exv10w1






Exhibit 10.1




Execution Version


      





Published CUSIP Number: 60819EAC8

Revolving Credit CUSIP Number: 60819EAD6




CREDIT AGREEMENT




Dated as of July 8, 2011



among



MOHAWK INDUSTRIES, INC.



and



CERTAIN OF ITS SUBSIDIARIES,



as Borrowers,



BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender

and a

L/C Issuer,



JPMORGAN CHASE BANK, N.A.,

SUNTRUST BANK,

and

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as

Syndication Agents

BARCLAYS BANK PLC,



ING BELGIUM SA/NV,

MIZUHO CORPORATE BANK, LTD.,

REGIONS BANK,

and

U.S. BANK NATIONAL ASSOCIATION

as

Documentation Agents



and



The Other Lenders Party Hereto



MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

J.P. MORGAN SECURITIES LLC,

SUNTRUST ROBINSON HUMPHREY, INC.,

and

WELLS FARGO SECURITIES, LLC,

as

Joint Lead Arrangers and Joint Book Managers



 









 





TABLE OF CONTENTS




	 	 	 	 	 
	Section	 	Page	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	35	 
	1.03 Accounting Terms
	 	 	36	 
	1.04 Rounding
	 	 	37	 
	1.05 Exchange Rates; Currency Equivalents
	 	 	37	 
	1.06 Additional Alternative Currencies
	 	 	37	 
	1.07 Change of Currency
	 	 	38	 
	1.08 Times of Day
	 	 	39	 
	1.09 Letter of Credit Amounts
	 	 	39	 
	 
	 	 	 	 
	ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	39	 
	2.01 Committed Loans
	 	 	39	 
	2.02 Borrowings, Conversions and Continuations of Committed Loans
	 	 	39	 
	2.03 Letters of Credit
	 	 	41	 
	2.04 Swing Line Loans
	 	 	50	 
	2.05 Prepayments
	 	 	53	 
	2.06 Termination or Reduction of Commitments
	 	 	54	 
	2.07 Repayment of Loans
	 	 	55	 
	2.08 Interest
	 	 	55	 
	2.09 Fees
	 	 	56	 
	2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate
	 	 	56	 
	2.11 Evidence of Debt
	 	 	57	 
	2.12 Payments Generally; Administrative Agent’s Clawback
	 	 	57	 
	2.13 Sharing of Payments by Lenders
	 	 	59	 
	2.14 Designated Borrowers; Agency of Company for Foreign Borrowers
	 	 	60	 
	2.15 [Reserved]
	 	 	61	 
	2.16 Increase in Commitments
	 	 	61	 
	2.17 Cash Collateral
	 	 	62	 
	2.18 Defaulting Lenders
	 	 	63	 
	2.19 Designation of Subsidiaries
	 	 	65	 
	 
	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	66	 
	3.01 Taxes
	 	 	66	 
	3.02 Illegality
	 	 	70	 
	3.03 Inability to Determine Rates
	 	 	71	 
	3.04 Increased Costs; Reserves on Eurocurrency Rate Loans
	 	 	71	 
	3.05 Compensation for Losses
	 	 	73	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	74	 
	3.07 Survival
	 	 	74	 
	 
	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	74	 
	4.01 Conditions of Initial Credit Extension
	 	 	74	 
	4.02 Conditions to all Credit Extensions
	 	 	76	 
	 
	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	77	 
	5.01 Existence, Qualification and Power
	 	 	77	 
	5.02 Authorization; No Contravention
	 	 	77	 
	5.03 Governmental Authorization; Other Consents
	 	 	77	 






i









 




TABLE OF CONTENTS (continued)




	 	 	 	 	 
	Section	 	Page	 
	5.04 Binding Effect
	 	 	78	 
	5.05 Financial Statements; No Material Adverse Effect; Casualty Events
	 	 	78	 
	5.06 Litigation
	 	 	78	 
	5.07 No Default
	 	 	78	 
	5.08 Ownership of Property
	 	 	79	 
	5.09 Environmental Compliance
	 	 	79	 
	5.10 Taxes
	 	 	79	 
	5.11 ERISA Compliance
	 	 	79	 
	5.12 Subsidiaries; Equity Interests
	 	 	80	 
	5.13 Margin Regulations; Investment Company Act
	 	 	80	 
	5.14 Disclosure
	 	 	80	 
	5.15 Compliance with Laws
	 	 	80	 
	5.16 Taxpayer Identification Number; Other Identifying Information
	 	 	80	 
	5.17
Intellectual Property; Licenses, Etc.
	 	 	81	 
	5.18 Solvency
	 	 	81	 
	5.19 Representations as to Foreign Obligors
	 	 	81	 
	5.20 OFAC
	 	 	82	 
	 
	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS
	 	 	82	 
	6.01 Financial Statements
	 	 	82	 
	6.02 Certificates; Other Information
	 	 	83	 
	6.03 Notices
	 	 	84	 
	6.04 Payment of Taxes and Claims
	 	 	85	 
	6.05
Preservation of Existence, Etc.
	 	 	85	 
	6.06 Maintenance of Properties
	 	 	86	 
	6.07 Maintenance of Insurance
	 	 	86	 
	6.08 Compliance with Laws
	 	 	86	 
	6.09 Books and Records
	 	 	86	 
	6.10 Inspection Rights
	 	 	86	 
	6.11 Use of Proceeds
	 	 	87	 
	6.12 Compliance with Environmental Laws
	 	 	87	 
	6.13 Approvals and Authorizations
	 	 	87	 
	6.14 Notices Regarding Subsidiaries; Covenant to Guarantee and Give Security
	 	 	87	 
	6.15 Further Assurances
	 	 	89	 
	6.16 Extended Letters of Credit
	 	 	89	 
	6.17 Corporate Ratings
	 	 	90	 
	6.18 Post-Closing Matters
	 	 	90	 
	 
	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS
	 	 	90	 
	7.01 Liens
	 	 	90	 
	7.02 Investments
	 	 	93	 
	7.03 Indebtedness
	 	 	95	 
	7.04 Fundamental Changes
	 	 	97	 
	7.05 Dispositions
	 	 	99	 
	7.06 Restricted Payments
	 	 	100	 
	7.07 Change in Nature of Business
	 	 	101	 
	7.08 Transactions with Affiliates
	 	 	101	 
	7.09 Burdensome Agreements
	 	 	102	 
	7.10 Use of Proceeds
	 	 	103	 
	7.11 Accounting Changes; Organizational Documents
	 	 	103	 
	7.12 Financial Covenants
	 	 	104	 






ii









 




TABLE OF CONTENTS (continued)




	 	 	 	 	 
	Section	 	Page	 
	7.13 Receivables Financing Subsidiaries
	 	 	104	 
	 
	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
	 	 	104	 
	8.01 Events of Default
	 	 	104	 
	8.02 Remedies Upon Event of Default
	 	 	106	 
	8.03 Application of Funds
	 	 	106	 
	 
	 	 	 	 
	ARTICLE IX. ADMINISTRATIVE AGENT
	 	 	107	 
	9.01 Appointment and Authority
	 	 	107	 
	9.02 Rights as a Lender
	 	 	108	 
	9.03 Exculpatory Provisions
	 	 	108	 
	9.04 Reliance by Administrative Agent
	 	 	109	 
	9.05 Delegation of Duties
	 	 	109	 
	9.06 Resignation of Administrative Agent
	 	 	109	 
	9.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	110	 
	9.08 No
Other Duties, Etc.
	 	 	111	 
	9.09 Administrative Agent May File Proofs of Claim
	 	 	111	 
	9.10 Collateral and Guaranty Matters
	 	 	111	 
	9.11 Secured Cash Management Agreements and Secured Hedge Agreements
	 	 	112	 
	 
	 	 	 	 
	ARTICLE X. COLLECTION ALLOCATION MECHANISM
	 	 	112	 
	10.01 Implementation of CAM
	 	 	112	 
	10.02 Letters of Credit
	 	 	113	 
	10.03 No Additional Obligations of Loan Parties
	 	 	114	 
	 
	 	 	 	 
	ARTICLE XI. MISCELLANEOUS
	 	 	114	 
	11.01
Amendments, Etc.
	 	 	114	 
	11.02 Notices; Effectiveness; Electronic Communication
	 	 	116	 
	11.03 No Waiver; Cumulative Remedies; Enforcement
	 	 	117	 
	11.04 Expenses; Indemnity; Damage Waiver
	 	 	118	 
	11.05 Payments Set Aside
	 	 	120	 
	11.06 Successors and Assigns
	 	 	120	 
	11.07 Treatment of Certain Information; Confidentiality
	 	 	124	 
	11.08 Right of Setoff
	 	 	125	 
	11.09 Interest Rate Limitation
	 	 	126	 
	11.10 Counterparts; Integration; Effectiveness
	 	 	126	 
	11.11 Survival of Representations and Warranties
	 	 	126	 
	11.12 Severability
	 	 	126	 
	11.13 Replacement of Lenders
	 	 	126	 
	11.14
Governing Law; Jurisdiction; Etc.
	 	 	127	 
	11.15 Waiver of Jury Trial
	 	 	128	 
	11.16 No Advisory or Fiduciary Responsibility
	 	 	128	 
	11.17 Electronic Execution of Assignments and Certain Other Documents
	 	 	129	 
	11.18 USA PATRIOT Act
	 	 	129	 
	11.19 Judgment Currency
	 	 	129	 
	11.20 Release and Reinstatement of Collateral
	 	 	130	 
	11.21 Limitation on Obligations of Foreign Obligors
	 	 	130	 
	11.22 Each Lender a PMP
	 	 	131	 
	11.23 Release of Guaranties and Collateral
	 	 	131	 
	11.24 ENTIRE AGREEMENT
	 	 	132	 






iii









 







SCHEDULES




	 	 	 

	1.01(a)
	 	Applicable Designee
	1.01(b)
	 	Foreign Borrower Sublimits
	1.01(c)
	 	Mandatory Cost Formulae
	1.01(d)
	 	Existing Letters of Credit
	1.01(e)
	 	L/C Issuer Sublimits
	2.01
	 	Commitments and Applicable Percentages
	5.11(d)
	 	Pension Plans
	5.12
	 	Subsidiaries; Other Equity Investments
	5.16
	 	Identification Numbers for Designated Borrowers that are Foreign Subsidiaries
	6.18
	 	Post-Closing Matters
	7.01
	 	Existing Liens
	7.02
	 	Existing Investments
	7.03
	 	Existing Indebtedness
	7.08(e)
	 	Transactions with Affiliates
	7.09
	 	Burdensome Agreements
	11.02
	 	Administrative Agent's Office; Certain Addresses for Notices






EXHIBITS




	 	 	 

	 
	 	Form of
	 
	A
	 	Committed Loan Notice
	B
	 	Swing Line Loan Notice
	C
	 	Note
	D
	 	Compliance Certificate
	E
	 	Assignment and Assumption
	F-1
	 	Domestic Guaranty
	F-2
	 	Foreign Guaranty
	G-1
	 	Security Agreement
	G-2
	 	Pledge Agreement
	H-1
	 	Designated Borrower Request and Assumption Agreement
	H-2
	 	Designated Borrower Notice






iv









 






CREDIT AGREEMENT




     This CREDIT AGREEMENT (“Agreement”) is entered into as of July 8, 2011 among MOHAWK
INDUSTRIES, INC., a Delaware corporation (the “Company”), MOHAWK UNILIN INTERNATIONAL B.V.,
a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid)
incorporated under the laws of the Netherlands, having its official seat (statutaire zetel) in
Oisterwijk, the Netherlands and its office at Beneluxstraat 1 (5061 KD) Oisterwijk, the
Netherlands, and registered with the Trade Register of the Chambers of Commerce under number
17229715 (“Mohawk BV”), MOHAWK FOREIGN HOLDINGS, S.À R.L., a company organized and existing
under the laws of Luxembourg as a société a responsibilité limitée (“Mohawk Foreign”),
MOHAWK INTERNATIONAL HOLDINGS, S.À R.L., a company organized and existing under the laws of
Luxembourg as a société a responsibilité limitée (“Mohawk International”), UNILIN B.V.B.A.,
a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid)
organized under the laws of Belgium (“Unilin”), certain other Wholly Owned Foreign
Subsidiaries of the Company that are Restricted Subsidiaries that become party hereto pursuant to
Section 2.14 (each a “Designated Borrower” and, collectively, with Mohawk BV,
Mohawk Foreign, Mohawk International and Unilin, the “Foreign Borrowers” and together with
the Company, the “Borrowers”), each lender from time to time party hereto (collectively,
the “Lenders” and individually, a “Lender”), and BANK OF AMERICA, N.A., as
Administrative Agent, Swing Line Lender and an L/C Issuer.



     The Company has requested that the Lenders provide a revolving credit facility, and the
Lenders are willing to do so on the terms and conditions set forth herein.



     In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS




     1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings
set forth below:



     “2002 Indenture” means that certain indenture dated as of April 2, 2002 by and between
the Company, as issuer, and U.S. Bank National Association (as successor to Wachovia Bank, National
Association), as trustee.



     “2006 Indenture” means that certain indenture dated as of January 9, 2006 (as
supplemented by that first supplemental indenture dated as of January 17, 2006) by and between the
Company, as issuer, and U.S. Bank National Association (as successor to SunTrust Bank), as trustee.



     “Administrative Agent” means Bank of America in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent.



     “Administrative Agent’s Office” means, with respect to any currency, the
Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.02
with respect to such currency, or such other address or account with respect to such currency as
the Administrative Agent may from time to time notify to the Company and the Lenders.



     “Administrative Questionnaire” means an Administrative Questionnaire in substantially
the form provided by the Administrative Agent or any other form approved by the Administrative
Agent.



1









 





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



     “Aggregate Commitments” means the Commitments of all the Lenders. As of the Closing
Date, the Aggregate Commitments shall equal $900,000,000.



     “Agreement” means this Credit Agreement.



     “Alternative Currency” means each of Australian Dollars, Canadian Dollars, Euro,
Sterling and each other currency (other than Dollars) that is approved in accordance with
Section 1.06.



     “Alternative Currency Equivalent” means, at any time, with respect to any amount
denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as
determined by the Administrative Agent, the Swing Line Lender or the applicable L/C Issuer, as the
case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent
Revaluation Date) for the purchase of such Alternative Currency with Dollars.



     “Applicable Cash Balance” means, as of any date of determination, an amount equal to
the lesser of:



     (a) $250 million, and



     (b) the sum (without duplication) of:




     (i) 100% of the unrestricted cash and Cash Equivalents of the Company and its Domestic
Subsidiaries held in the United States as of such date of determination;




     plus




     (ii) an amount, as of such date of determination, equal to the lesser of:




     (A) 100% of the aggregate amount of unrestricted cash and Cash Equivalents of
Foreign Subsidiaries that are Restricted Subsidiaries; and




     (B) the aggregate principal amount of the outstanding Loans made to any of the
Foreign Borrowers;




     plus




     (iii) an amount, as of such date of determination, equal to 65% of (A) the amount
unrestricted cash and Cash Equivalents of the Foreign Subsidiaries that are Restricted
Subsidiaries less (B) the amount yielded by clause (ii) above;



     provided that if the Company certifies to the Administrative Agent and the
Lenders, in form and substance satisfactory to the Administrative Agent, as of the applicable date
of determination (it being understood that such certification shall be renewed on each successive
date of determination), that the Company is able to cause its Foreign Subsidiaries that are
Restricted Subsidiaries to dividend or distribute 100% of their unrestricted cash to the Company
without any tax liability with respect to such distributions or any other restrictions on such
distributions, then the percentage specified in clause (iii) above shall be changed from “65%”
to “100%”.




2











 





     “Applicable Designee” means any Affiliate of a Lender (including the Swing Line
Lender) designated thereby from time to time by written notice to and with the consent of the
Administrative Agent (which consent shall not be unreasonably withheld or delayed) to lend all or
any portion of such Lenders’ Applicable Percentage of Borrowings under this Agreement;
provided that no such designation shall relieve such Lender from its obligations to provide
any portion of a Borrowing required to be provided by such Lender hereunder. Schedule
1.01(a) sets forth the Applicable Designee of each Lender as of the Closing Date.



     “Applicable Facilities” means the collective reference to the revolving credit
facility established pursuant to Section 2.01, each Incremental Term Loan and each separate
loan facility established as Permitted Pari Passu Indebtedness.



     “Applicable Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s
Commitment at such time, subject to adjustment as provided in Section 2.18. If the
Commitment of each Lender and the obligation of each L/C Issuer to make L/C Credit Extensions have
been terminated pursuant to Section 8.02 or if the Aggregate Commitments have expired, then
the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of
such Lender most recently in effect, giving effect to any subsequent assignments. The initial
Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule
2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable.



     “Applicable Rate” means, from time to time, the following percentages per annum, based
upon the Consolidated Net Leverage Ratio as set forth in the most recent Compliance Certificate
received by the Administrative Agent pursuant to Section 6.02(b):



Applicable Rate




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Eurocurrency Rate	 	 
	Pricing	 	Consolidated Net	 	 	 	 	 	Loans/Letter of	 	Base
	Level	 	Leverage Ratio	 	Commitment Fee	 	Credit Fees	 	Rate Loans
	1
	 	 	<1.75:1	 	 	 	0.25	%	 	 	1.25	%	 	 	0.25	%
	2
	 	≥1.75:1 but <2.50:1	 	 	0.30	%	 	 	1.50	%	 	 	0.50	%
	3
	 	≥2.50:1 but <3.25:1	 	 	0.35	%	 	 	1.75	%	 	 	0.75	%
	4
	 	 	≥3.25:1	 	 	 	0.40	%	 	 	2.00	%	 	 	1.00	%






     Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated
Net Leverage Ratio shall become effective as of the first Business Day immediately following the
date a Compliance Certificate is delivered pursuant to Section 6.02(b); provided,
however, that if a Compliance Certificate is not delivered when due in accordance with such
Section, then, upon the request of the Required Lenders, Pricing Level 4 shall apply as of the
first Business Day after the date on which such Compliance Certificate was required to have been
delivered and shall remain in effect until the date on which such Compliance Certificate is
delivered. The Applicable Rate in effect from the Closing Date until the first Business Day
immediately following the date a Compliance Certificate is delivered pursuant to Section
6.02(b) for the fiscal quarter ending September 30, 2011, shall be determined based upon
Pricing Level 2.



