt by the Administrative Agent and the Lenders
of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent and the Lenders
may in accordance with normal banking procedures in the relevant jurisdiction purchase the
Agreement Currency with the Judgment Currency; if the amount of the Agreement Currency so purchased
is less than the sum originally due to the Administrative Agent and the Lenders in the Agreement
Currency, the applicable Borrower agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify the Administrative Agent, the Issuing Lenders and each Lender (as an
alternative or additional cause of action) against such loss (if any) and if the amount of the
Agreement Currency so purchased exceeds the sum originally due to the Administrative Agent and the
Lenders in the Agreement Currency, the Administrative Agent and the Lenders agree to remit such
excess to the applicable Borrower. The obligations of each Borrower contained in this Section 10.16
shall survive the termination of this Agreement and the payment of all other amounts owing
hereunder.




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




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




          10.19. Power of Attorney. Each Foreign Subsidiary Borrower hereby grants to the
Company an irrevocable power of attorney to act as its attorney-in-fact with regard to matters
relating to this Agreement and each other Loan Document, including, without limitation, execution
and delivery of any amendments, supplements, waivers or other modifications hereto or thereto,
receipt of any notices






87









 







hereunder or thereunder and receipt of service of process in connection herewith or therewith.
Each Foreign Subsidiary Borrower hereby explicitly acknowledges that the Administrative Agent and
each Lender have executed and delivered this Agreement and each other Loan Document to which it is
a party, and has performed its obligations under this Agreement and each other Loan Document to
which it is a party, in reliance upon the irrevocable grant of such power of attorney pursuant to
this Section. The power of attorney granted by each Foreign Subsidiary Borrower hereunder is
coupled with an interest.




          10.20. Amendment and Restatement. This Agreement amends and restates the Existing
Credit Agreement. All indebtedness, obligations and Liens created by the Existing Credit Agreement
and the Loan Documents referred to therein remain outstanding and in effect and are continued by
this Agreement and the other Loan Documents with such modifications as are set forth herein and
therein.




SECTION 11. COLLATERAL ALLOCATION MECHANISM




          11.1. Implementation of CAM. (a) On the CAM Exchange Date (i) the Revolving
Commitments shall automatically and without further act be terminated as provided in Section 8,
(ii) the Lenders shall automatically and without further act (and without regard to the provisions
of Section 10.6) be deemed to have exchanged interests in the Facilities such that in lieu of the
interest of each Lender in each Facility in which it shall participate as of such date (including
such Lender’s interest in the Designated Obligations of each Loan Party in respect of each such
Facility), such Lender shall hold an interest in every one of the Facilities (including the
Designated Obligations of each Loan Party in respect of each such Loan Facility and each L/C
Reserve Account established pursuant to Section 11.2 below), whether or not such Lender shall
previously have participated therein, equal to such Lender’s CAM Percentage thereof and (iii)
simultaneously with the deemed exchange of interests pursuant to clause (ii) above, Designated
Obligations to be received by the Lenders in such deemed exchange shall, automatically and with no
further action required, be converted into the Dollar Equivalent, determined using the Exchange
Rate calculated as of such date, of such amount and on and after such date all amounts accruing and
owed to the Lenders in respect of such Designated Obligations shall accrue and be payable in
Dollars at the rate otherwise applicable hereunder; provided, that such CAM Exchange will
not affect the aggregate amount of the Obligations of the Borrowers to the Lenders under the Loan
Documents. Each Lender and each Loan Party hereby consents and agrees to the CAM Exchange, and
each Lender agrees that the CAM Exchange shall be binding upon its successors and assigns and any
Person that acquires a participation in its interests in any Facility. Each Loan Party and each
Lender agrees from time to time to execute and deliver to the Administrative Agent all promissory
notes and other instruments and documents as the Administrative Agent shall reasonably request to
evidence and confirm the respective interests of the Lenders after giving effect to the CAM
Exchange, and each Lender agrees to surrender any promissory notes originally received by it in
connection with its Loans hereunder to the Administrative Agent against delivery of new promissory
notes evidencing its interests in the Credit Facilities; provided, however, that
the failure of any Loan Party to execute or deliver or of any Lender to accept any such promissory
note, instrument or document shall not affect the validity or effectiveness of the CAM Exchange.




          (b) As a result of the CAM Exchange, upon and after the CAM Exchange Date, each payment
received by the Administrative Agent pursuant to any Loan Document in respect of the Designated
Obligations, and each distribution made by the Administrative Agent pursuant to any Loan Document
in respect of the Designated Obligations, shall be distributed to the Lenders pro rata in
accordance with their respective CAM Percentages. Any direct payment received by a Lender upon or
after the CAM Exchange Date, including by way of setoff, in respect of a Designated Obligation
shall be paid over to the Administrative Agent for distribution to the Lenders in accordance
herewith.







88









 








          11.2. Letters of Credit. (a) In the event that on the CAM Exchange Date, any Letter
of Credit shall be outstanding and undrawn in whole or in part, or any amount drawn under a Letter
of Credit shall not have been reimbursed (an “Unpaid Drawing”), each Lender in respect of
Unpaid Drawings on Letters of Credit shall, before giving effect to the CAM Exchange, promptly pay
over to the Administrative Agent, in immediately available funds and in the currency that such
Letters of Credit are denominated, an amount equal to such Lender’s Revolving Percentage (as
notified to such Lender by the Administrative Agent), of such Letter of Credit’s undrawn face
amount or (to the extent it has not already done so) such Letter of Credit’s Unpaid Drawing, as the
case may be, together with interest thereon from the CAM Exchange Date to the date on which such
amount shall be paid to the Administrative Agent at the rate that would be applicable at the time
to a Revolving Loan that is an ABR Loan in a principal amount equal to such amount. The
Administrative Agent shall establish a separate account or accounts for each Lender (each, an
“L/C Reserve Account”) for the amounts received with respect to each such Letter of Credit
pursuant to the preceding sentence. The Administrative Agent shall deposit in each Lender’s L/C
Reserve Account such Lender’s CAM Percentage of the amounts received from the Lenders as provided
above. The Administrative Agent shall have sole dominion and control over each L/C Reserve
Account, and the amounts deposited in each L/C Reserve Account shall be held in such L/C Reserve
Account until withdrawn as provided in paragraph (b), (c), (d) or (e) below. The Administrative
Agent shall maintain records enabling it to determine the amounts paid over to it and deposited in
the L/C Reserve Accounts in respect of each Letter of Credit and the amounts on deposit in respect
of each Letter of Credit attributable to each Lender’s CAM Percentage. The amounts held in each
Lender’s L/C Reserve Account shall be held as a reserve against the LC Exposure, shall be the
property of such Lender, shall not constitute Loans to or give rise to any claim of or against any
Loan Party and shall not give rise to any obligation on the part of any Borrower to pay interest to
such Lender, it being agreed that the reimbursement obligations in respect of Letters of Credit
shall arise only at such times as drawings are made thereunder, as provided in Section 3.




          (b) In the event that after the CAM Exchange Date any drawing shall be made in respect of a
Letter of Credit, the Administrative Agent shall, at the request of the Issuing Lender, withdraw
from the L/C Reserve Account of each Lender any amounts, up to the amount of such Lender’s CAM
Percentage of such drawing, deposited in respect of such Letter of Credit and remaining on deposit
and deliver such amounts to the Issuing Lender in satisfaction of the reimbursement obligations of
the Lenders under Section 3 (but not of the Borrowers under Section 3). In the event any Lender
shall default on its obligation to pay over any amount to the Administrative Agent in respect of
any Letter of Credit as provided in this Section 11.2, the Issuing Lender shall, in the event of a
drawing thereunder, have a claim against such Lender to the same extent as if such Lender had
defaulted on its obligations under Section 3.4), but shall have no claim against any other Lender
in respect of such defaulted amount, notwithstanding the exchange of interests in the reimbursement
obligations pursuant to Section 11.1. Each other Lender shall have a claim against such defaulting
Lender for any damages sustained by it as a result of such default, including, in the event such
Letter of Credit shall expire undrawn, its CAM Percentage of the defaulted amount.