Notwithstanding anything to the contrary contained in this definition, the determination of the
Applicable Rate for any period shall be subject to the provisions of Section 2.10(b).




3









 








     “Applicable Time” means, with respect to any borrowings and payments in any
Alternative Currency, the local time in the place of settlement for such Alternative Currency as
may be determined by the Administrative Agent, the Swing Line Lender or the applicable L/C Issuer,
as the case may be, to be necessary for timely settlement on the relevant date in accordance with
normal banking procedures in the place of payment.



     “Applicant Borrower” has the meaning specified in Section 2.14.



     “Approved Fund” means any Fund 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” means Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan
Securities LLC, SunTrust Robinson Humphrey, Inc. and Wells Fargo Securities, LLC, each in their
capacity as a joint lead arranger and joint book manager.



     “Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.



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



     “Attributable Indebtedness” means, on any date, (a) in respect of any capital lease of
any Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease payments under the relevant lease that
would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Company and its Subsidiaries for the fiscal year ended December 31, 2010, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of the Company and its Subsidiaries, including the notes thereto.



     “Australian Dollars” means the lawful money of Australia.



     “Availability Period” means the period from and including the Closing Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments
pursuant to Section 2.06, and (c) the date of termination of the Commitment of each Lender
and of the obligation of the L/C Issuers to make L/C Credit Extensions pursuant to Section
8.02.



     “Available Increase Amount” means an amount equal to (a) $600,000,000 minus
(b) the aggregate principal amount of all Permitted Pari Passu Indebtedness incurred since the
Closing Date that is in excess of $250,000,000 in the aggregate.



     “Available Liquidity” means, as of any date of determination, the maximum Dollar
amount permitted to be drawn under the Commitments on such date plus the aggregate Dollar
amount of unrestricted cash and Cash Equivalents on the balance sheet of the Company and its
Restricted Subsidiaries as of such date of determination (it being understood and agreed that if
such date of determination is the date upon which a Foreign Subsidiary is designated (or
redesignated) as an



4









 





Unrestricted Subsidiary, the aggregate Dollar amount of unrestricted cash and Cash Equivalents
of the Subsidiary being so designated and its Subsidiaries shall not be included for purposes of
determining the Available Liquidity).




     “Bank of America” means Bank of America, N.A. and its successors.



     “Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a)
the Federal Funds Rate plus 1/2 of 1% , (b) the rate of interest in effect for such day as
publicly announced from time to time by Bank of America as its “prime rate”, and (c) the
Eurocurrency Rate plus 1.00%. The “prime rate” is a rate set by Bank of America based upon
various factors including Bank of America’s costs and desired return, general economic conditions
and other factors, and is used as a reference point for pricing some loans, which may be priced at,
above, or below such announced rate. Any change in such prime rate announced by Bank of America
shall take effect at the opening of business on the day specified in the public announcement of
such change.



     “Base Rate Committed Loan” means a Committed Loan that is a Base Rate Loan.



     “Base Rate Loan” means a Loan that bears interest based on the Base Rate. All Base
Rate Loans shall be denominated in Dollars and shall be made to the Company and not to any other
Borrower.



     “Borrower” and “Borrowers” each has the meaning specified in the introductory
paragraph hereto.



     “Borrower Materials” has the meaning specified in Section 6.02.



     “Borrowing” means a Committed Borrowing or a Swing Line Borrowing, as the context may
require.



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office with respect to Obligations denominated in Dollars is
located and:



     (a) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect
of any such Eurocurrency Rate Loan, or any other dealings in Dollars to be carried out pursuant to
this Agreement in respect of any such Eurocurrency Rate Loan, means any such day on which dealings
in deposits in Dollars are conducted by and between banks in the London interbank eurodollar
market;



     (b) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of
any such Eurocurrency Rate Loan, or any other dealings in Euro to be carried out pursuant to this
Agreement in respect of any such Eurocurrency Rate Loan, means a TARGET Day;



     (c) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in a currency other than Dollars or Euro, means any such day on which dealings in
deposits in the relevant currency are conducted by and between banks in the London or other
applicable offshore interbank market for such currency; and



     (d) if such day relates to any fundings, disbursements, settlements and payments in a currency
other than Dollars or Euro in respect of a Eurocurrency Rate Loan denominated in a currency other
than Dollars or Euro, or any other dealings in any currency other than Dollars or Euro to be
carried



5









 





out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan (other than any
interest rate settings), means any such day on which banks are open for foreign exchange business
in the principal financial center of the country of such currency.




     “CAM Exchange” means the exchange of the CAM Exchange Parties’ interests provided for
in Section 10.01.



     “CAM Exchange Date” means the date on which (a) there shall occur any event described
in Section 8.01(f) or (g) with respect to any Loan Party or (b) an acceleration of
the maturity of the Loans pursuant to Section 8.02 shall occur or (c) an acceleration of
any Permitted Pari Passu Indebtedness pursuant to the terms thereof shall occur.



     “CAM Exchange Party” means, as of the CAM Exchange Date, any Person that is a Lender
or a lender under, or other holder of, any outstanding Permitted Pari Passu Indebtedness and/or
Incremental Term Loans, as applicable.



     “CAM Percentage” means, as to each CAM Exchange Party a fraction, expressed as a
decimal to 10 decimal places, of which (a) the numerator shall be the aggregate Designated
Obligations owed to such CAM Exchange Party, and (b) the denominator shall be the aggregate
Designated Obligations owed to all the CAM Exchange Parties. For purposes of computing any CAM
Percentage, all Designated Obligations which shall be denominated in an Alternative Currency shall,
for purposes of this calculation, be deemed converted into Dollars at the Spot Rate in effect on
the CAM Exchange Date.



     “Canadian Dollars” means the lawful money of Canada.



     “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative
Agent or directly to an L/C Issuer, for the benefit of the Administrative Agent, any L/C Issuer or
the Swing Line Lender (as applicable) and the Lenders, as the context may indicate, as collateral
for L/C Obligations, Obligations in respect of Swing Line Loans, or obligations of Lenders to fund
participations in respect of either thereof (as the context may require), cash or deposit account
balances or, if the applicable L/C Issuer or Swing Line Lender benefitting from such collateral
shall agree in its sole discretion, other credit support, in each case pursuant to documentation in
form and substance satisfactory to (a) the Administrative Agent (but only if the Administrative
Agent is party to such Cash Collateral arrangement) and (b) the applicable L/C Issuer or the Swing
Line Lender (as applicable). “Cash Collateral” shall have a meaning correlative to the
foregoing and shall include the proceeds of such cash collateral and other credit support.



     “Cash Equivalents” means, at any time, (a) any evidence of Indebtedness with a
maturity date of ninety (90) days or less issued or directly and fully guaranteed or insured by the
United States or any agency or instrumentality thereof; provided that the full faith and
credit of the United States is pledged in support thereof; (b) certificates of deposit or bankers’
acceptances with a maturity of ninety (90) days or less of any financial institution that is a
member of the Federal Reserve System having combined capital and surplus and undivided profits of
not less than $1,000,000,000; (c) commercial paper (including variable rate demand notes) with a
maturity of ninety (90) days or less issued by a corporation (except an Affiliate of any Loan
Party) organized under the laws of any State of the United States or the District of Columbia and
rated at least A-1 by S&P or at least P-1 by Moody’s; (d) repurchase obligations with a term of not
more than thirty (30) days for underlying securities of the types described in clause (a) above
entered into with any financial institution having combined capital and surplus and undivided
profits of not less than $1,000,000,000; (e) repurchase agreements and reverse repurchase
agreements relating to marketable direct obligations issued or unconditionally guaranteed by the
United States or issued by any governmental agency thereof and backed by the full faith and credit
of the United States, in each case



6









 





maturing within ninety (90) days or less from the date of acquisition; provided that
the terms of such agreements comply with the guidelines set forth in the Federal Financial
Agreements of Depository Institutions with Securities Dealers and Others, as adopted by the
Comptroller of the Currency on October 31, 1985; (f) investments in money market funds and mutual
funds which invest substantially all of their assets in securities of the types described in
clauses (a) through (e) above; (g) investments in bond and equity funds which funds have a
Morningstar rating of four or higher and a term not in excess of twelve months; and (h) any other
investments made by the Loan Parties or their Domestic Subsidiaries in securities having a maturity
of twelve months or less which investments are made in accordance with the terms of an internal
investment policy which policy shall be reasonably satisfactory to the Administrative Agent. For
the avoidance of doubt, auction rate securities shall not constitute “Cash Equivalents”.




     “Cash Management Agreement” means any agreement to provide cash management services,
including treasury, depository, overdraft, credit or debit card, purchasing card, electronic funds
transfer and other cash management arrangements in the ordinary course of business of the Company
and its Subsidiaries, but excluding any such agreement providing for overdraft services or
overdraft financing that may remain outstanding for more than three Business Days.



     “Cash Management Bank” means (a) any Person that, at the time it enters into a Cash
Management Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such
Cash Management Agreement, and (b) any Lender (or any Affiliate of such a Lender) that is a party
to a Cash Management Agreement on the Closing Date, in its capacity as a party to such Cash
Management Agreement.



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



     “Change of Control” means an event or series of events by which:



     (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary
or administrator of any such plan) other than the Permitted Holders becomes the “beneficial owner”
(as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a
person or group shall be deemed to have “beneficial ownership” of all securities that such person
or group has the right to acquire, whether such right is exercisable immediately or only after the
passage of time (such right, an “option right”)), directly or indirectly, of 30% or more of
the Equity Interests of the Company entitled to vote for members of the board of directors or
equivalent governing body of the Company on a fully-diluted basis (and taking into account all such
securities that such person or group has the right to acquire pursuant to any option right);



     (b) during any period of 12 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of the Company cease to be composed of individuals (x)
(i)



7









 





who were members of that board or equivalent governing body on the first day of such period,
(ii) whose election or nomination to that board or equivalent governing body was approved by
individuals referred to in clause (i) above constituting at the time of such election or nomination
at least a majority of that board or equivalent governing body or (iii) whose election or
nomination to that board or other equivalent governing body was approved by individuals referred to
in clauses (i) and (ii) above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body (excluding, in the case of both clause (ii) and
clause (iii), any individual whose initial nomination for, or assumption of office as, a member of
that board or equivalent governing body occurs as a result of an actual or threatened solicitation
of proxies or consents for the election or removal of one or more directors by any person or group
other than a solicitation for the election of one or more directors by or on behalf of the board of
directors) or (y) who were appointed by the Permitted Holders; or




     (c) except as otherwise permitted pursuant to Section 7.04 or Section 7.05,
the failure of the Company to, directly or indirectly, own and control 100% of the Equity Interests
of each Borrower (other than the Company); or



     (d) the occurrence of any “change in control” (or equivalent) under any loan facility
constituting Permitted Pari Passu Indebtedness.



     “Closing Date” means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 11.01.



     “Code” means the Internal Revenue Code of 1986.



     “Collateral” means, collectively, all of the personal property of the Company, any
Domestic Guarantor or any other Person in which the Administrative Agent is granted a Lien under
any Security Instrument as security for all or any portion of the Obligations.



     “Collateral Reinstatement Event” means, after a release of Collateral as provided for
in Section 11.20(a), the occurrence of any of the following: (a) both (i) the Moody’s
Rating is Ba2 and (ii) the S&P Rating is BB, (b) (i) the Moody’s Rating is Ba3 or lower and (ii)
the S&P Rating is below BBB- (with a stable outlook or better) or (c) (i) the Moody’s Rating is
below Baa3 (with a stable outlook or better) and (ii) the S&P Rating is BB- or lower;
provided that for purposes of determining whether a Collateral Reinstatement Event shall
have occurred, if, for any reason, (x) only one of either the Moody’s Rating or the S&P Rating is
available, then the applicable rating provided by such rating agency (or its equivalent for the
other agency) shall apply for both rating agencies, unless another similar rating from another
rating agency is being provided pursuant to Section 6.17, in which case such rating shall
be substituted for the unavailable rating, or (y) neither the Moody’s Rating, the S&P Rating nor
another similar rating from another rating agency being provided pursuant to Section 6.17
is available, then a Collateral Reinstatement Event shall be deemed to have occurred. For purposes
of this definition, if either the Moody’s Rating or the S&P Rating is at any time available, but
the Company has requested such rating not be issued and the Company has given notice of such
request to the Administrative Agent pursuant to Section 6.03(e), such rating shall be
deemed to be unavailable at such time to the extent replaced with another similar rating from
another rating agency being provided pursuant to Section 6.17.



     “Collateral Release Event” means the satisfaction of each of the following conditions:
(a) either (i) both (A) the Moody’s Rating is Baa3 or better (with a stable outlook or better) and
(B) the S&P Rating is BB+ or better (with a stable outlook or better), or (ii) both (A) the Moody’s
Rating is Ba1 or better (with a stable outlook or better) and (B) the S&P Rating is BBB- or better
(with a stable outlook or better), (b) no Default exists, and (c) the Administrative Agent’s
receipt of a certificate from the Company certifying to the foregoing.



8









 





     “Collateral Release Period” means, each period commencing with the occurrence of a
Collateral Release Event and continuing until the occurrence of the next Collateral Reinstatement
Event, if any, immediately following such Collateral Release Event.



     “Commitment” means, as to each Lender, its obligation to (a) make Committed Loans to
the Borrowers pursuant to Section 2.01, (b) purchase participations in L/C Obligations, and
(c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time
outstanding not to exceed the Dollar amount set forth opposite such Lender’s name on Schedule
2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.



     “Committed Borrowing” means a borrowing consisting of simultaneous Committed Loans of
the same Type, in the same currency and, in the case of Eurocurrency Rate Loans, having the same
Interest Period made by each of the Lenders pursuant to Section 2.01.



     “Committed Loan” has the meaning specified in Section 2.01.



     “Committed Loan Notice” means a notice of (a) a Committed Borrowing, (b) a conversion
of Committed Loans from one Type to the other, or (c) a continuation of Eurocurrency Rate Loans,
pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of
Exhibit A or other form acceptable to the Administrative Agent in its sole discretion.



     “Company” has the meaning specified in the introductory paragraph hereto.



     “Compliance Certificate” means a certificate substantially in the form of Exhibit
D.



     “Consolidated Cash Interest Expense” means, for any period, Consolidated Interest
Expense that is paid or payable in cash during such period.



     “Consolidated EBITDA” means, for any period for the Company and its Restricted
Subsidiaries, on a consolidated basis, an amount equal to Consolidated Net Income for such period,



     plus



     (a) the sum of following to the extent deducted in calculating such Consolidated Net Income
for such period (without duplication):




     (i) Consolidated Interest Expense,




     (ii) the provision for taxes, based on income, profits or capital, including without
limitation, federal, state and local income taxes, franchise, value added and excise taxes
and foreign withholding taxes, and penalties and interest related to such taxes or arising
from any tax examination,




     (iii) depreciation and amortization expense, including, without limitation,
amortization of deferred financing fees and intangibles,




     (iv) other non-recurring expenses (including non-cash items relating to the impairment
of goodwill, non-cash write-down of intangibles, non-cash restructuring charges and non-cash
charges related to plant closures) reducing such Consolidated Net Income which do not
represent a cash item in such period or any future period,



9









 






     (v) any (A) expenses or charges related to any issuance of Equity Interests,
Investment, Disposition, casualty event, recapitalization or the incurrence or repayment of
Indebtedness permitted hereunder, including a refinancing thereof (in the case of any of the
foregoing, whether or not consummated) and any amendment or modification to the terms of any
such transactions, and (B) restructuring charges or reserves and business optimization
expenses, including any restructuring costs and integration costs incurred in connection
with Investments permitted under Section 7.02(f)(ii), (g), (h) or
(i) after the Closing Date (whether or not consummated), project start-up costs,
costs incurred in connection with any strategic initiatives, costs related to the closure
and/or consolidation of facilities, retention, recruiting, relocation, severance and signing
bonuses and expenses, in each case to the extent paid (x) in cash during the applicable
period and (y) within one (1) year of the event to which such fee, expense or charge
relates, provided that the aggregate amount permitted to be added to Consolidated
Net Income pursuant to this part (v) for any period shall not exceed 5% of Consolidated
EBITDA as calculated by this definition (but without adding back any amounts pursuant to
this clause (a)(v)) for such period; and




     (vi) any expenses, charges or losses that are covered by indemnification or other
reimbursement provisions in connection with any Investment or Disposition permitted
hereunder to the extent actually reimbursed (but only to the extent not reflected as revenue
or income in Consolidated Net Income and to the extent that the related expense, charge or
loss was deducted in the determination of Consolidated Net Income),




     (vii) expenses, charges or losses with respect to liability or casualty events or
business interruption to the extent covered by insurance and actually reimbursed (but only
to the extent not reflected as revenue or income in Consolidated Net Income and to the
extent that the related expense, charge or loss was deducted in the determination of
Consolidated Net Income), and




     (viii) any other non-cash expenditure, charge or loss (including without limitation,
the impact of purchase accounting and amount of any compensation deduction as the result of
any grant of stock or stock equivalents to employees, officers, directors or consultants),
excluding any non-cash expenditure, charge or loss relating to write-offs, write-downs or
reserves with respect to accounts receivable and inventory,



minus




     (b) the following to the extent included in calculating such Consolidated Net Income for such
period (without duplication):




     (i) federal, state, local and foreign income tax credits,




     (ii) interest income, and




     (iii) all non-cash items increasing Consolidated Net Income (excluding gains relating
to write-ups, or decreases in reserves, with respect to accounts receivable and inventory).