          (c) In the event that after the CAM Exchange Date any Letter of Credit shall expire undrawn,
the Administrative Agent shall withdraw from the L/C Reserve Account of each Lender the amount
remaining on deposit therein in respect of such Letter of Credit and distribute such amount to such
Lender.




          (d) With the prior written approval of the Administrative Agent and the Issuing Lender, any
Lender may withdraw the amount held in its L/C Reserve Account in respect of the undrawn amount of
any Letter of Credit. Any Lender making such a withdrawal shall be unconditionally obligated, in
the event there shall subsequently be a drawing under such Letter of Credit, to pay over to






89









 







the Administrative Agent, for the account of the Letter of Credit Issuer on demand, its CAM
Percentage of such drawing.




          (e) Pending the withdrawal by any Lender of any amounts from its L/C Reserve Account as
contemplated by the above paragraphs, the Administrative Agent will, at the direction of such
Lender and subject to such rules as the Administrative Agent may prescribe for the avoidance of
inconvenience, invest such amounts in Cash Equivalents. Each Lender that has not withdrawn the
amounts in its L/C Reserve Account as provided in paragraph (d) above shall have the right, at
intervals reasonably specified by the Administrative Agent, to withdraw the earnings on investments
so made by the Administrative Agent with amounts in its L/C Reserve Account and to retain such
earnings for its own account.




          11.3. Net Payments Upon Implementation of CAM Exchange. The Borrowers agree that
following the implementation of the CAM Exchange, the Lenders, to the extent that they are
Participants in any of the Loans or Letters of Credit, shall not be subject to the limitations of
Section 10.6(c)(ii).




[Remainder of page intentionally left blank]






90









 





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



	 	 	 	 	 
	 	LEAR CORPORATION

 	 
	 	By:  	/s/ Matthew J. Simoncini
 	 
	 	 	Name:  	Matthew J. Simoncini 	 
	 	 	Title:  	Senior Vice President and Chief
Financial Officer 	 
	 
	 	JPMORGAN CHASE BANK, N.A.

as Administrative Agent and Collateral Agent

and as a Lender

 	 
	 	By:  	/s/ Richard W. Duker
 	 
	 	 	Name:  	Richard W. Duker 	 
	 	 	Title:  	Managing Director 	 
	 
	 	UBS SECURITIES LLC, as Co-Documentation Agent

 	 
	 	By:  	/s/ Irja R. Otsa
 	 
	 	 	Name:  	Irja R. Otsa 	 
	 	 	Title:  	Associate Director, Banking Products
Services, US 	 
	 
	 	 	 
	 	By:  	                     /s/ April Varner-Nanton
 	 
	 	 	Name:  	April Varner-Nanton 	 
	 	 	Title:  	Director, Banking Products Services, US 	 
	 
	 	UBS LOAN FINANCE LLC, as a Lender

 	 
	 	By:  	/s/ Irja R. Otsa
 	 
	 	 	Name:  	Irja R. Otsa 	 
	 	 	Title:  	Associate Director, Banking Products
Services, US 	 
	 
	 	 	 
	 	By:  	                     /s/ April Varner-Nanton
 	 
	 	 	Name:  	April Varner-Nanton 	 
	 	 	Title:  	Director, Banking Products Services, US 	 




[Credit Agreement Signature Page]




 









 





	 	 	 	 	 
	 	CITIBANK, N.A., as Syndication Agent and as a

Lender

 	 
	 	By:  	/s/ Stephanie Sanders
 	 
	 	 	Name:  	Stephanie Sanders 	 
	 	 	Title:  	Vice President 	 
	 
	 	BARCLAYS BANK PLC, as a Lender

 	 
	 	By:  	/s/ Diane Rolfe
 	 
	 	 	Name:  	Diane Rolfe 	 
	 	 	Title:  	Director 	 
	 
	 	RBC BANK (USA), as a Lender

 	 
	 	By:  	/s/ Richard Marshall
 	 
	 	 	Name:  	Richard Marshall 	 
	 	 	Title:  	Market Executive – National Division 	 
	 
	 	ROYAL BANK OF CANADA, as a Lender

 	 
	 	By:  	/s/ Meredith Majesty
 	 
	 	 	Name:  	Meredith Majesty 	 
	 	 	Title:  	Authorized Signatory 	 
	 
	 	SUMITOMO MITSUI BANKING CORPORATION, as a

Lender

 	 
	 	By:  	/s/ Shuji Yabe
 	 
	 	 	Name:  	Shuji Yabe 	 
	 	 	Title:  	General Manager 	 
	 
	 	COMMERZBANK AG, NEW YORK AND GRAND


CAYMAN BRANCHES, as a Lender

 	 
	 	By:  	/s/ Patrick Hartweger
 	 
	 	 	Name:  	Patrick Hartweger 	 
	 	 	Title:  	Managing Director 	 





[Credit Agreement Signature Page]




 









 





	 	 	 	 	 
	 	 	 
	 	By:  	                       /s/ Peter Wesemeier
 	 
	 	 	Name:  	Peter Wesemeier 	 
	 	 	Title:  	Vice President 	 
	 
	 	HSBC BANK USA, NA, as a Lender

 	 
	 	By:  	/s/ Gregory R. Duval
 	 
	 	 	Name:  	Gregory R. Duval 	 
	 	 	Title:  	Vice President 	 
	 
	 	THE HUNTINGTON NATIONAL BANK, as a Lender

 	 
	 	By:  	/s/ Steven J. McCormack
 	 
	 	 	Name:  	Steven J. McCormack 	 
	 	 	Title:  	Vice President 	 
	 
	 	THE NORTHERN TRUST COMPANY, as a Lender

 	 
	 	By:  	/s/ Phillip McCaulay
 	 
	 	 	Name:  	Phillip McCaulay 	 
	 	 	Title:  	Vice President 	 
	 
	 	PNC BANK, N.A., as a Lender

 	 
	 	By:  	/s/ James R. Denison
 	 
	 	 	Name:  	James R. Denison 	 
	 	 	Title:  	Vice President 	 
	 
	 	U.S. BANK NATIONAL ASSOCIATION, as a Lender

 	 
	 	By:  	/s/ Jeffrey S. Johnson
 	 
	 	 	Name:  	Jeffrey S. Johnson 	 
	 	 	Title:  	Vice President 	 




[Credit Agreement Signature Page]



 












 








Annex III




Conditions Precedent to Permitted Acquisitions




     (1) The Administrative Agent shall receive not less than ten Business Days’ prior written
notice of such Acquisition (provided that such notice shall only be required for an
Acquisition involving consideration in excess of $100,000,000), which notice shall include a
reasonably detailed description of the proposed terms of such Acquisition and identify the
anticipated closing date thereof;



     (2) concurrently with such Acquisition, the Company shall comply, and shall cause the Target
to the extent applicable to comply, with the provisions of Section 6.9 of the Credit Agreement;



     (3) after giving effect to such Acquisition and the incurrence of any Indebtedness in
connection therewith, (a) no Default or Event of Default shall exist, and (b) the Company shall be
in compliance on a pro forma basis with the covenants set forth in Section 7.1 recomputed for the
most recently ended fiscal quarter of the Company for which information is available regarding the
business being acquired;



     (4) all material consents necessary for such Acquisition have been acquired and such
Acquisition shall have been approved by the applicable Target’s board of directors or similar
governing body; and



     (5) the applicable Target shall be engaged in substantially the same type of business as the
Company and its Subsidiaries or a reasonable extension thereof.



 









 





SCHEDULE 1.01D




ADDITIONAL COSTS




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









	 	 	 	 	 	 	 

	 	 	AB + C(B – D) +E × 0.01

	 	percent per annum
	 	 	 	 
	 	 	100 – (A +C)	 
	 	 	  (b) in relation to a Loan in any currency other than sterling:
	 
	 	 	 	 	 	 
	 

	 	E × 0.01


	 	percent per annum. 	 	 
	 

	 	300
	 		 	 
	 

	 	         Where:	 	 	 	 







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




 









 






	 	D	 	is the percentage rate per annum payable by the Bank of England to the
Administrative Agent on interest bearing Special Deposits.
	 