     For purposes of this Agreement and the other Loan Documents, Consolidated EBITDA shall be
adjusted on a pro forma basis, in a manner reasonably acceptable to the Administrative Agent, to
include, as of the first day of any applicable period, any Investments to the extent consisting of
an acquisition of any Person or all or substantially all of the business or a line of business of
any Person (other than an Unrestricted Subsidiary) that is permitted under Section
7.02(f)(ii), (g), (h) or (i) and Dispositions permitted under this
Agreement, including, without duplication:



10









 






     (x) adjustments permitted to be recognized in pro forma financial statements prepared
in accordance with Regulation S-X of the Securities Act of 1933, and




     (y) the amount of net cost savings and operating expense reductions projected by the
Company in good faith to be realized as a result of specified actions taken or to be taken
(in the good faith determination of the Company) in connection with any acquisition
constituting an Investment permitted under Section 7.02(f)(ii), (g),
(h) or (i), any other acquisition permitted hereunder or any Disposition
(each a “Specified Transaction”) by the Company or any Restricted Subsidiary
permitted hereunder, net of the amount of actual benefits realized during such period that
are otherwise included in the calculation of Consolidated EBITDA from such actions, so long
as (A) such net cost savings and operating expense reductions are factually supportable,
identifiable and reasonably expected to be realized within 12 months of such Specified
Transaction, (B) an authorized financial officer of the Company provides to the
Administrative Agent reasonably detailed computations of such net cost savings and operating
expense reductions in a certificate executed by a Responsible Officer stating that such
adjustment or adjustments are based on the reasonable and good faith belief of such officer
at the time of the execution, (C) the aggregate amount of such net cost savings and
operating expense reductions for such period does not exceed 5% of Consolidated EBITDA as
calculated by this definition for such period (but prior to giving effect to this clause
(y)), and (D) such net cost savings and operating expense reductions are approved by
Administrative Agent in its reasonable discretion; provided that no cost savings or
operating expense reductions shall be added pursuant to this clause (y) to the extent
duplicative of any expenses or charges otherwise added to Consolidated EBITDA, whether
through a pro forma adjustment or otherwise, for such period.



     “Consolidated Interest Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated EBITDA for the period of the four consecutive fiscal quarters ending on
or immediately prior to such date to (b) Consolidated Cash Interest Expense for the period of the
four consecutive fiscal quarters ending on or immediately prior to such date.



     “Consolidated Interest Expense” means, for any period for the Company and its
Restricted Subsidiaries, the sum (without duplication) of (a) all interest, premium
payments, debt discount, fees, charges and related expenses in connection with borrowed money
(including capitalized interest) or in connection with the deferred purchase price of assets, in
each case to the extent treated as interest in accordance with GAAP, (b) the portion of rent
expense with respect to such period under capital leases that is treated as interest in accordance
with GAAP and (c) to the extent not reflected in clause (a) or (b) above, (i) net payments, if any,
made (less net payments, if any, received) pursuant to interest rate Swap Contracts with
respect to Indebtedness, (ii) any losses on hedging obligations or other derivative instruments
entered into for the purpose of hedging interest rate risk, net of interest income and gains on
such hedging obligations, and (iii) all commissions, discounts and other fees and charges owed with
respect to letters of credit or bankers’ acceptances.



     “Consolidated Net Funded Indebtedness” means, as of any date of determination, for the
Company and its Restricted Subsidiaries on a consolidated basis, (a) the sum of (i) the outstanding
principal amount of all obligations, whether current or long-term, for borrowed money (including
the Obligations) and all obligations evidenced by bonds, debentures, notes, loan agreements or
other similar instruments, (ii) all purchase money indebtedness, (iii) all direct obligations
arising under letters of credit (including standby and commercial), bankers’ acceptances, bank
guaranties, surety bonds and similar instruments, (iv) all obligations in respect of the deferred
purchase price of property or services (other than trade accounts payable in the ordinary course of
business), (v) all Attributable Indebtedness, (vi) without duplication, all Guarantees with respect
to outstanding Indebtedness of the types specified in clauses (i) through (v) above of Persons
other than the Company or any of its Restricted Subsidiaries, and



11









 





(vii) all Indebtedness of the types referred to in clauses (i) through (vi) above of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which the Company or a Restricted Subsidiary is a general partner or joint
venturer, unless such Indebtedness is expressly made non-recourse to the Company or such Restricted
Subsidiaries less (b) the Applicable Cash Balance as of such date of determination.




     “Consolidated Net Income” means, for any period, the net income of the Company and its
Restricted Subsidiaries (excluding extraordinary gains and extraordinary losses) for that period
determined in accordance with GAAP; provided that Consolidated Net Income shall exclude any
income (or loss) for such period for any Person that is not a Restricted Subsidiary except to the
extent of the aggregate amount of such net income actually distributed in cash by such Person
(including by any Unrestricted Subsidiary) during such period to the Company or a Restricted
Subsidiary as a dividend or other distribution.



     “Consolidated Net Leverage Ratio” means, as of any date of determination, the ratio of
(a) Consolidated Net Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period
of the four consecutive fiscal quarters ending on or immediately prior to such date.



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



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



     “Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.



     “Cumulative Available Amount” means, as of any date of determination, the sum of:



     (a) $250,000,000; plus



     (b) an amount equal to 100% of the Net Cash Proceeds received after the Closing Date by the
Company from the issuance and sale of common Equity Interests of the Company to Persons other than
the Company or any of its Subsidiaries that is not utilized or required to be utilized either (i)
to repay any Indebtedness or (ii) to make any Permitted Acquisition or other Investment other than
an Investment pursuant to Section 7.02(i); plus



     (c) an amount equal to the difference between (i) the cumulative amount of Excess Cash Flow
for each fiscal year ending after the Closing Date (commencing with the fiscal year ending December
31, 2011) less (ii) the cumulative amount of permanent repayments of Indebtedness required
to be made with Excess Cash Flow (or any similar term or concept used in the governing documents
for such Indebtedness) after the end of the fiscal year ending December 31, 2011.



     “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.



12









 





     “Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would be an Event of Default.



     “Default Rate” means (a) when used with respect to Obligations other than Letter of
Credit Fees and Eurocurrency Rate Loans, an interest rate equal to (i) the Base Rate plus
(ii) the Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum;
and (b) when used with respect to a Eurocurrency Rate Loan, a rate equal to the interest rate
(including any Applicable Rate and any Mandatory Cost) otherwise applicable to such Loan
plus 2% per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to
the Applicable Rate plus 2% per annum.



     “Defaulting Lender” means, subject to Section 2.18(b), any Lender that (a) has
failed to perform any of its funding obligations hereunder, including in respect of its Loans or
participations in respect of Letters of Credit or Swing Line Loans, within three Business Days of
the date required to be funded by it hereunder unless such Lender notifies the Administrative Agent
and the Company in writing that such failure is the result of such Lender’s determination that one
or more conditions precedent to funding (each of which conditions precedent, together with any
applicable default, shall be specifically identified in writing) has not been satisfied, (b) has
notified the Company or the Administrative Agent in writing that it does not intend to comply with
its funding obligations hereunder, or has made a public statement to that effect (unless such
notification or public statement relates to such Lender’s obligation to fund a Loan hereunder and
states that such position is based on such Lender’s determination that a condition precedent to
funding (which condition precedent, together with any applicable default, shall be specifically
identified in such writing or public statement) cannot be satisfied), (c) has failed, within three
Business Days after written request by the Administrative Agent or the Company, to confirm in a
manner satisfactory to the Administrative Agent and the Company that it will comply with its
funding obligations hereunder (provided that such Lender shall cease to be a Defaulting
Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative
Agent and the Company), or (d) has, or has a direct or indirect parent company that has, (i) become
the subject of a proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee,
administrator, assignee for the benefit of creditors or similar Person charged with reorganization
or liquidation of its business or a custodian appointed for it, or (iii) taken any action in
furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or
appointment; provided that a Lender shall not be a Defaulting Lender solely by virtue of
(x) the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect
parent company thereof by a Governmental Authority or (y) in the case of a solvent Lender, the
precautionary appointment of an administrator, guardian, custodian or other similar official by a
Governmental Authority or instrumentality thereof under or based on the law of the country where
such Lender is subject to home jurisdiction supervision if applicable law requires that such
appointment not be publicly disclosed, in any such case where such action does not result in or
provide such Lender 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 Lender (or such
Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts
or agreements made with such Lender. Any determination by the Administrative Agent that a Lender
is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent
manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section
2.18(b)) upon delivery of written notice of such determination to the Company, each L/C Issuer,
the Swing Line Lender and each Lender.



     “Designated Borrower” has the meaning specified in the introductory paragraph hereto.



     “Designated Borrower Notice” has the meaning specified in Section 2.14.



     “Designated Borrower Request and Assumption Agreement” has the meaning specified in
Section 2.14.



13









 





     “Designated Obligations” means (a) all Obligations of the Loan Parties in respect of
(i) accrued and unpaid (A) principal of and interest on the Loans, (B) Letter of Credit Fees and
(C) Commitment Fees, and (ii) all Unreimbursed Amounts (including the amounts of any funded L/C
Advances) and interest thereon, in each case whether or not the same shall at the time of any
determination be due and payable under the terms of the Loan Documents and (b) all obligations of
the Loan Parties in respect of accrued and unpaid (i) principal of and interest on Permitted Pari
Passu Indebtedness and (ii) fees payable to the lenders under, or holders of, Permitted Pari Passu
Indebtedness.



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by any Person, including
any sale, assignment, transfer or other disposal, with or without recourse, of any notes or
accounts receivable or any rights and claims associated therewith.



     “Disqualified Equity Interest” means any Equity Interest that, by its terms (or by the
terms of any security or other Equity Interests in to which it is convertible or for which it is
exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily
redeemable (other than solely for Equity Interests not constituting Disqualified Equity Interests),
pursuant to sinking fund obligations or otherwise except as a result of a change of control or
asset sale so long as any rights of the holders thereof upon the occurrence of a change of control
or asset sale event shall be subject to the prior repayment in full of the Loans and all other
Obligations that are accrued and payable and the termination of the Commitments and all outstanding
Letters of Credit (other than Extended Letters of Credit and any other Letter of Credit the
Outstanding Amount of which has been Cash Collateralized or back-stopped by a letter of credit or
other credit support in form and substance reasonably satisfactory to the Administrative Agent and
the applicable L/C Issuer), (b) is redeemable at the option of the holder thereof (other than
solely for Equity Interests not constituting Disqualified Equity Interests) in whole or in part,
(c) provides for the scheduled payments of dividends in cash or (d) is or becomes convertible into
or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified
Equity Interests, in each case, prior to the date that is 91 days after the Maturity Date;
provided that if such Equity Interests are issued pursuant to a plan for the benefit of
employees of the Company or any Restricted Subsidiary or by any such plan to such employees, such
Equity Interests shall not constitute Disqualified Equity Interests solely because they may be
required to be repurchased by the Company or any Restricted Subsidiary in order to satisfy the
applicable statutory or regulatory obligations.



     “Dollar” and “$” mean lawful money of the United States.



     “Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in
Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency,
the equivalent amount thereof in Dollars as determined by the Administrative Agent, the Swing Line
Lender or the applicable L/C Issuer, as the case may be, at such time on the basis of the Spot Rate
(determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such
Alternative Currency.



     “Domestic Guarantors” means, collectively, the Company and each Domestic Subsidiary
that is identified as a “Domestic Guarantor” on Schedule 5.12 or that becomes a party to
the Domestic Guaranty, whether pursuant to Section 6.14 or otherwise.



     “Domestic Guaranty” means that certain guaranty agreement made by the Domestic
Guarantors in favor of the Administrative Agent and the Secured Parties pursuant to which the
Domestic Guarantors Guarantee the Obligations, substantially in the form of Exhibit F-1.



     “Domestic Subsidiary” means any Subsidiary that is organized under the laws of any
political subdivision of the United States and is not otherwise a Foreign Subsidiary.



14









 





     “Domestic Swing Line Loan” has the meaning specified in Section 2.04(a).



     “Eligible Assignee” means any Person that meets the requirements to be an assignee
under Section 11.06(b)(iii), (v) and (vi) (subject to such consents, if
any, as may be required under Section 11.06(b)(iii)); provided that so long as any
Borrower organized under the laws of the Netherlands is a party hereto, each Eligible Assignee
shall be a PMP.



     “EMU Legislation” means the legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European currency.



     “Environmental Laws” means any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and discharges to waste or public systems.



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



     “Environmental Permit” means any permit, approval, identification number, license or
other authorization required under any Environmental Law.



     “Equity Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person
or warrants, rights or options for the purchase or acquisition from such Person of such shares (or
such other interests), and all of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are outstanding on any date of
determination.



     “ERISA” means the Employee Retirement Income Security Act of 1974.



     “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Company within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the
withdrawal of the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which such entity was a “substantial employer” as defined in Section
4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by the Company or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization, insolvency or
has been terminated; (d) the filing of a notice of intent to terminate or the treatment of a
Pension Plan amendment as a termination



15









 





under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to
terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042
of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; (g) the determination that any Pension Plan or Multiemployer Plan is considered
an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431
and 432 of the Code or Sections 303, 304 and 305 of ERISA; or (h) the imposition of any liability
under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon the Company or any ERISA Affiliate.




     “Euro” and “EUR” mean the lawful currency of the Participating Member States
introduced in accordance with the EMU Legislation.



     “Eurocurrency Rate” means,



     (a) for any Interest Period with respect to a Eurocurrency Rate Loan, the rate per annum equal
to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or
other commercially available source providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period, for deposits in the relevant currency (for
delivery on the first day of such Interest Period) with a term equivalent to such Interest Period
or, (ii) if such rate is not available at such time for any reason, then the “Eurocurrency Rate”
for such Interest Period shall be the rate per annum determined by the Administrative Agent to be
the rate at which deposits in the relevant currency for delivery on the first day of such Interest
Period in Same Day Funds in the approximate amount of the Eurocurrency Rate Loan being made,
continued or converted by Bank of America and with a term equivalent to such Interest Period would
be offered by Bank of America’s London Branch (or other Bank of America branch or Affiliate) to
major banks in the London or other offshore interbank market for such currency at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest
Period; and



     (b) for any interest calculation with respect to a Base Rate Loan or Domestic Swing Line Loan
on any date, the rate per annum equal to (i) BBA LIBOR, at approximately 11:00 a.m., London time
determined two Business Days prior to such date for Dollar deposits being delivered in the London
interbank market for a term of one month commencing that day or (ii) if such published rate is not
available at such time for any reason, the rate per annum determined by the Administrative Agent to
be the rate at which deposits in Dollars for delivery on the date of determination in Same Day
Funds in the approximate amount of the Base Rate Loan or Domestic Swing Line Loan being made or
maintained and with a term equal to one month would be offered by Bank of America’s London Branch
to major banks in the London interbank eurodollar market at their request at the date and time of
determination.



     “Eurocurrency Rate Loan” means a Committed Loan that bears interest at a rate based on
clause (a) of the definition of “Eurocurrency Rate”. Eurocurrency Rate Loans may be denominated in
Dollars or in an Alternative Currency. All Committed Loans denominated in an Alternative Currency
must be Eurocurrency Rate Loans.



     “Event of Default” has the meaning specified in Section 8.01.



     “Excess Cash Flow” means, for any fiscal year of the Company, the excess (if any) of
(a) Consolidated EBITDA for such fiscal year minus (b) the sum (for such fiscal
year, without duplication) of (i) Consolidated Interest Expense actually paid in cash by the
Company or any of its Restricted Subsidiaries, (ii) the aggregate amount of scheduled or voluntary
principal payments or repayments of Indebtedness (other than mandatory prepayments, if any, of any
Incremental Term Loans) made by the



16









 





Company or any of its Restricted Subsidiaries during such fiscal year, but only to the extent
that such payments or repayments by their terms cannot be reborrowed or redrawn and do not occur in
connection with a refinancing of all or any portion of such Indebtedness, (iii) capital
expenditures and Permitted Acquisitions actually made in cash by the Company and its Restricted
Subsidiaries during such fiscal year, to the extent financed with internally generated funds or
extensions of credit under revolving credit facilities; (iv) all Taxes actually paid in cash by the
Company and its Restricted Subsidiaries, in each case on a consolidated basis determined in
accordance with GAAP, (v) all other items added to Consolidated Net Income in determining
Consolidated EBITDA pursuant to any of clauses (a)(v), (vi) and (vii) of the definition of
Consolidated EBITDA in this Agreement, to the extent paid in cash during such fiscal year, and (vi)
all other non-cash items increasing Consolidated EBITDA for such fiscal year.




     “Excluded Subsidiary” means, as of any date of determination, (a) any Subsidiary that
is not Wholly Owned, directly or indirectly, by the Company, (b) any Subsidiary that (i) is a
Receivables Financing Subsidiary , (ii) is prohibited by applicable Law from providing a Guarantee
of the Obligations or (iii) would require consent, approval, license or authorization from a
Governmental Authority or other Person in order to provide a Guarantee of the Obligations, which
such consent, approval, license or authorization has not been obtained from any such Governmental
Authority or other Person after the Company’s use of commercially reasonable efforts so to obtain;
and (c) any Foreign Subsidiary, if both the Administrative Agent and the Company reasonably
determine, that the cost and the consequences (including any adverse tax consequences) of obtaining
a Guarantee from such Foreign Subsidiary is excessive in relation to the benefits afforded thereby.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, any L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of any
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the Laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar
tax imposed by any other jurisdiction in which such Borrower is located, (c) any backup withholding
tax that is required by the Code to be withheld from amounts payable to a Lender that has failed to
comply with clause (A) of Section 3.01(e)(ii), (d) in the case of a Foreign Lender (other
than an assignee pursuant to a request by the Company under Section 11.13), any United
States withholding tax that (i) is required to be imposed on amounts payable to such Foreign Lender
pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or designates
a new Lending Office) or (ii) is attributable to such Foreign Lender’s failure or inability (other
than as a result of a Change in Law) to comply with clause (B) of Section 3.01(e)(ii),
except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time
of designation of a new Lending Office (or assignment), to receive additional amounts from such
Borrower with respect to such withholding tax pursuant to Section 3.01(a)(ii) or
(iii) and (e) any Taxes imposed under FATCA (or any amended or successor version of FATCA
that is substantively comparable and not materially more onerous to comply with). Notwithstanding
anything to the contrary contained in this definition, “Excluded Taxes” shall not include any
withholding tax imposed at any time on payments made by or on behalf of a Foreign Obligor to any
Lender hereunder or under any other Loan Document, provided that such Lender shall have
complied with Section 3.01(e)(i).



     “Existing Indentures” means, collectively, the 2002 Indenture and the 2006 Indenture.



     “Existing Letters of Credit” means the Letters of Credit set forth on Schedule
1.01(d).



     “Existing Loan Agreement” means that certain Loan and Security Agreement dated as of
September 2, 2009 among the Company and certain of its Subsidiaries, as borrowers, certain
Subsidiaries



17









 





of the Company party thereto, as guarantors, the lenders party thereto and Wells Fargo Bank,
National Association, as agent.




     “Extended Letter of Credit” has the meaning specified in Section 2.03(a)(ii).



     “FASB ASC” means the Accounting Standards Codification of the Financial Accounting
Standards Board.



     “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this
Agreement, and any current or future regulations or official interpretations thereof.



     “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day immediately following such day; provided that (a) if such day
is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions
on the immediately preceding Business Day as so published on the immediately following Business
Day, and (b) if no such rate is so published on such immediately following Business Day, the
Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole
multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined
by the Administrative Agent.



     “Fee Letters” means the collective reference to (a) that certain fee letter agreement
dated as of June 1, 2011 among the Company, Bank of America and Merrill Lynch, Pierce, Fenner &
Smith Incorporated, (b) that certain fee letter agreement dated as of June 7, 2011 among the
Company, J.P. Morgan Securities LLC and JPMorgan Chase Bank, (c) that certain fee letter agreement
dated as of June 7, 2011 among the Company, Wells Fargo Securities, LLC and Wells Fargo Bank,
National Association and (d) that certain fee letter agreement dated as of June 7, 2011 among the
Company, SunTrust Robinson Humphrey, Inc. and SunTrust Bank.



     “First-Tier Foreign Subsidiary” means a Foreign Subsidiary all or any portion of whose
Equity Interests are owned directly by the Company or a Domestic Guarantor.



     “Foreign Borrower” has the meaning specified in the introductory paragraph hereto.



     “Foreign Borrower Sublimit” means, the lesser of (a) (i) with respect to each Foreign
Borrower on the Closing Date, an amount equal to the amount set forth opposite the name of such
Foreign Borrower on Schedule 1.01(b) and (ii) with respect to each Designated Borrower, an
amount agreed to by the Administrative Agent and the Company and set forth in the Designated
Borrower Notice applicable to such Designated Borrower and (b) the Aggregate Commitments. The
Foreign Borrower Sublimits are part of, and not in addition to, the Aggregate Commitments.



     “Foreign Guarantors” means, collectively, each Foreign Subsidiary that is party to the
Foreign Guaranty, whether on the Closing Date, as a result of compliance with Section 6.14
or otherwise.



     “Foreign Guaranty” means that certain guaranty agreement made by Foreign Guarantors in
favor of the Administrative Agent and the Secured Parties pursuant to which the Foreign Guarantors
Guarantee the Foreign Obligations, substantially in the form of Exhibit F-2.



     “Foreign Lender” means, with respect to any Borrower, any Lender that is organized
under the Laws of a jurisdiction other than that in which such Borrower is resident for tax
purposes (including such



18









 





a Lender when acting in the capacity of an L/C Issuer). For purposes of this definition, the
United States, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.




     “Foreign Obligations” means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Foreign Obligor arising under any Loan Document or otherwise with
respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against any Loan Party or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor
in such proceeding, regardless of whether such interest and fees are allowed claims in such
proceeding.



     “Foreign Obligor” means a Loan Party that is a Foreign Subsidiary.



     “Foreign Pledges” means, collectively, each of the pledge agreements entered into by
the Company, a Domestic Subsidiary and, if applicable, the First-Tier Foreign Subsidiary, in favor
of the Administrative Agent for the benefit of the Secured Parties, which grants a Lien on the
Equity Interests of any First-Tier Foreign Subsidiary that is a Foreign Borrower or a Foreign
Guarantor owned by the Company or such Domestic Subsidiary, governed by the Laws of the
jurisdiction in which such First-Tier Foreign Subsidiary is organized.



     “Foreign Subsidiary” means any Subsidiary that (a) is organized under the laws of a
jurisdiction other than the United States, or a state or political subdivision thereof including
the District of Columbia, (b) is a Subsidiary of a Subsidiary described in clause (a) or (c) is
organized under the laws of the United States or a state or political subdivision thereof including
the District of Columbia that is a disregarded entity for purposes of the Code and all of or
substantially all of the assets of which consist of Equity Interest of one or more Subsidiaries
described in clause (a) above.



     “Foreign Swing Line Loan” has the meaning specified in Section 2.04(a).



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



     “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect
to each L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C
Obligations with respect to Letters of Credit issued by such L/C Issuer, other than L/C Obligations
as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders
or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line
Lender, such Defaulting Lender’s Applicable Percentage of Swing Line Loans other than Swing Line
Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other
Lenders or Cash Collateralized in accordance with the terms hereof.



     “Fund” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its activities.



     “GAAP” means United States generally accepted accounting principles as in effect from
time to time.



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



19









 





regulatory or administrative powers or functions of or pertaining to government (including any
supra-national bodies such as the European Union or the European Central Bank).




     “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services for the purpose of
assuring the obligee in respect of such Indebtedness or other obligation of the payment or
performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of income or cash flow of
the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.



     “Guaranties” means, collectively, the Domestic Guaranty and the Foreign Guaranty.



     “Guarantors” means, collectively, the Domestic Guarantors and the Foreign Guarantors.



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



     “Hedge Bank” means any Person that, at the time it enters Swap Contract is a Lender or
an Affiliate of a Lender, in its capacity as a party to such Swap Contract.



     “IFRS” means international accounting standards within the meaning of IAS Regulation
1606/2002 to the extent applicable to the relevant financial statements delivered under or referred
to herein.



     “Increase Effective Date” has the meaning specified in Section 2.16(c).



     “Incremental Increase” has the meaning specified in Section 2.16(a).



     “Incremental Term Loan” has the meaning specified in Section 2.16(a).



     “Indebtedness” means, as to any Person at a particular time, without duplication, all
of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:



     (a) all obligations of such Person for borrowed money and all obligations of such Person
evidenced by bonds, debentures, notes, loan agreements or other similar instruments;




20











 





     (b) all direct or contingent obligations of such Person arising under letters of credit
(including standby, but excluding commercial), bankers’ acceptances (including any bankers’
acceptances arising from the drawing of commercial letters of credit), bank guaranties, surety
bonds and similar instruments;



     (c) net obligations of such Person under any Swap Contract;



     (d) all obligations of such Person to pay the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business and payable in accordance
with customary trade practices);



     (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or
being purchased by such Person (including indebtedness arising under conditional sales or other
title retention agreements), whether or not such indebtedness shall have been assumed by such
Person or is limited in recourse; provided that in the case of Indebtedness which has not
been assumed by such Person, the amount of the Indebtedness of such Person under this clause (e)
shall be deemed to be the lesser of (i) the fair market value of the property subject to such Lien
and (ii) the aggregate principal amount of the Indebtedness of such other Person secured thereby;



     (f) capital leases and Synthetic Lease Obligations;



     (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any
payment in respect of any Disqualified Equity Interest in such Person, valued, in the case of a
redeemable preferred interest, at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends; and



     (h) all Guarantees of such Person in respect of any of the foregoing.



     For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under
any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such
date. The amount of any capital lease or Synthetic Lease Obligation as of any date shall be deemed
to be the amount of Attributable Indebtedness in respect thereof as of such date.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnitees” has the meaning specified in Section 11.04(b).



     “Information” has the meaning specified in Section 11.07.



     “Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the
last day of each Interest Period applicable to such Loan and the Maturity Date; provided
that if any Interest Period for a Eurocurrency Rate 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; and (b) as to any Base Rate Loan (including a Swing Line Loan), the last Business
Day of each March, June, September and December, with the first such date being the last Business
Day of September, 2011, and the Maturity Date.



21









 





     “Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on
the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency
Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the
Company in its Committed Loan Notice; provided that:




     (i) any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the immediately following Business Day unless such Business Day falls
in another calendar month, in which case such Interest Period shall end on the immediately
preceding Business Day;




     (ii) 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 the calendar month at the
end of such Interest Period; and




     (iii) no Interest Period shall extend beyond the Maturity Date.



     “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person in another Person, whether by means of (a) the purchase or other acquisition of
capital stock or other securities of another Person, (b) a loan, advance or capital contribution
to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or
equity participation or interest in, another Person, including any partnership or joint venture
interest in such other Person and any arrangement pursuant to which the investor Guarantees
Indebtedness of such other Person, or (c) the purchase or other acquisition (in one transaction or
a series of transactions) of assets of another Person that constitute a business unit. For
purposes of covenant compliance, the amount of any Investment shall be the amount actually
invested, without adjustment for subsequent increases or decreases in the value of such Investment.



     “ISP” means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such
later version thereof as may be in effect at the time of issuance).



     “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit
Application, and any other document, agreement and instrument entered into by an L/C Issuer and the
Company (or any Restricted Subsidiary) or in favor of such L/C Issuer and relating to such Letter
of Credit.



     “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority.



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



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



22









 





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



     “L/C Issuer” means Bank of America, each other Lender that is listed on the signature
pages hereto as an “L/C Issuer” and any other Lender that becomes an L/C Issuer in accordance with
Section 2.03(m) hereof, each in its respective capacity as issuer of Letters of Credit
hereunder, or any successor issuer of Letters of Credit hereunder (whether pursuant to Section
2.03(m), 2.03(n), 9.06, 11.06 or otherwise), but excluding any Lender
that resigns or is removed as an L/C Issuer pursuant to the terms hereof (except to the extent such
Person has continuing rights and/or obligations with respect to Letters of Credit after such
resignation or removal). References to the L/C Issuer herein shall, as the context may indicate
(including with respect to any particular Letter of Credit, L/C Credit Extension, L/C Borrowing or
L/C Obligations), mean the applicable L/C Issuer, each L/C Issuer, any L/C Issuer, or all L/C
Issuers.



     “L/C Issuer Sublimit” means with respect to each L/C Issuer on the Closing Date, an
amount equal to the amount set forth opposite the name of such L/C Issuer on Schedule
1.01(e), as such amount may be changed after the Closing Date in a written agreement between
the Company and such L/C Issuer (which such agreement shall be promptly delivered to the
Administrative Agent upon execution) and (b) with respect to any Lender becoming a L/C Issuer after
the Closing Date, such amount as may be separately agreed in writing between such L/C Issuer and
the Company from time to time (which such agreement shall be promptly delivered to the
Administrative Agent upon execution), provided that the L/C Issuer Sublimit with respect to
any Person that ceases to be an L/C Issuer for any reason pursuant to the terms hereof shall be $0
(subject to the Letters of Credit of such Person remaining outstanding in accordance with the
provisions hereof).



     “L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.09. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn. The L/C Obligations of
(a) any Lender at any time shall be its Applicable Percentage of the total L/C Obligations at such
time, and (b) any particular L/C Issuer at any time shall mean the L/C Obligations allocable to
Letters of Credit issued by such L/C Issuer.



     “Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the Swing Line Lender.



     “Lending Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Company and the Administrative Agent.



     “Letter of Credit” means any standby letter of credit issued hereunder and shall
include the Existing Letters of Credit. Letters of Credit may be issued in Dollars or in an
Alternative Currency.



     “Letter of Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time generally in use by an L/C Issuer.



     “Letter of Credit Expiration Date” means the day that is seven days prior to the
Maturity Date then in effect (or, if such day is not a Business Day, the immediately preceding
Business Day).



23









 





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



     “Letter of Credit Sublimit” means the lesser of (a) $250,000,000 and (b) the Aggregate
Commitments. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate
Commitments.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or
other encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).



     “Limited Subsidiary” means a Restricted Subsidiary of the Company designated as such
on Schedule 5.12 or the most recent Compliance Certificate delivered by the Company
hereunder that (a) is not Wholly Owned by the Company, (b) was not acquired pursuant to a Permitted
Acquisition, (c) is not a Loan Party (and not required to become a Loan Party hereunder or under
any other Loan Document), (d) is consolidated in the financial statements of the Company and its
Subsidiaries, (e) has no Subsidiaries other than Subsidiaries that are themselves Limited
Subsidiaries and (f) has no Indebtedness other than Indebtedness permitted by Section
7.03(j).



     “Loan” means an extension of credit by a Lender to a Borrower under Article II
in the form of a Committed Loan or a Swing Line Loan and, where the context so requires,
Incremental Term Loans.



     “Loan Documents” means this Agreement, each Designated Borrower Request and Assumption
Agreement, each Note, the Guaranties, each Security Instrument, each Committed Loan Notice, each
Issuer Document, each Fee Letter, and any agreement creating or perfecting rights in Cash
Collateral pursuant to the provisions of Sections 2.03 or 2.17 of this Agreement.



     “Loan Parties” means, collectively, each Borrower and each Guarantor.



     “Mandatory Cost” means, with respect to any period, the percentage rate per annum
determined in accordance with Schedule 1.01(c).



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities (actual or contingent) or
financial condition of the Company and its Restricted Subsidiaries taken as a whole; (b) an
impairment of the ability of any Loan Party to perform any of its material obligations under any of
the Loan Documents to which it is a party; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against any Borrower or any Guarantor of any Loan
Document to which it is a party.



     “Material Subsidiary” means:



     (a) with respect to Domestic Subsidiaries, those Subsidiaries of the Company identified to the
Administrative Agent in writing that on an individual basis (calculated on a stand-alone basis,
without giving effect to Consolidated EBITDA or consolidated total assets (determined in accordance
with GAAP), in each case, attributable to the Subsidiaries of such identified Subsidiary) represent
(x) more than five percent (5%) of the Consolidated EBITDA of the Company and its Domestic
Subsidiaries for the four consecutive fiscal quarters most recently ended for which financial
statements have been delivered to the Administrative Agent pursuant to Section 6.01 or (y)
more than 5% the consolidated total assets of the Company and its Domestic Subsidiaries (determined
in accordance with GAAP) as of the



24









 




end of the fiscal quarter or fiscal year, as applicable, most recently ended for which
financial statements have been delivered to the Administrative Agent pursuant to Section
6.01; provided that (i) any Domestic Subsidiary that has a Subsidiary that is a
Material Subsidiary shall itself constitute a Material Subsidiary, and (ii) in the event that the
Domestic Subsidiaries that are Material Subsidiaries (after giving effect to clause (i) of this
proviso and any other designation pursuant to this clause (ii) of this proviso, but excluding
Excluded Subsidiaries and Limited Subsidiaries), when combined with the Company (on a standalone
basis), at any time represent less than ninety percent (90%) of (x) the Consolidated EBITDA of the
Company and its Domestic Subsidiaries (calculated solely for the Company and its Domestic
Subsidiaries that are not Excluded Subsidiaries or Limited Subsidiaries) for the four consecutive
fiscal quarters most recently ended for which financial statements have been delivered to the
Administrative Agent pursuant to Section 6.01 or (y) the consolidated total assets
(determined in accordance with GAAP) of the Company and its Domestic Subsidiaries (other than
Excluded Subsidiaries and Limited Subsidiaries) as of the end of the fiscal quarter or fiscal year,
as applicable, most recently ended for which financial statements have been delivered to the
Administrative Agent pursuant to Section 6.01, the Company shall designate additional
Domestic Subsidiaries as Material Subsidiaries in accordance with Section 2.19(a) so that
the thresholds in this proviso shall have been satisfied; and




     (b) with respect to Foreign Subsidiaries, any Foreign Subsidiary that is designated as such by
the Company in a writing executed by a Responsible Officer of the Company and delivered to the
Administrative Agent.



     For the avoidance of doubt, for purposes of calculations of Consolidated EBITDA in this
definition such calculations shall be made with respect solely to the Company and its Domestic
Subsidiaries (and, as provided herein, further excluding Excluded Subsidiaries and Limited
Subsidiaries) notwithstanding anything to the contrary in the definition of Consolidated EBITDA.



     “Maturity Date” means July 8, 2016; provided that if such date is not a
Business Day, the Maturity Date shall be the immediately preceding Business Day.



     “Maximum Foreign Borrower Sublimit” means the lesser of (a) $700,000,000 and (b) the
Aggregate Commitments. The Maximum Foreign Borrower Sublimit is part of, and not in addition to,
the Aggregate Commitments.



     “Mohawk Foreign” has the meaning specified in the introductory paragraph hereto,
having its registered at 10B, Rue des Mérovingiens, L-8070 Bertrange, Grand Duchy of Luxembourg,
registered with the Luxembourg Register of Commerce and Companies under number B-147.820 and having
a corporate capital of EUR 72,995,850.



     “Mohawk International” has the meaning specified in the introductory paragraph hereto,
having its registered at 10B, Rue des Mérovingiens, L-8070 Bertrange, Grand Duchy of Luxembourg,
registered with the Luxembourg Register of Commerce and Companies under number B-110.608 and having
a corporate capital of EUR 13,175.



     “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.



     “Moody’s Rating” means the corporate family rating or the senior unsecured rating,
whichever is in effect at such time (or any substantially similar successor rating, however styled)
of the Company and its Subsidiaries issued by Moody’s.



     “Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes or is obligated to make



25









 




contributions, or during the preceding five plan years, has made or been obligated to make
contributions on behalf of participants who are or were formerly employed by any of them.




     “Multiple Employer Plan” means a Plan which has two or more contributing sponsors
(including the Company or any ERISA Affiliate) at least two of whom are not under common control,
as such a plan is described in Section 4064 of ERISA.



     “Net Cash Proceeds” means with respect to any issuance and sale of common Equity
Interests, the gross cash proceeds received by any Loan Party or any of its Subsidiaries therefrom
less all reasonable and customary out-of-pocket legal, underwriting and other fees and
expenses incurred in connection therewith.



     “Note” means a promissory note made by the Borrowers in favor of a Lender evidencing
Loans made by such Lender to any Borrower, substantially in the form of Exhibit C.



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan
or Letter of Credit, Secured Cash Management Agreement or Secured Hedge Agreement, in each case
whether direct or indirect (including those acquired by assumption), absolute or contingent, due or
to become due, now existing or hereafter arising and including interest and fees that accrue after
the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any
Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such
interest and fees are allowed claims in such proceeding.



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



     “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.



     “Other Taxes” means 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
under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.



     “Outstanding Amount” means (a) with respect to Committed Loans on any date, the Dollar
Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of such Committed Loans occurring on such date; (b) with
respect to Swing Line Loans on any date, the Dollar Equivalent amount of the aggregate outstanding
principal amount thereof after giving effect to any borrowings and prepayments or repayments of
such Swing Line Loans occurring on such date; and (c) with respect to any L/C Obligations on any
date, the Dollar Equivalent amount of the aggregate outstanding amount of such L/C Obligations on
such date after giving effect to any L/C Credit Extension occurring on such date and any other
changes in the aggregate amount of the L/C Obligations as of such date, including as a result of
any reimbursements by the Company of Unreimbursed Amounts.