	 	E	 	is designed to compensate Lenders for amounts payable under the Fees Rules and is
calculated by the Administrative Agent as being the average of the most recent rates of
charge supplied by the Reference Banks to the Administrative Agent pursuant to paragraph
7 below and expressed in English Pounds Sterling per £1,000,000.






	5.	 	For the purposes of this Schedule:






	 	(a)	 	“Eligible Liabilities” and “Special Deposits” have the meanings given to them
from time to time under or pursuant to the Bank of England Act 1998 or (as may be
appropriate) by the Bank of England;
	 
	 	(b)	 	“Fees Rules” means the rules on periodic fees contained in the FSA Supervision
Manual or such other law or regulation as may be in force from time to time in respect
of the payment of fees for the acceptance of deposits;
	 
	 	(c)	 	“Fee Tariffs” means the fee tariffs specified in the Fees Rules under the
activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee
required pursuant to the Fees Rules but taking into account any applicable discount
rate);
	 
	 	(d)	 	“Reference Banks” means, in relation to LIBOR and Additional Cost the principal
London office of the Administrative Agent or such other banks as may be appointed by the
Administrative Agent in consultation with the Borrower; and
	 
	 	(e)	 	“Tariff Base” has the meaning given to it in, and will be calculated in
accordance with, the Fees Rules.






	6.	 	In application of the above formulae, A, B, C and D will be included in the formulae
as percentages (i.e., 5 percent will be included in the formula as 5 and not as 0.05). A
negative result obtained by subtracting D from B shall be taken as zero. The resulting
figures shall be rounded to four decimal places.
	 
	7.	 	If requested by the Administrative Agent, each Reference Bank shall, as soon as
practicable after publication by the Financial Services Authority, supply to the
Administrative Agent, the rate of charge payable by that Reference Bank to the Financial
Services Authority pursuant to the Fees Rules in respect of the relevant financial year of the
Financial Services Authority (calculated for this purpose by that Reference Bank as being the
average of the Fee Tariffs applicable to that Reference Bank for that financial year) and
expressed in English Pounds Sterling per £1,000,000 of the Tariff Base of that Reference Bank.
	 
	8.	 	Each Lender shall supply any information required by the Administrative Agent for the
purpose of calculating its Additional Cost Rate. In particular, but without limitation, each
Lender shall supply the following information on or prior to the date on which it becomes a
Lender:






	 	(a)	 	the jurisdiction of its facility office; and




 









 






	 	(b)	 	any other information that the Administrative Agent may reasonably require for
such purpose.





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





	9.	 	The percentages of each Lender for the purpose of A and C above and the rates of
charge of each Reference Bank for the purpose of E above shall be determined by the
Administrative Agent based upon the information supplied to it pursuant to paragraphs 7 and 8
above and on the assumption that, unless a Lender notifies the Administrative Agent to the
contrary, each Lender’s obligations in relation to cash ratio deposits and special deposits
are the same as those of a typical bank from its jurisdiction of incorporation with a facility
office in the same jurisdiction as its facility office.
	 
	10.	 	The Administrative Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any Lender and shall be
entitled to assume that the information provided by any Lender or Reference Bank pursuant to
paragraphs 3, 7 and 8 above is true and correct in all respects.
	 
	11.	 	The Administrative Agent shall distribute the additional amounts received as a result
of the Additional Cost to the Lenders on the basis of the Additional Cost Rate for each Lender
based on the information provided by each Lender and each Reference Bank pursuant to
paragraphs 3, 7 and 8 above.
	 
	12.	 	Any determination by the Administrative Agent pursuant to this Schedule in relation
to a formula, the Additional Cost, an Additional Cost Rate or any amount payable to a Lender
shall, in the absence of manifest error, be conclusive and binding on all Loan Parties.
	 
	13.	 	The Administrative Agent may from time to time, after consultation with the Borrower
and the Lenders, determine and notify to all Loan Parties any amendments which are required to
be made to this Schedule 1.01(a) in order to comply with any change in law, regulation or any
requirements from time to time imposed by the Bank of England, the Financial Services
Authority or the European Central Bank (or, in any case, any other authority which replaces
all or any of its functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all Loan Parties.