26









 





     “Overnight Rate” means, for any day,



     (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds
Rate and (ii) an overnight rate determined by the Administrative Agent, the applicable L/C Issuer,
or the Swing Line Lender, as the case may be, in accordance with banking industry rules on
interbank compensation; and



     (b) with respect to any amount denominated in an Alternative Currency, the greater of (i) an
overnight rate determined by the Administrative Agent, the applicable L/C Issuer, or the Swing Line
Lender, as the case may be, in accordance with banking industry rules on interbank compensation or
(ii) 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, the
applicable L/C Issuer, or the Swing Line Lender, as the case may be, in the applicable offshore
interbank market for such currency to major banks in such interbank market.



     “Participant” has the meaning specified in Section 11.06(d).



     “Participant Register” has the meaning specified in Section 11.06(d).



     “Participating Member State” means each state so described in any EMU Legislation.



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “Pension Act” means the Pension Protection Act of 2006.



     “Pension Funding Rules” means the rules of the Code and ERISA regarding minimum
required contributions (including any installment payment thereof) to Pension Plans or
Multiemployer Plans, as applicable, and set forth in, with respect to plan years ending prior to
the effective date of the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in
effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and 436 of the Code and
Sections 302, 303, 304 and 305 of ERISA.



     “Pension Plan” means any employee pension benefit plan (other than a Multiemployer
Plan) that is maintained or is contributed to by the Company and any ERISA Affiliate and is either
covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of
the Code.



     “Permitted Acquisition” means any non-hostile acquisition by the Company or any of its
Restricted Subsidiaries in the form of an acquisition of any Person or all or substantially all of
the business or a line of business of any Person (whether by the acquisition of all of the Equity
Interests of such Person, all or substantially all assets of such Person or any combination
thereof) if such acquisition meets all of the following requirements:



     (a) the Person or business to be acquired, upon its acquisition, shall be (or be a part of) a
Restricted Subsidiary in a line of business permitted under Section 7.07 and (i) if such
Person is a Domestic Subsidiary that is a Material Subsidiary and not an Excluded Subsidiary, such
Person shall comply with Section 6.14(b) and (c) (in each case, within the
timeframe provided therein) or (ii) if such Person is a Foreign Subsidiary and is required to do so
under Section 6.14(d) or Section 7.04(c) (in each case, within the timeframe
provided therein), such Person shall take all such actions and provide such documentation as
reasonably requested by the Administrative Agent in order for such Person to become a Foreign
Guarantor;



27









 





     (b) if such transaction is a merger or consolidation such transaction shall comply with
Section 7.04(c);



     (c) evidence reasonably satisfactory to the Administrative Agent of compliance on a pro forma
basis (both immediately prior to consummation of such acquisition and immediately after giving
effect thereto and any Indebtedness incurred, assumed and/or repaid in connection therewith) with
each of the financial covenants contained in Section 7.12;



     (d) except in the case of an acquisition the consideration for which consists solely of Equity
Interests of the Company, the Available Liquidity shall be no less than $150,000,000 immediately
after giving effect to any such acquisition (and any Borrowings in connection therewith); and



     (e) no Default shall have occurred and be continuing both immediately before and immediately
after giving effect to such acquisition and any Indebtedness incurred or assumed in connection
therewith.



     “Permitted Holders” means: (a) any of (or any combination of) Jeffrey S. Lorberbaum
and his siblings (whether natural or adopted); (b) any of the immediate family members of any
individual referred to in clause (a) consisting of such individual’s spouse and lineal descendants
(whether natural or adopted); (c) any trusts established for the sole benefit of any of the
foregoing individuals; and (d) any corporation, partnership, limited liability company or other
legal entity of which all of the outstanding Equity Interests are owned directly or indirectly, by
any of the Persons (or any combination of the Persons) referred to in clauses (a) through (c)
above.



     “Permitted Pari Passu Indebtedness” means Indebtedness of any of the Loan Parties in
the form of one or more loan facilities incurred after the Closing Date; provided that such
Indebtedness shall be subject to each of the following conditions:



     (a) the aggregate initial principal amount of such Indebtedness incurred since the Closing
Date shall not at any time exceed $850,000,000 minus the aggregate initial principal amount
of all Incremental Increases incurred hereunder;



     (b) immediately before and after giving effect to each incurrence of such Indebtedness, the
Company and its Restricted Subsidiaries are in pro forma compliance with the financial covenants
contained in Section 7.12 and no Default shall have occurred and be continuing;



     (c) such Indebtedness is secured on a pari passu basis with the Obligations by a Lien solely
on the Collateral securing the Obligations on terms reasonably satisfactory to the Administrative
Agent, including an intercreditor agreement, which shall include provisions substantially similar
to those in Article X, and other additional documentation, in each case, reasonably
satisfactory to the Administrative Agent;



     (d) the covenants, defaults and other similar non-economic provisions applicable to any such
Indebtedness shall not (i) in the reasonable determination of the Administrative Agent, be
materially less favorable to the Lenders than the terms of the then existing Loan Documents without
the express written consent of the Required Lenders or (ii) contravene any of the terms of the then
existing Loan Documents;



     (e) no more than $100,000,000 of the aggregate principal amount of such Indebtedness incurred
since the Closing Date may have a maturity earlier than the Maturity Date; and



     (f) no Subsidiary of the Company other than a Loan Party shall be obligated, either primarily
or as a guarantor or otherwise, with respect to such Indebtedness.



28









 





     “Permitted Receivables Financing” means any transaction or series of transactions that
may be entered into by the Company or any Restricted Subsidiary pursuant to which it sells, conveys
or contributes to capital or otherwise transfers (which sale, conveyance, contribution to capital
or transfer may include or be supported by the grant of a security interest in) Receivables or
interests therein and all collateral securing such Receivables, all contracts and contract rights,
purchase orders, security interests, financing statements or other documentation in respect of such
Receivables, any guarantees, indemnities, warranties or other obligations in respect of such
Receivables, any other assets that are customarily transferred or in respect of which security
interests are customarily granted in connection with asset securitization transactions involving
receivables similar to such Receivables and any collections or proceeds of any of the foregoing and
any deposit account or securities account into which collections in respect of the foregoing may be
deposited (collectively, the “Related Assets”), all of which such sales, conveyances,
contributions to capital or transfers shall be made by the transferor for fair value as reasonably
determined by the Company (calculated in a manner typical for such transactions including a fair
market discount from the face value of such Receivables) (a) to a trust, partnership, corporation
or other Person (other than the Company or any Subsidiary (other than any Receivables Financing
Subsidiary)), which transfer is funded in whole or in part, directly or indirectly, by the
incurrence or issuance by the transferee or any successor transferee of Indebtedness, fractional
undivided interests or other securities that are to receive payments from, or that represent
interests in, the cash flow derived from such Receivables and Related Assets or interests in such
Receivables and Related Assets, or (b) directly to one or more investors or other purchasers (other
than any Borrower or any Subsidiary), it being understood that a Permitted Receivables Financing
may involve (i) one or more sequential transfers or pledges of the same Receivables and Related
Assets, or interests therein (such as a sale, conveyance or other transfer to any Receivables
Financing Subsidiary followed by a pledge of the transferred Receivables and Related Assets to
secure Indebtedness incurred by the Receivables Financing Subsidiary), and all such transfers,
pledges and Indebtedness incurrences shall be part of and constitute a single Permitted Receivables
Financing, and (ii) periodic transfers or pledges of Receivables and/or revolving transactions in
which new Receivables and Related Assets, or interests therein, are transferred or pledged upon
collection of previously transferred or pledged Receivables and Related Assets, or interests
therein, provided that any such transactions shall provide for recourse to any Restricted
Subsidiary (other than any Receivables Financing Subsidiary) or any Borrower (as applicable) only
in respect of the cash flows in respect of such Receivables and Related Assets and to the extent of
breaches of representations and warranties relating to the Receivables, dilution of the
Receivables, customary indemnities and other customary securitization undertakings in the
jurisdiction relevant to such transactions.



     The “amount” or “principal amount” of any Permitted Receivables Financing shall be deemed at
any time to be (1) the aggregate principal or stated amount of the Indebtedness, fractional
undivided interests (which stated amount may be described as a “net investment” or similar term
reflecting the amount invested in such undivided interest) or other securities incurred or issued
pursuant to such Permitted Receivables Financing, in each case outstanding at such time, or (2) in
the case of any Permitted Receivables Financing in respect of which no such Indebtedness,
fractional undivided interests or securities are incurred or issued, the cash purchase price paid
by the buyer (other than any Receivables Financing Subsidiary) in connection with its purchase of
Receivables less the amount of collections received by the Company or any Restricted Subsidiary in
respect of such Receivables and paid to such buyer, excluding any amounts applied to purchase fees
or discount or in the nature of interest.



     “Permitted Receivables Financing Date” means any date on which (a) both (i) the
Moody’s Rating is Baa3 (with a stable outlook or better) or higher and (ii) the S&P Rating is BBB-
(with a stable outlook or better) or higher, (b) no Default exists, and (c) a Responsible Officer
of the Company has certified each of the foregoing to the Administrative Agent.



29









 





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



     “Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA
(including a Pension Plan), maintained for participants who are current or former employees of the
Company or any such Plan to which the Company is required to contribute on behalf of such
participants.



     “Platform” has the meaning specified in Section 6.02.



     “Pledge Agreement” means the Pledge Agreement dated as of the date hereof by the
Company and the Domestic Guarantors in favor of the Administrative Agent for the benefit of the
Secured Parties, substantially in the form of Exhibit G-2.



     “PMP” means a professional market party as defined in the Dutch Financial Supervision
Act (“Wet op het financieel toezicht”).



     “Public Lender” has the meaning specified in Section 6.02.



     “Receivables” means accounts receivable (including all rights to payment created by or
arising from the sale of goods, lease of goods or the rendition of services, no matter how
evidenced (including in the form of a chattel paper)).



     “Receivables Financing Subsidiary” means any Wholly Owned Subsidiary of the Company
which is the transferee of Receivables in connection with, and the borrower under, a Permitted
Receivables Financing.



     “Refinancing Indebtedness” means with respect to any particular outstanding
Indebtedness (the “Refinanced Indebtedness”) any Indebtedness the proceeds of which are
used to refinance, refund, renew or extend such Refinanced Indebtedness; provided that (i)
the amount of such refinancing, refunding, renewing or extending Indebtedness does not exceed the
outstanding amount of the Refinanced Indebtedness except by an amount equal to a reasonable premium
or other reasonable amount paid, and reasonable fees and expenses incurred, in connection with such
refinancing and by an amount equal to any existing commitments unutilized thereunder, (ii) the
final maturity date and weighted average life thereof shall not be prior to or shorter than that of
the Refinanced Indebtedness, (iii) the terms relating to principal amount, amortization, maturity,
collateral (if any) and subordination (if any), and other material terms taken as a whole, of any
such refinancing, refunding, renewing or extending Indebtedness, and of any agreement entered into
and of any instrument issued in connection therewith, are no less favorable in any material respect
to the Loan Parties or the Lenders than the terms of any agreement or instrument governing the
Refinanced Indebtedness and the interest rate applicable to any such refinancing, refunding,
renewing or extending Indebtedness does not exceed the interest rates then prevailing in the
applicable market for similar Indebtedness for Persons of similar credit quality and (iv) such
refinancing, refunding, renewing or extending Indebtedness shall not constitute an obligation of
any Restricted Subsidiary that shall not have been an obligor in respect of such Refinanced
Indebtedness, and shall not constitute an obligation of the Company if the Company shall not have
been an obligor in respect of such Refinanced Indebtedness and, in each case, shall constitute an
obligation of such Restricted Subsidiary or of the Company only to the extent of their obligations
in respect of such Refinanced Indebtedness.



     “Register” has the meaning specified in Section 11.06(c).



     “Related Assets” has the meaning specified in the definition of Permitted Receivables
Financing.



30









 





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



     “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the 30 day notice period has been waived.



     “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Committed Loans, a Committed Loan Notice, (b) with respect to an L/C Credit
Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line
Loan Notice.



     “Required Lenders” means, as of any date of determination, Lenders having more than
50% of the Aggregate Commitments or, if the Commitment of each Lender and the obligation of the L/C
Issuers to make L/C Credit Extensions have been terminated pursuant to Section 8.02,
Lenders holding in the aggregate more than 50% of the Total Outstandings (with the aggregate amount
of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line
Loans being deemed “held” by such Lender for purposes of this definition); provided that
the Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting
Lender shall be excluded for purposes of making a determination of Required Lenders.



     “Required Revolving Lenders” means, as of any date of determination, Lenders holding
more than 50% of the sum of the (a) Total Outstandings (with the aggregate amount of each Lender’s
risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed
“held” by such Lender for purposes of this definition), but excluding the Outstanding Amount of any
Incremental Term Loans and (b) aggregate unused Commitments; provided that the unused
Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting
Lender shall be excluded for purposes of making a determination of Required Revolving Lenders.



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, treasurer or controller of a Loan Party and, solely for purposes of notices given pursuant
to Article II, any other officer of the applicable Loan Party so designated by any of the
foregoing officers in a notice to the Administrative Agent. Any document delivered hereunder that
is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the part of such Loan
Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such
Loan Party.



     “Restricted Payment” means (a) any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interest of the Company or any Restricted
Subsidiary, (b) any payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such Equity Interest, or on account of any return of capital to
the Company’s stockholders, partners or members (or the equivalent Person thereof), (c) any
cancellation, forgiveness, payment, prepayment, redemption or acquisition for value (including,
without limitation, (i) by way of depositing with any trustee with respect thereto money or
securities before due for the purpose of paying when due and (ii) at the maturity thereof) of any
subordinated Indebtedness or any notes or other Indebtedness issued pursuant to the Existing
Indentures (other than (x) refinancing, refunding, renewals or extensions thereof permitted
pursuant to Section 7.03 and (y) so long as no Default has occurred and is continuing, the
payment of interest, expenses and indemnities in respect thereof (other than any such payments
expressly prohibited by the subordination terms, if any, thereof)).



31









 





     “Restricted Subsidiary” means any Subsidiary of the Company that is not an
Unrestricted Subsidiary.



     “Revaluation Date” means:



     (a) with respect to any Loan, each of the following: (i) each date of a Borrowing of a
Eurocurrency Rate Loan denominated in an Alternative Currency or a Foreign Swing Line Loan, (ii)
each date of a continuation of a Eurocurrency Rate Loan denominated in an Alternative Currency
pursuant to Section 2.02, (iii) such periodic intervals (no more frequent than monthly) as
the Administrative Agent shall determine or the Swing Line Lender or the Required Lenders shall
require and (iv) such other times as the Administrative Agent shall reasonably deem necessary in
connection with the administration of this Agreement; and



     (b) with respect to any Letter of Credit, each of the following: (i) each date of issuance of
a Letter of Credit denominated in an Alternative Currency, (ii) each date of an amendment of any
such Letter of Credit having the effect of increasing the amount thereof, (iii) each date of any
payment by an L/C Issuer under any Letter of Credit denominated in an Alternative Currency, (iv) in
the case of the Existing Letters of Credit, the Closing Date, (v) such periodic intervals (no more
frequent than monthly) as the Administrative Agent or the applicable L/C Issuer shall determine or
the Required Lenders shall require and (vi) such other times as the Administrative Agent shall
reasonably deem necessary in connection with the administration of this Agreement.



     “Revolving Credit Increase” has the meaning specified in Section 2.16(a).



     “S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-Hill
Companies, Inc. and any successor thereto.



     “S&P Rating” means the corporate rating (or any substantially similar successor
rating, however styled) of the Company and its Subsidiaries issued by S&P.



     “Same Day Funds” means (a) with respect to disbursements and payments in Dollars,
immediately available funds, and (b) with respect to disbursements and payments in an Alternative
Currency, same day or other funds as may be determined by the Administrative Agent or the
applicable L/C Issuer, as the case may be, to be customary in the place of disbursement or payment
for the settlement of international banking transactions in the relevant Alternative Currency.



     “Sanctioned Entity” means (a) an agency of the government of, (b) an organization
directly or indirectly controlled by, or (c) a person resident in, a country that is subject to a
sanctions program identified on the list maintained and published by OFAC and available at
http://www.treas.gov/offices/enforcement/ofac/programs, or as otherwise published from time to time
as such program may be applicable to such agency, organization or person.



     “Sanctioned Person” means a person named on the list of Specially Designated Nationals
or Blocked Persons maintained by OFAC available at
http://www.treas.gov/offices/enforcement/ofac/sdn



     /index.html, or as otherwise published from time to time.



     “SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.



     “Secured Cash Management Agreement” means any Cash Management Agreement that is
entered into by and between any Loan Party and any Cash Management Bank.



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     “Secured Hedge Agreement” means any Swap Contract that is entered into by and between
any Loan Party and any Hedge Bank.



     “Secured Parties” means, collectively, the Administrative Agent, the Lenders, the
Hedge Banks, the Cash Management Banks, each L/C Issuer, each co-agent or sub-agent appointed by
the Administrative Agent from time to time pursuant to Section 9.05, and the other Persons
the Obligations owing to which are or are purported to be secured by the Collateral under the terms
of the Security Instruments.



     “Security Agreement” means the Security Agreement dated as of the date hereof by the
Company and the Domestic Guarantors in favor of the Administrative Agent for the benefit of the
Secured Parties, substantially in the form of Exhibit G-1.



     “Security Instruments” means, collectively, the Security Agreement, the Pledge
Agreement, the Foreign Pledges and all other agreements (including joinder agreements, control
agreements (if any), supplements, collateral assignments and similar agreements), instruments and
other documents, whether now existing or hereafter in effect, pursuant to which the Company, any
Subsidiary or other Person shall grant or convey to the Administrative Agent (for the benefit of
the Secured Parties) a Lien in, or any other Person shall acknowledge any such Lien in, property as
security for all or any portion of the Obligations or any other obligation under any Loan Document.



     “Solvent” and “Solvency” mean, with respect to any Person on any date of
determination, that on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount that will be required
to pay the probable liability of such Person on its debts as they become absolute and matured, (c)
such Person does not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is
not engaged in business or a transaction, and is not about to engage in business or a transaction,
for which such Person’s property would constitute an unreasonably small capital, and (e) such
Person is able to pay its debts and liabilities, contingent obligations and other commitments as
they mature in the ordinary course of business. The amount of contingent liabilities at any time
shall be computed as the amount that, in the light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an actual or matured
liability.



     “Special Notice Currency” means at any time an Alternative Currency, other than the
currency of a country that is a member of the Organization for Economic Cooperation and Development
at such time located in North America or Europe.



     “Specified Foreign Borrower” means (a) each of the Foreign Borrowers as of the Closing
Date and (b) each other Designated Borrower that is approved as a “Specified Foreign Borrower” by
the Swing Line Lender in its reasonable discretion.



     “Spot Rate” for a currency means the rate determined by the Administrative Agent, the
Swing Line Lender with notice thereof to the Administrative Agent or the applicable L/C Issuer with
notice thereof to the Administrative Agent to be the rate quoted by the Person acting in such
capacity as the spot rate for the purchase by such Person of such currency with another currency
through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two
Business Days prior to the date as of which the foreign exchange computation is made;
provided that the Administrative Agent, the Swing Line Lender or the applicable L/C Issuer
may obtain such spot rate from another financial institution designated by the Administrative
Agent, the Swing Line Lender or such L/C Issuer if the Person acting in such capacity does not have
as of the date of determination a spot buying rate for any such currency.



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     “Sterling” and “£” mean the lawful currency of the United Kingdom.



     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the Equity Interests having
ordinary voting power for the election of directors or other governing body (other than Equity
Interests having such power only by reason of the happening of a contingency) are at the time
beneficially owned, or the management of which is otherwise controlled, directly, or indirectly
through one or more intermediaries, or both, by such Person. Unless otherwise specified, all
references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or
Subsidiaries of the Company.



     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.



     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market
value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts (which may include a
Lender or any Affiliate of a Lender).



     “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.04.



     “Swing Line Lender” means Bank of America (or its Applicable Designee) in its capacity
as provider of Swing Line Loans, or any successor swing line lender hereunder.



     “Swing Line Loan” has the meaning specified in Section 2.04(a).



     “Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to
Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit
B.



     “Swing Line Sublimit” means the lesser of (a) $100,000,000 and (b) the Aggregate
Commitments. The Swing Line Sublimit is part of, and not in addition to, the Aggregate
Commitments.



     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).



34









 





     “TARGET Day” means any day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be
operative, such other payment system (if any) determined by the Administrative Agent to be a
suitable replacement) is open for the settlement of payments in Euro.



     “Tax Incentive Program” means any city, county or state tax abatement or reduction
program pursuant to which a Person transfers property to an industrial development authority or
other governmental or quasi-governmental entity for the principal purpose of obtaining a full or
partial abatement or reduction in real and/or personal property taxes.



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



     “Threshold Amount” means $50,000,000.



     “Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C
Obligations.



     “Type” means, with respect to a Committed Loan, its character as a Base Rate Loan or a
Eurocurrency Rate Loan.



     “United Kingdom” means the United Kingdom of Great Britain and Northern Ireland.



     “United States” and “U.S.” mean the United States of America.



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



     “Unrestricted Subsidiary” means each Foreign Subsidiary of the Company that becomes an
Unrestricted Subsidiary in accordance with Section 2.19(b) (until such time, if ever, that
such Foreign Subsidiary is re-designated as a Restricted Subsidiary in accordance with Section
2.19(b)(ii)).



     “Wholly Owned” means, with respect to any direct or indirect Subsidiary of any Person,
that 100% of the Equity Interest with ordinary voting power issued by such Subsidiary (other than
directors’ qualifying shares and investments by foreign nationals mandated by applicable Law) is
beneficially owned, directly or indirectly, by such Person.



     1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan
Document, unless otherwise specified herein or in such other Loan Document:



     (a) The definitions of terms herein shall apply equally to the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without limitation.” The word
“will” shall be construed to have the same meaning and effect as the word “shall.”
Unless the context requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document (including any Organization Document) shall be construed as referring
to such agreement, instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements or modifications
set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be
construed to include such Person’s successors and assigns, (iii) the words “hereto,”
“herein,” “hereof” and “hereunder,” and words of similar import when used
in any Loan Document, shall be



35









 




construed to refer to such Loan Document in its entirety and not to any particular provision
thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall
be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document
in which such references appear, (v) any reference to any law shall include all statutory and
regulatory provisions consolidating, amending, replacing or interpreting such law and any reference
to any law or regulation shall, unless otherwise specified, refer to such law or regulation as
amended, modified or supplemented from time to time, and (vi) the words “asset” and
“property” shall be construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash, securities, accounts and
contract rights.




     (b) In the computation of periods of time from a specified date to a later specified date, the
word “from” means “from and including;” the words “to” and “until”
each mean “to but excluding;” and the word “through” means “to and
including.”



     (c) Section and Article headings herein and in the other Loan Documents are included for
convenience of reference only and shall not affect the interpretation of this Agreement or any
other Loan Document.



     1.03 Accounting Terms.



     (a) Generally. All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Agreement or any other Loan
Document shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in preparing the Audited Financial
Statements, except as otherwise specifically prescribed herein. Notwithstanding the
foregoing, for purposes of determining compliance with any covenant (including the computation of
any financial covenant) contained herein, Indebtedness of the Company and its Restricted
Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and
the effects of FASB ASC 825 on financial liabilities shall be disregarded.



     (b) Changes in GAAP. If at any time any change in GAAP (including the adoption of
IFRS) would affect the computation of any financial ratio or requirement set forth in any Loan
Document, and either the Company or the Required Lenders shall so request in a written notice to
the Administrative Agent, the Administrative Agent, the Lenders and the Company shall negotiate in
good faith to amend such ratio or requirement to preserve the original intent thereof in light of
such change in GAAP (subject to the approval of the Required Lenders); provided
that, until so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP without giving effect to such change therein and (ii) the Company shall
provide to the Administrative Agent and the Lenders financial statements and other documents
required under this Agreement and the other Loan Documents or as reasonably requested hereunder
setting forth a reconciliation between calculations of such ratio or requirement made before and
after giving effect to such change in GAAP; provided further that for purposes of
calculating the covenants under this Agreement or any other Loan Document, any obligations of a
Person under a lease (whether existing on the Closing Date or entered into thereafter) that is not
(or would not be) required to be classified and accounted for as a capitalized lease on a balance
sheet of such Person prepared in accordance with GAAP as in effect on the Closing Date shall not be
treated as a capitalized lease pursuant to this Agreement or the other Loan Documents solely as a
result of (x) the adoption of changes in GAAP after the Closing Date (including, for the avoidance
of doubt, any changes in GAAP as set forth in the FASB exposure draft issued on August 17, 2010 (as
the same may be amended from time to time)) or (y) changes in the application of GAAP after the
Closing Date (including the avoidance of doubt, any changes as set forth in the FASB exposure draft
issued on August 17, 2010 (as the same may be amended from time to time)).




36












 





     1.04 Rounding. Any financial ratios required to be maintained by the Company or any
Restricted Subsidiary pursuant to this Agreement shall be calculated by dividing the appropriate
component by the other component, carrying the result to one place more than the number of places
by which such ratio is expressed herein and rounding the result up or down to the nearest number
(with a rounding-up if there is no nearest number).



     1.05 Exchange Rates; Currency Equivalents.



     (a) The Administrative Agent, the Swing Line Lender or the applicable L/C Issuer, as
applicable, shall determine the Spot Rates as of each Revaluation Date to be used for calculating
Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts denominated in Alternative
Currencies. Such Spot Rates shall become effective as of such Revaluation Date and shall be the
Spot Rates employed in converting any amounts between the applicable currencies until the next
Revaluation Date to occur. Except for purposes of financial statements delivered by Loan Parties
hereunder or calculating financial covenants hereunder or except as otherwise provided herein, the
applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be
such Dollar Equivalent amount as so determined by the Administrative Agent, the Swing Line Lender
or the applicable L/C Issuer (as the case may be).



     (b) Wherever in this Agreement in connection with a Borrowing, conversion, continuation or
prepayment of a Eurocurrency Rate Loan or the issuance, amendment or extension of a Letter of
Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such
Borrowing, Eurocurrency Rate Loan, Foreign Swing Line Loan or Letter of Credit is denominated in an
Alternative Currency, such amount shall be the relevant Alternative Currency Equivalent of such
Dollar amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being
rounded upward), as determined by the Administrative Agent, the Swing Line Lender or the applicable
L/C Issuer, as the case may be.



     1.06 Additional Alternative Currencies.



     (a) The Company may from time to time request that Eurocurrency Rate Loans and/or Foreign
Swing Line Loans be made, and/or Letters of Credit be issued, in a currency other than those
specifically listed in the definition of “Alternative Currency” or, in the case of Foreign Swing
Line Loans, listed in Section 2.04(a); provided that such requested currency is a
lawful currency (other than Dollars) that is readily available and freely transferable and
convertible into Dollars. In the case of any such request with respect to the making of
Eurocurrency Rate Loans, such request shall be subject to the written approval of the
Administrative Agent and all the Lenders; in the case of any such request with respect to the
making of Foreign Swing Line Loans, such request shall be subject to the written approval of the
Administrative Agent and the Swing Line Lender; and in the case of any such request with respect to
the issuance of Letters of Credit, such request shall be subject to the written approval of the
Administrative Agent and the applicable L/C Issuer that will be issuing Letters of Credit in such
currency.



     (b) Any such request shall be made by the Company (i) in the case of any such request
pertaining to Eurocurrency Rate Loans, to the Administrative Agent, (ii) in the case of any such
request pertaining to Foreign Swing Line Loans, to the Administrative Agent and the Swing Line
Lender and (iii) in the case of any such request pertaining to Letters of Credit, to the
Administrative Agent and each L/C Issuer, in each case, not later than 11:00 a.m., 15 Business Days
prior to the date of the desired Credit Extension (or such other time or earlier date as may be
agreed by the Administrative Agent and, in the case of any such request pertaining to Letters of
Credit, the applicable L/C Issuer, or in the case of any such request pertaining to Foreign Swing
Line Loans, the Swing Line Lender, in each case, in its or their sole discretion). In the case of
any such request pertaining to Eurocurrency Rate Loans, the



37









 




Administrative Agent shall promptly notify each Lender thereof. Each Lender (in the case of any
such request pertaining to Eurocurrency Rate Loans), the Swing Line Lender (in the case of any such
request pertaining to Foreign Swing Line Loans) or each L/C Issuer (in the case of a request
pertaining to Letters of Credit) shall notify the Administrative Agent, not later than 11:00 a.m.,
5 Business Days after receipt of such request whether it consents, in its sole discretion, to the
making of Eurocurrency Rate Loans or Foreign Swing Line Loans or the issuance of Letters of Credit,
as the case may be, in such requested currency. With respect to Letters of Credit, only those L/C
Issuers that specifically approve such requested currency shall be obligated to provide Letters of
Credit in such currency.




     (c) Any failure by a Lender, the Swing Line Lender or any applicable L/C Issuer, as the case
may be, to respond to such request within the time period specified in the preceding sentence shall
be deemed to be a refusal by such Lender, the Swing Line Lender or such L/C Issuer, as the case may
be, to permit Eurocurrency Rate Loans or Foreign Swing Line Loans to be made or Letters of Credit
to be issued, as the case may be, in such requested currency. If the Administrative Agent and all
the Lenders consent to making Eurocurrency Rate Loans in such requested currency, the
Administrative Agent shall so notify the Company and such currency shall thereupon be deemed for
all purposes to be an Alternative Currency hereunder for purposes of any Committed Borrowings of
Eurocurrency Rate Loans; if the Administrative Agent and the Swing Line Lender consent to the
making of Foreign Swing Line Loans in such requested currency, the Administrative Agent shall so
notify the Company and such currency shall hereupon be deemed for all purposes to be included in
the currencies set forth in Section 2.04(a)(ii) for Swing Line Borrowings by Foreign
Borrowers pursuant to Foreign Swing Line Loans requested; and if the Administrative Agent and any
L/C Issuer consent to the issuance of Letters of Credit in such requested currency, the
Administrative Agent shall so notify the Company and such currency shall thereupon be deemed for
all purposes to be an Alternative Currency hereunder for purposes of any Letter of Credit issuances
to be issued by each such approving L/C Issuer. If the Administrative Agent shall fail to obtain
consent to any request for an additional currency under this Section 1.06, the
Administrative Agent shall promptly so notify the Company.



     1.07 Change of Currency.



     (a) Each obligation of the Borrowers to make a payment denominated in the national currency
unit of any member state of the European Union that adopts the Euro as its lawful currency after
the date hereof shall be redenominated into Euro at the time of such adoption (in accordance with
the EMU Legislation). If, in relation to the currency of any such member state, the basis of
accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent
with any convention or practice in the London interbank market for the basis of accrual of interest
in respect of the Euro, such expressed basis shall be replaced by such convention or practice with
effect from the date on which such member state adopts the Euro as its lawful currency;
provided that if any Borrowing in the currency of such member state is outstanding
immediately prior to such date, such replacement shall take effect, with respect to such Borrowing,
at the end of the then current Interest Period.



     (b) Each provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be appropriate to reflect
the adoption of the Euro by any member state of the European Union and any relevant market
conventions or practices relating to the Euro.



     (c) Each provision of this Agreement also shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be appropriate to reflect
a change in currency of any other country and any relevant market conventions or practices relating
to the change in currency.



38









 





     1.08 Times of Day. Unless otherwise specified, all references herein to times of day
shall be references to Eastern time (daylight or standard, as applicable) in the United States.



     1.09 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter
of Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount of such
Letter of Credit in effect at such time; provided that with respect to any Letter of Credit
that, by its terms or the terms of any Issuer Document related thereto, provides for one or more
automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be
deemed to be the Dollar Equivalent of the maximum stated amount of such Letter of Credit after
giving effect to all such increases, whether or not such maximum stated amount is in effect at such
time.



ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01 Committed Loans. Subject to the terms and conditions set forth herein, each Lender
severally agrees to make loans (each such loan, a “Committed Loan”) to the Borrowers in
Dollars or in one or more Alternative Currencies from time to time, on any Business Day during the
Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of
such Lender’s Commitment; provided that after giving effect to any Committed Borrowing, (i)
the Total Outstandings shall not exceed the Aggregate Commitments, (ii) the Outstanding Amount of
the Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the
Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the
Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, (iii) the
Outstanding Amount of all Committed Loans made to all Foreign Borrowers plus the
Outstanding Amount of all Foreign Swing Line Loans shall not exceed the Maximum Foreign Borrower
Sublimit and (iv) with respect to each individual Foreign Borrower, the Outstanding Amount of all
Committed Loans made to such Foreign Borrower plus the Outstanding Amount of all Foreign
Swing Line Loans made to such Foreign Borrower shall not exceed the Foreign Borrower Sublimit
applicable to such Foreign Borrower. Within the limits of each Lender’s Commitment, and subject to
the other terms and conditions hereof, the Borrowers may borrow under this Section 2.01,
prepay under Section 2.05, and reborrow under this Section 2.01. Committed Loans
may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein; provided
that each Committed Loan denominated in an Alternative Currency shall be a Eurocurrency Rate Loan.



     2.02 Borrowings, Conversions and Continuations of Committed Loans.



     (a) Each Committed Borrowing, each conversion of Committed Loans from one Type to the other,
and each continuation of Eurocurrency Rate Loans shall be made upon the Company’s irrevocable
notice to the Administrative Agent, which may be given by telephone. Each such notice must be
received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to the
requested date of any Borrowing of, conversion to or continuation of Eurocurrency Rate Loans
denominated in Dollars or of any conversion of Eurocurrency Rate Loans made to the Company and
denominated in Dollars to Base Rate Committed Loans, (ii) four Business Days (or five Business Days
in the case of a Special Notice Currency (including, without limitation, Australian Dollars)) prior
to the requested date of any Borrowing or continuation of Eurocurrency Rate Loans denominated in
Alternative Currencies, and (iii) on the requested date of any Borrowing by the Company of Base
Rate Committed Loans. Upon receipt of such notice the Administrative Agent shall give prompt notice
to the Lenders of such request. Each telephonic notice by the Company pursuant to this Section
2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written
Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Company.
Each Borrowing of, conversion to or continuation of Eurocurrency Rate Loans denominated in Dollars
shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
Each Borrowing of, conversion to or continuation of



39









 




Eurocurrency Rate Loans denominated in an Alternative Currency shall be in a principal amount of
the applicable Alternative Currency Equivalent of $5,000,000 or a whole multiple of the applicable
Alternative Currency Equivalent of $1,000,000 in excess thereof. Except as provided in
Sections 2.03(c) and 2.04(c), each Committed Borrowing of or conversion to Base
Rate Committed Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000
in excess thereof. Each Committed Loan Notice (whether telephonic or written) shall specify (i)
whether the Company is requesting a Committed Borrowing, a conversion of Committed Loans from one
Type to the other, or a continuation of Eurocurrency Rate Loans, (ii) the requested date of the
Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii)
the principal amount of Committed Loans to be borrowed, converted or continued, (iv) the Type of
Committed Loans to be borrowed or to which existing Committed Loans are to be converted, (v) if
applicable, the duration of the Interest Period with respect thereto, (vi) the currency of the
Committed Loans to be borrowed, and (vii) the name of the applicable Borrower. If the Company
fails to specify a currency in a Committed Loan Notice requesting a Borrowing, then the Committed
Loans so requested shall be made in Dollars. If the Company fails to specify a Type of Committed
Loan in a Committed Loan Notice, then in the case of Loans requested to be made in Dollars to the
Company, the applicable Committed Loans shall be made as Base Rate Loans, and in all other cases
the applicable Committed Loans shall be made as Eurocurrency Rate Loans with an Interest Period of
one month. If the Company fails to give a timely notice requesting a conversion or continuation of
Eurocurrency Rate Loans such Loans shall be continued as Eurocurrency Rate Loans in their original
currency with an Interest Period of one month. Any automatic conversion to Base Rate Loans shall
be effective as of the last day of the Interest Period then in effect with respect to the
applicable Eurocurrency Rate Loans. If the Company requests a Borrowing of, conversion to, or
continuation of Eurocurrency Rate Loans in any such Committed Loan Notice, but fails to specify an
Interest Period, it will be deemed to have specified an Interest Period of one month. No Committed
Loan may be converted into or continued as a Committed Loan denominated in a different currency,
but instead must be prepaid in the original currency of such Committed Loan and reborrowed in the
other currency.




     (b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount (and currency) of its Applicable Percentage of the applicable
Committed Loans, and if no timely notice of a conversion or continuation is provided by the
Company, the Administrative Agent shall notify each Lender of the details of any automatic
conversion to Base Rate Loans or continuation of Committed Loans denominated in a currency other
than Dollars, in each case as described in the preceding subsection. In the case of a Committed
Borrowing, each Lender shall make the amount of its Committed Loan available to the Administrative
Agent in Same Day Funds in the applicable currency of such Committed Borrowing at the
Administrative Agent’s Office for the applicable currency not later than 1:00 p.m., in the case of
any Committed Loan denominated in Dollars, and not later than the Applicable Time specified by the
Administrative Agent in the case of any Committed Loan in an Alternative Currency, in each case on
the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction (or waiver
in accordance with Section 11.01) of the applicable conditions set forth in Section
4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to the Company or the other
applicable Borrower, as promptly as reasonably practicable, in like funds as received by the
Administrative Agent either by (i) crediting the account of such Borrower on the books of Bank of
America with the amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by
the Company on behalf of the applicable Borrower; provided that if, on the date the
Committed Loan Notice with respect to such Borrowing denominated in Dollars is given by the
Company, there are L/C Borrowings outstanding, then the proceeds of such Borrowing, first,
shall be applied to the payment in full of any such L/C Borrowings, and, second, shall be
made available to the applicable Borrower as provided above.



40









 





     (c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurocurrency Rate Loan. During the
existence of an Event of Default, no Loans may be requested as, converted to or continued as
Eurocurrency Rate Loans (whether in Dollars or any Alternative Currency) without the consent of the
Required Lenders, and the Required Lenders may demand that any or all of the then outstanding
Eurocurrency Rate Loans denominated in an Alternative Currency be prepaid, or redenominated into
Dollars in the amount of the Dollar Equivalent thereof, on the last day of the then current
Interest Period with respect thereto.



     (d) The Administrative Agent shall promptly notify the Company and the Lenders of the interest
rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination of such
interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall
notify the Company and the Lenders of any change in Bank of America’s prime rate used in
determining the Base Rate promptly following the public announcement of such change.



     (e) After giving effect to all Committed Borrowings, all conversions of Committed Loans from
one Type to the other, and all continuations of Committed Loans as the same Type, there shall not
be more than ten Interest Periods in effect with respect to Committed Loans.



     2.03 Letters of Credit.



     (a) The Letter of Credit Commitment.




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




     (ii) The L/C Issuer shall not issue a Letter of Credit, if:



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     (A) the expiry date of such Letter of Credit would occur more than twelve months
after the date of issuance, unless the Required Lenders have approved such expiry date; or




     (B) the expiry date of such Letter of Credit would occur after the Letter
of Credit Expiration Date unless the applicable L/C Issuer has approved such later
expiry date (in which case, such Letter of Credit shall be an “Extended Letter
of Credit”), it being acknowledged and agreed that each such Extended Letter of
Credit shall be Cash Collateralized in accordance with Section 6.16.




     (iii) The L/C Issuer shall not be under any obligation to issue a Letter of Credit if:




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




     (B) the issuance of such Letter of Credit would violate one or more policies of
such L/C Issuer applicable to letters of credit generally;




     (C) except as otherwise agreed by the Administrative Agent and such L/C Issuer,
such Letter of Credit is in an initial stated amount less than $500,000;




     (D) except as otherwise agreed by the Administrative Agent and such L/C Issuer,
the Letter of Credit is to be denominated in a currency other than Dollars or an
Alternative Currency applicable to such L/C Issuer;




     (E) such L/C Issuer does not, as of the issuance date of the requested Letter
of Credit (and as a general matter), issue Letters of Credit in the requested
currency;




     (F) any Lender is at that time a Defaulting Lender, unless such L/C Issuer has
entered into arrangements, including the delivery of Cash Collateral, satisfactory
to such L/C Issuer (in its sole discretion) with the Company or such Lender to
eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving
effect to Section 2.18(a)(iv)) with respect to the Defaulting Lender arising
from either such Letter of Credit or such Letter of Credit and all other L/C
Obligations as to which such L/C Issuer has actual or potential Fronting Exposure,
as it may elect in its sole discretion; or




     (G) such Letter of Credit contains any provisions for automatic reinstatement
of the stated amount after any drawing thereunder.




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



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




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




     (b) Procedures for Issuance and Amendment of Letters of Credit.




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




     (ii) Promptly after receipt of any Letter of Credit Application, the applicable L/C
Issuer will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application from the
Company and, if not, such L/C Issuer will provide the Administrative Agent with a copy
thereof. Unless the applicable L/C Issuer has received written notice from any Lender, the
Administrative Agent or any Loan Party, at least one Business Day prior to the requested
date of issuance or amendment of the applicable Letter of Credit, that one or more
applicable conditions contained in Article IV shall not then be satisfied, then,
subject to the terms and conditions hereof, such L/C Issuer shall, on the requested date,
issue a Letter of Credit for the account of the Company (or the applicable Restricted
Subsidiary) or enter into the applicable amendment, as the case may be, in each case in
accordance with such L/C Issuer’s usual and customary business practices.



43









 






     Immediately upon the issuance of each Letter of Credit (or on the Closing Date in the case
of the Existing Letters of Credit), each Lender shall be deemed to, and hereby irrevocably
and unconditionally agrees to, purchase from the applicable L/C Issuer a risk participation
in such Letter of Credit in an amount equal to the product of such Lender’s Applicable
Percentage times the amount of such Letter of Credit.




     (iii) If the Company so requests in the applicable Letter of Credit Application, the
applicable L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that
has automatic extension provisions (each, an “Auto-Extension Letter of Credit”);
provided that any such Auto-Extension Letter of Credit must permit such L/C Issuer
to prevent any such extension at least once in each twelve-month period (commencing with the
date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof
not later than a day (the “Non-Extension Notice Date”) in each such twelve-month
period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise
directed by the applicable L/C Issuer, the Company shall not be required to make a specific
request to such L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit
has been issued, the Lenders shall be deemed to have authorized (but may not require) the
applicable L/C Issuer to permit the extension of such Letter of Credit at any time to an
expiry date not later than the Letter of Credit Expiration Date (or with respect to an
Extended Letter of Credit, the expiry date set forth in such Extended Letter of Credit);
provided that such L/C Issuer shall not permit any such extension if (A) such L/C
Issuer has determined that it would not be permitted, or would have no obligation, at such
time to issue such Letter of Credit in its revised form (as extended) under the terms hereof
(by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or
otherwise), or (B) it has received notice (which may be by telephone or in writing) on or
before the day that is seven Business Days before the Non-Extension Notice Date (1) from the
Administrative Agent that the Required Lenders have elected not to permit such extension or
(2) from the Administrative Agent, any Lender or the Company that one or more of the
applicable conditions specified in Section 4.02 is not then satisfied, and in each
such case directing such L/C Issuer not to permit such extension.




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



     (c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the applicable L/C Issuer shall promptly notify (any
such notification, a “Drawing Notice”) the Company and the Administrative Agent
thereof. In the case of a Letter of Credit denominated in an Alternative Currency, the
Company shall reimburse the applicable L/C Issuer in such Alternative Currency, unless (A)
such L/C Issuer (at its option) shall have specified in such notice that it will require
reimbursement in Dollars, or (B) in the absence of any such requirement for reimbursement in
Dollars, the Company shall have notified the applicable L/C Issuer promptly following
receipt of the notice of drawing that the Company will reimburse the applicable L/C Issuer
in Dollars. In the case of any such reimbursement in Dollars of a drawing under a Letter of
Credit denominated in an Alternative Currency, the applicable L/C Issuer shall notify the
Company of the Dollar Equivalent of the amount of the drawing promptly following the
determination thereof. The Company shall reimburse, or shall cause the applicable
Restricted Subsidiary to reimburse, such L/C Issuer of the Letter of Credit in an amount
equal to the amount of such drawing and in the applicable currency no later than (x) 2:00
p.m. on the same Business Day that the Company receives a Drawing Notice from such L/C



44









 






Issuer if such Drawing Notice is received by the Company by 1:00 p.m. and (y) 11:00
a.m. on the immediately following Business Day if the Company receives a Drawing Notice from
such L/C Issuer after 1:00 p.m. If neither the Company nor any Restricted Subsidiary so
reimburses such L/C Issuer of the Letter of Credit by the applicable time specified in the
immediately preceding sentence, such L/C Issuer shall promptly notify the Administrative
Agent of such failure to reimburse and of the amount of the unreimbursed drawing (expressed
in Dollars in the amount of the Dollar Equivalent thereof in the case of a Letter of Credit
denominated in an Alternative Currency) (the “Unreimbursed Amount”), and the
Administrative Agent shall promptly notify each Lender of amount of such Lender’s Applicable
Percentage thereof. In such event, the Company shall be deemed to have requested a
Committed Borrowing of Base Rate Loans to be disbursed on such date in an amount equal to
the Unreimbursed Amount, without regard to the minimum and multiples specified in
Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount
of the unutilized portion of the Aggregate Commitments and the conditions set forth in
Section 4.02 (other than the delivery of a Committed Loan Notice). Any notice given
by any L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i)
may be given by telephone if immediately confirmed in writing; provided that the
lack of such an immediate confirmation shall not affect the conclusiveness or binding effect
of such notice.




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




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




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




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



45









 






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




     (vi)	If any
Lender fails to make available to the Administrative Agent for the account of any L/C Issuer any amount required to be paid
by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii),
then, without limiting the other provisions of this Agreement, the applicable L/C Issuer shall be entitled to recover from
such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the
date such payment is required to the date on which such payment is immediately available to such L/C Issuer at a rate per
annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar
fees customarily charged by such L/C Issuer in connection with the foregoing.  If such Lender pays such amount (with
interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Committed Loan included in the relevant
Committed Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be.  A certificate of the
applicable L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under
this clause (vi) shall be conclusive absent manifest error.



     (d) Repayment of Participations.





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



     (ii)
If any payment received by the Administrative Agent for the account of the
applicable L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 11.05 (including pursuant to any settlement entered into by
such L/C Issuer in its discretion), each Lender shall pay to the Administrative Agent for the
account of such L/C Issuer its Applicable Percentage thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date such amount is returned by
such Lender, at a rate per annum equal to the applicable Overnight Rate from time to time in
effect. The obligations of the Lenders under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement.



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




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



46









 






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




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




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




     (v) any adverse change in the relevant exchange rates or in the availability of the
relevant Alternative Currency to the Company or any Subsidiary or in the relevant currency
markets generally; or




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



     The Company shall promptly examine a copy of each Letter of Credit and each amendment thereto
that is delivered to it and, in the event of any claim of noncompliance with the Company’s
instructions or other irregularity, the Company will notify the applicable L/C Issuer as promptly
as practicable but in no event later than 2 Business Days following the receipt by a Responsible
Officer of a copy of such Letter of Credit or amendment provided by the Administrative Agent or the
applicable L/C Issuer. The Company shall be conclusively deemed to have waived any such claim
against the applicable L/C Issuer and its correspondents unless such notice is given as aforesaid.



     (f) Role of L/C Issuers. Each Lender and the Company agree that, in paying any
drawing under a Letter of Credit, no L/C Issuer shall have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the L/C Issuers, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of any L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document
or instrument related to any Letter of Credit or Issuer Document. The Company hereby assumes all
risks of the acts or omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided that this assumption is not intended to, and shall not, preclude
the Company’s pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the L/C Issuers, the Administrative Agent,
any of their respective Related Parties nor any correspondent, participant or assignee of any L/C
Issuer shall be liable or responsible for any of the matters described in clauses (i) through (vi)
of Section 2.03(e); provided that anything in such



47









 




clauses to the contrary notwithstanding, the Company may have a claim against the applicable
L/C Issuer, and the applicable L/C Issuer may be liable to the Company, to the extent, but only to
the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the
Company which the Company proves were caused by the applicable L/C Issuer’s willful misconduct or
gross negligence or the applicable L/C Issuer’s willful failure to pay under any Letter of Credit
after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly
complying with the terms and conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing, each L/C Issuer may accept documents that appear on their face to be
in order, without responsibility for further investigation, regardless of any notice or information
to the contrary, and no L/C Issuer shall be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.




     (g) Applicability of ISP. Unless otherwise expressly agreed by the applicable L/C
Issuer and the Company when a Letter of Credit is issued (including any such agreement applicable
to an Existing Letter of Credit), the rules of the ISP shall apply to each Letter of Credit.



     (h) Letter of Credit Fees. The Company shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage, in Dollars, a Letter of Credit
fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate
times the Dollar Equivalent of the daily amount then available to be drawn under such
Letter of Credit; provided that any Letter of Credit Fees otherwise payable for the account
of a Defaulting Lender with respect to any Letter of Credit as to which neither the Company nor
such Defaulting Lender has provided Cash Collateral satisfactory to the applicable L/C Issuer
pursuant to this Section 2.03 or 2.17 shall be payable, to the maximum extent
permitted by applicable Law, to the other Lenders in accordance with the upward adjustments in
their respective Applicable Percentages allocable to such Letter of Credit pursuant to Section
2.18(a)(iv), with the balance of such fee, if any, payable to the applicable L/C Issuer for its
own account. For purposes of computing the daily amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance with Section
1.09. Letter of Credit Fees shall be (i) due and payable on the tenth Business Day after the
end of each March, June, September and December, commencing with the first such date to occur after
the issuance of such Letter of Credit (or in the case of the Existing Letters of Credit, after the
end of September, 2011), on the Letter of Credit Expiration Date and thereafter on demand and (ii)
computed on a quarterly basis in arrears. If there is any change in the Applicable Rate during any
quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, upon the
request of the Required Lenders, while any Event of Default exists, all Letter of Credit Fees shall
accrue at the Default Rate.



     (i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuers. The
Company shall pay directly to the applicable L/C Issuer for its own account, in Dollars, a fronting
fee with respect to each Letter of Credit, at the rate per annum specified in the Fee Letter of the
applicable institution acting as a L/C Issuer or as otherwise agreed between such L/C Issuer and
the Company, computed on the Dollar Equivalent of the daily amount available to be drawn under such
Letter of Credit on a quarterly basis in arrears. Such fronting fee shall be due and payable on
the tenth Business Day after the end of each March, June, September and December in respect of the
most recently-ended quarterly period (or portion thereof, in the case of the first payment),
commencing with the first such date to occur after the issuance of such Letter of Credit (or in the
case of the Existing Letters of Credit, after the end of September, 2011), on the Letter of Credit
Expiration Date and thereafter on demand. For purposes of computing the daily amount available to
be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.09. In addition, the Company shall pay



48









 




directly to the applicable L/C Issuer for its own account, in Dollars, the customary issuance,
presentation, amendment and other processing fees, and other standard costs and charges, of the
applicable L/C Issuer relating to letters of credit as from time to time in effect and charged to
its customers generally. Such customary fees and standard costs and charges are due and payable on
demand and are nonrefundable.




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



     (k) Cash Collateral Event. Without limiting Section 2.17, if the
Administrative Agent notifies the Company at any time that the Outstanding Amount of all L/C
Obligations that are not Cash Collateralized by the Company or another Borrower at such time
exceeds 105% of the Letter of Credit Sublimit then in effect, then, within two Business Days after
receipt of such notice, the Company shall Cash Collateralize the L/C Obligations in an amount equal
to the amount by which the Outstanding Amount of all L/C Obligations that are not Cash
Collateralized by the Company or another Borrower exceeds the Letter of Credit Sublimit. The
Administrative Agent may, at any time and from time to time after the initial deposit of Cash
Collateral, request that additional Cash Collateral be provided in order to protect against the
results of exchange rate fluctuations. All such Cash Collateral shall be granted, provided and
maintained in accordance with Section 2.17.



     (l) Letters of Credit Issued for Restricted Subsidiaries. Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the
account of, a Restricted Subsidiary, the Company shall be obligated to reimburse, or to cause the
applicable Restricted Subsidiary to reimburse, the applicable L/C Issuer hereunder for any and all
drawings under such Letter of Credit. The Company hereby acknowledges that the issuance of Letters
of Credit for the account of Restricted Subsidiaries inures to the benefit of the Company and that
the Company’s business derives substantial benefits from the businesses of such Restricted
Subsidiaries.



     (m) Additional L/C Issuers. In addition to Bank of America and each L/C Issuer listed
on the signature pages hereto as an “L/C Issuer,” the Company may from time to time, with notice to
the Lenders and the consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed) and the applicable Lender being so appointed, appoint additional Lenders to be
L/C Issuers hereunder, provided that the total number of L/C Issuers at any time shall not
exceed four Lenders. Upon the appointment of a Lender as a L/C Issuer hereunder such Person shall
become vested with all of the rights, powers, privileges and duties of a L/C Issuer hereunder.



     (n) Removal of L/C Issuers. The Company may at any time remove any Lender from its
role as an L/C Issuer hereunder upon not less than 30 days prior notice to such L/C Issuer (or such
shorter period of time as may be acceptable to such L/C Issuer); provided that such removed
L/C Issuer shall retain all the rights, powers, privileges and duties of a L/C Issuer hereunder
with respect to all Letters of Credit outstanding as of the effective date of its removal as L/C
Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to
make Base Rate Committed Loans or fund risk participations in Unreimbursed Amounts pursuant to
Section 2.03(c)). Without limiting the foregoing, upon the removal of a Lender as an L/C
Issuer hereunder, the Company may, or at the request of such removed L/C Issuer the Company shall
use commercially reasonable efforts to, arrange for one or more of the other L/C Issuers to issue
Letters of Credit hereunder in substitution for the Letters of Credit, if any, issued by such
removed L/C Issuer and outstanding at the time of such removal, or make other arrangements
satisfactory to the removed L/C Issuer to effectively cause another L/C Issuer to assume the
obligations of the removed L/C Issuer with respect to any such Letters of Credit.



     (o) Reporting of Letter of Credit Information and L/C Issuer Sublimit. At any time
that there is more than one L/C Issuer, then (i) on the last Business Day of each calendar month,
(ii) on each date



49









 




that a Letter of Credit is amended, terminated or otherwise expires, (iii) on each date that
an L/C Credit Extension occurs with respect to any Letter of Credit, and (iv) upon the request of
the Administrative Agent, each L/C Issuer (or, in the case of part (ii), (iii) or (iv), the
applicable L/C Issuer) shall deliver to the Administrative Agent a report setting forth in form and
detail reasonably satisfactory to the Administrative Agent information (including, without
limitation, any reimbursement, Cash Collateral, or termination in respect of Letters of Credit
issued by such L/C Issuer) with respect to each Letter of Credit issued by such L/C Issuer that is
outstanding hereunder. In addition, each L/C Issuer shall provide notice to the Administrative
Agent of its L/C Issuer Sublimit, or any change thereto, promptly upon it becoming a L/C Issuer or
making any change to its L/C Issuer Sublimit. No failure on the part of any L/C Issuer to provide
such information pursuant to this Section 2.03(o) shall limit the obligation of the Company
or any Lender hereunder with respect to its reimbursement and participation obligations,
respectively, pursuant to this Section 2.03.




     2.04 Swing Line Loans.



     (a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender, in reliance upon the agreements of the other Lenders set forth in this Section
2.04, may in its sole discretion make loans (i) to the Company, in Dollars (each such loan to
the Company, a “Domestic Swing Line Loan”) and (ii) in Dollars, Euros, Sterling or another
Alternative Currency approved for such purpose by the Swing Line Lender pursuant to Section
1.06 to any Specified Foreign Borrower (each such loan to any Specified Foreign Borrower, a
“Foreign Swing Line Loan” and, collectively with the Domestic Swing Line Loans, the
“Swing Line Loans”) from time to time on any Business Day during the Availability Period;
provided that after giving effect to any Swing Line Loan, (i) the Total Outstandings shall
not exceed the Aggregate Commitments, (ii) the aggregate Outstanding Amount of the Committed Loans
of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all
L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all
Swing Line Loans shall not exceed such Lender’s Commitment, (iii) the Outstanding Amount of the
Swing Line Loans shall not exceed the Swing Line Sublimit, notwithstanding the fact that such Swing
Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Committed
Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such
Lender’s Commitment and (iv) in the case of any Foreign Swing Line Loan, the Outstanding Amount of
Loans made to all of the Foreign Borrowers shall not exceed the Maximum Foreign Borrower Sublimit
and the Outstanding Amount of all Loans made to each Foreign Borrower shall not exceed the Foreign
Borrower Sublimit applicable to such Foreign Borrower, and provided, further, that
neither the Company nor any Specified Foreign Borrower shall use the proceeds of any Swing Line
Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the
other terms and conditions hereof, the Company may borrow under this Section 2.04, prepay
under Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan
shall bear interest as set forth in Section 2.08. Immediately upon the making of a Swing
Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal
to the product of such Lender’s Applicable Percentage times the amount of such Swing Line
Loan.



     (b) Borrowing Procedures.




     (i) Domestic Swing Line Loans. Each Swing Line Borrowing of a Domestic Swing
Line Loan shall be made upon the Company’s notice to the Swing Line Lender and the
Administrative Agent (at the Administrative Agent’s Office with respect to Dollars), which
may be given by telephone. Each such notice must be received by the Swing Line Lender and
the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall
specify (A) the amount to be borrowed, which shall be a minimum of $100,000 and (B) the
requested



50









 






borrowing date, which shall be a Business Day. Each such telephonic notice must be
confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a
written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer
of the Company. Promptly after receipt by the Swing Line Lender of any telephonic Swing
Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has also received such Swing Line
Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by
telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at the request
of any Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing of
Domestic Swing Line Loans (x) directing the Swing Line Lender not to make such Domestic
Swing Line Loan as a result of the limitations set forth in the first proviso to the first
sentence of Section 2.04(a), or (y) that one or more of the applicable conditions
specified in Article IV is not then satisfied, then, subject to the terms and
conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing
date specified in such Swing Line Loan Notice, make the amount of its Domestic Swing Line
Loan available to the Company.




     (ii) Foreign Swing Line Loans. Each Swing Line Borrowing of a Foreign Swing
Line Loan shall be made upon the applicable Specified Foreign Borrower’s delivery of a
written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer
of the applicable Specified Foreign Borrower (delivered at the Administrative Agent’s Office
with respect to the requested currency of such Foreign Swing Line Loan). Each such notice
must be received by the Swing Line Lender and the Administrative Agent not later than 10:00
a.m. (London time) on the requested borrowing date, and shall specify (A) the amount to be
borrowed, which shall be in a minimum of the Alternative Currency Equivalent of $500,000,
(B) the currency of the Foreign Swing Line Loans to be borrowed, (C) the name of the
applicable Specified Foreign Borrower, and (D) the requested borrowing date, which shall be
a Business Day. Unless the Swing Line Lender has received notice from the Administrative
Agent (including at the request of any Lender) prior to 11:00 a.m. (London time) on the date
of the proposed Swing Line Borrowing (1) directing the Swing Line Lender not to make such
Foreign Swing Line Loan as a result of the limitations set forth in the first proviso to the
first sentence of Section 2.04(a), or (2) that one or more of the applicable
conditions specified in Article IV is not then satisfied, then, subject to the terms
and conditions hereof, the Swing Line Lender will, not later than 12:00 p.m. (London time)
on the borrowing date specified in such Swing Line Loan Notice, make the amount of its
Foreign Swing Line Loan available to the applicable Specified Foreign Borrower.



     (c) Refinancing of Swing Line Loans.




     (i) The Swing Line Lender at any time in its sole discretion may request, on behalf of
the Company or the applicable Specified Foreign Borrower (each of which hereby irrevocably
authorizes the Swing Line Lender to so request on its behalf), that each Lender make (x) a
Base Rate Committed Loan, in respect of Domestic Swing Line Loans and (y) a Eurocurrency
Rate Loan, in respect of Foreign Swing Line Loans, in each case, in an amount equal to such
Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding. Such
request shall be made in writing (which written request shall be deemed to be a Committed
Loan Notice for purposes hereof) and in accordance with the requirements of Section
2.02, without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans or Eurocurrency Rate Loans, as applicable, but subject to the
unutilized portion of the Aggregate Commitments and the conditions set forth in Section
4.02. The Swing Line Lender shall furnish the Company with a copy of the applicable
Committed Loan Notice promptly after delivering



51









 






such notice to the Administrative Agent. Each Lender shall make an amount equal to its
Applicable Percentage of the amount specified in such Committed Loan Notice available to the
Administrative Agent in Same Day Funds (and the Administrative Agent may apply Cash
Collateral available with respect to the applicable Swing Line Loan) for the account of the
Swing Line Lender at the Administrative Agent’s Office for Dollar-denominated payments not
later than 1:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject
to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to
have made a Base Rate Committed Loan or Eurocurrency Rate Loan, as applicable, to the
Company or to the applicable Specified Foreign Borrower in such amount. The Administrative
Agent shall remit the funds so received to the Swing Line Lender.




     (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Committed
Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate Committed
Loans or Eurocurrency Rate Loans, as applicable, submitted by the Swing Line Lender as set
forth herein shall be deemed to be a request by the Swing Line Lender that each of the
Lenders fund its risk participation in the relevant Swing Line Loan and each Lender’s
payment to the Administrative Agent for the account of the Swing Line Lender pursuant to
Section 2.04(c)(i) shall be deemed payment in respect of such participation.




     (iii) If any Lender fails to make available to the Administrative Agent for the account
of the Swing Line Lender any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.04(c) by the time specified in Section
2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment is
immediately available to the Swing Line Lender at a rate per annum equal to the applicable
Overnight Rate from time to time in effect, plus any administrative, processing or similar
fees customarily charged by the Swing Line Lender in connection with the foregoing. If such
Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall
constitute such Lender’s Committed Loan included in the relevant Committed Borrowing or
funded participation in the relevant Swing Line Loan, as the case may be. A certificate of
the Swing Line Lender submitted to any Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (iii) shall be conclusive absent manifest
error.




     (iv) Each Lender’s obligation to make Committed Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.04(c) shall be
absolute and unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Lender may have against
the Swing Line Lender, the Company or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided that each Lender’s
obligation to make Committed Loans pursuant to this Section 2.04(c) is subject to
the conditions set forth in Section 4.02. No such funding of risk participations
shall relieve or otherwise impair the obligation of the Company to repay Swing Line Loans,
together with interest as provided herein.



     (d) Repayment of Participations.




     (i) At any time after any Lender has purchased and funded a risk participation in a
Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line
Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage thereof
in the same funds as those received by the Swing Line Lender.



52









 






     (ii) If any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line Lender under
any of the circumstances described in Section 11.05 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay
to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the applicable Overnight Rate. The Administrative
Agent will make such demand upon the request of the Swing Line Lender. The obligations of
the Lenders under this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.



     (e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Company (on behalf of the applicable Specified Foreign Borrower, if
applicable) for interest on the Swing Line Loans. Until a Lender funds its Base Rate Committed
Loan or risk participation pursuant to this Section 2.04 to refinance such Lender’s
Applicable Percentage of any Swing Line Loan, interest in respect of such Lender’s Applicable
Percentage shall be solely for the account of the Swing Line Lender.



     (f) Payments Directly to Swing Line Lender. The Company or the applicable Specified
Foreign Borrower shall make all payments of principal and interest in respect of the Swing Line
Loans directly to the Swing Line Lender.



     2.05 Prepayments.



     (a) Each Borrower may, upon notice from the Company to the Administrative Agent, at any time
or from time to time voluntarily prepay Committed Loans in whole or in part without premium or
penalty; provided that (i) such notice must be received by the Administrative Agent not
later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate
Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Loans
denominated in Special Notice Currencies (including, without limitation, Australian Dollars)) prior
to any date of prepayment of Eurocurrency Rate Loans denominated in Alternative Currencies, and (C)
on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate
Loans denominated in Dollars shall be in a principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Loans denominated in
Alternative Currencies shall be in a minimum principal amount of the applicable Alternative
Currency Equivalent of $5,000,000 or a whole multiple of the applicable Alternative Currency
Equivalent of $1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans
shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof or,
in each case, if less, the entire principal amount thereof then outstanding. Each such notice
shall specify the date and amount of such prepayment and the Type(s) of Committed Loans to be
prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans.
The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and
of the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given
by the Company, the applicable Borrower shall make such prepayment and the payment amount specified
in such notice shall be due and payable on the date specified therein. Any prepayment of a
Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together
with any additional amounts required pursuant to Section 3.05. Subject to Section
2.18, each such prepayment shall be applied to the Committed Loans of the Lenders in accordance
with their respective Applicable Percentages.



     (b) The Company or the applicable Specified Foreign Borrower may, upon notice to the Swing
Line Lender (with a copy to the Administrative Agent), at any time or from time to time,
voluntarily prepay Swing Line Loans in whole or in part without premium or penalty;
provided that (i)



53









 




such notice must be received by the Swing Line Lender and the Administrative Agent not later
than (A) in the case of Domestic Swing Line Loans, 1:00 p.m. on the date of the prepayment and (B)
in the case of Foreign Swing Line Loans, 10:00 a.m. (London time) on the date that is one Business
Day prior to the date of such prepayment and (ii) any such prepayment shall be in a minimum
principal amount (A) $100,000, in the case of Domestic Swing Line Loans and (B) the applicable
Alternative Currency Equivalent of $500,000, in the case of Foreign Swing Line Loans. Each such
notice shall specify the date and amount of such prepayment. If such notice is given by the
Company, the Company shall make such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein.




     (c) If the Administrative Agent notifies the Company at any time that the Total Outstandings
that are not Cash Collateralized by the Company or another Borrower at such time exceed an amount
equal to 105% of the Aggregate Commitments then in effect, then, within two Business Days after
receipt of such notice, the Borrowers shall prepay Loans and/or the Company shall Cash
Collateralize the L/C Obligations in an aggregate amount sufficient to reduce such Outstanding
Amount as of such date of payment or Cash Collateralization to an amount not to exceed 100% of the
Aggregate Commitments then in effect; provided, however, that, subject to the
provisions of Section 2.03(k), the Company shall not be required to Cash Collateralize the
L/C Obligations pursuant to this Section 2.05(c) unless after the prepayment in full of the
Loans the Total Outstandings exceed the Aggregate Commitments then in effect. The Administrative
Agent may, at any time and from time to time after the initial deposit of such Cash Collateral,
request that additional Cash Collateral be provided in order to protect against the results of
further exchange rate fluctuations.



     (d) If the Administrative Agent notifies the Company at any time that the Outstanding Amount
of all Swing Line Loans that are not Cash Collateralized by the Company or another Borrower made to
the Borrowers at such time exceeds an amount equal to 105% of the Swing Line Sublimit then in
effect, then, within two Business Days after receipt of such notice, the Borrowers shall prepay the
Swing Line Loans in an aggregate amount sufficient to reduce such Outstanding Amount as of such
date of payment to an amount not to exceed 100% of the Swing Line Sublimit.



     (e) If the Administrative Agent notifies the Company at any time that the Outstanding Amount
of all Loans made to Foreign Borrowers at such time exceeds an amount equal to 105% of the Maximum
Foreign Borrower Sublimit then in effect, then, within two Business Days after receipt of such
notice, the Foreign Borrowers shall prepay Loans made to them in an aggregate amount sufficient to
reduce such Outstanding Amount of such Loans as of such date of payment to an amount not to exceed
100% of the Maximum Foreign Borrower Sublimit.



     (f) If the Administrative Agent notifies the Company at any time that the Outstanding Amount
of all Loans made to a Foreign Borrower at such time exceeds an amount equal to 105% of the Foreign
Borrower Sublimit applicable to such Foreign Borrower, then, within two Business Days after receipt
of such notice, such Foreign Borrower shall prepay Loans made to it in an aggregate amount
sufficient to reduce such Outstanding Amount of such Loans as of such date of payment to an amount
not to exceed 100% of the Foreign Borrower Sublimit applicable to such Foreign Borrower.



     2.06 Termination or Reduction of Commitments. The Company may, upon notice to the
Administrative Agent, terminate the Aggregate Commitments, or from time to time permanently reduce
the Aggregate Commitments; provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. five Business Days prior to the date of termination
or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any
whole multiple of $1,000,000 in excess thereof, (iii) the Company shall not terminate or reduce the
Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments hereunder,
the Total



54









 




Outstandings would exceed the Aggregate Commitments, and (iv) if, after giving effect to any
reduction of the Aggregate Commitments, the Letter of Credit Sublimit, the Maximum Foreign Borrower
Sublimit, any Foreign Borrower Sublimit or the Swing Line Sublimit exceeds the amount of the
Aggregate Commitments, such Sublimit shall be automatically reduced by the amount of such excess.
The Administrative Agent will promptly notify the Lenders of any such notice of termination or
reduction of the Aggregate Commitments. Any reduction of the Aggregate Commitments shall be
applied to the Commitment of each Lender according to its Applicable Percentage (without giving
effect to any adjustments under Section 2.18). All fees accrued until the effective date
of any termination of the Aggregate Commitments shall be paid on the effective date of such
termination.




     2.07 Repayment of Loans.



     (a) Each Borrower shall repay to the Lenders on the Maturity Date the aggregate principal
amount of Committed Loans made to such Borrower and outstanding on such date.



     (b) The Company or the applicable Specified Foreign Borrower shall repay each Swing Line Loan
made to the Company or such Specified Foreign Borrower, as applicable, on the earlier to occur of
(i) the date ten Business Days after such Loan is made and (ii) the Maturity Date.



     2.08 Interest.



     (a) Subject to the provisions of subsection (b) below, (i) each Eurocurrency Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the Eurocurrency Rate for such Interest Period plus the Applicable Rate
plus (in the case of a Eurocurrency Rate Loan of any Lender which is lent from a Lending
Office in the United Kingdom or a Participating Member State) the Mandatory Cost; (ii) each Loan
denominated in Dollars and made to the Company as a Base Rate Committed Loan shall bear interest on
the outstanding principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Base Rate plus the Applicable Rate; (iii) each Domestic Swing Line Loan shall,
at the option of the Company, bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to (A) the Base Rate plus the
Applicable Rate for Base Rate Loans or (B) the Eurocurrency Rate plus the Applicable Rate
for Eurocurrency Rate Loans and (iv) each Foreign Swing Line Loan shall bear interest at the
Overnight Rate.




(b) (i) If any amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise, such
amount shall thereafter bear interest at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.




     (ii) If any amount (other than principal of any Loan) payable by any Borrower under any
Loan Document is not paid when due (without regard to any applicable grace periods), whether
at stated maturity, by acceleration or otherwise, then upon the request of the Required
Lenders, such amount shall thereafter bear interest at a fluctuating interest rate per annum
at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.




     (iii) Upon the request of the Required Lenders, while any Event of Default exists, the
Borrowers shall pay interest on the principal amount of all outstanding Obligations
hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.



55









 






     (iv) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.



     (c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest hereunder shall be
due and payable in accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.



     2.09 Fees. In addition to certain fees described in subsections (h) and (i) of Section
2.03:



     (a) Commitment Fee. The Company shall pay to the Administrative Agent for the account
of each Lender in accordance with its Applicable Percentage, a commitment fee in Dollars equal to
the Applicable Rate times the actual daily amount by which the Aggregate Commitments exceed
the sum of (i) the Outstanding Amount of Committed Loans and (ii) the Outstanding Amount of L/C
Obligations that are not Cash Collateralized by the Company or another Borrower, subject to
adjustment as provided in Section 2.18. The commitment fee shall accrue at all times
during the Availability Period, including at any time during which one or more of the conditions in
Article IV is not met, and shall be due and payable quarterly in arrears on the tenth
Business Day after the end of each March, June, September and December, commencing with the first
such date to occur after the end of September, 2011, and on the last day of the Availability
Period. The commitment fee shall be calculated quarterly in arrears, and if there is any change in
the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by
the Applicable Rate separately for each period during such quarter that such Applicable Rate was in
effect.



     (b) Other Fees




     (i) The Company shall pay to the Arrangers and the Administrative Agent for their own
respective accounts, in Dollars, fees in the amounts and at the times specified in the Fee
Letters. Such fees shall be fully earned when paid and shall not be refundable for any
reason whatsoever.



     (ii) The Company shall pay to the Lenders, in Dollars, such fees as shall have been
separately agreed upon in writing in the amounts and at the times so specified. Such fees
shall be fully earned when paid and shall not be refundable for any reason whatsoever.



     2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.



     (a) All computations of interest for Base Rate Loans (including Base Rate Loans determined by
reference to the Eurocurrency Rate) shall be made on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed. All other computations of fees and interest shall be made on
the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as
applicable, being paid than if computed on the basis of a 365-day year), or, in the case of
interest in respect of Committed Loans denominated in Alternative Currencies as to which market
practice differs from the foregoing, in accordance with such market practice. Interest shall
accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any
portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that
is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear
interest for one day. Each determination by the Administrative Agent (or, if applicable, the Swing
Line Lender or applicable L/C Issuer) of an interest rate or fee hereunder shall be conclusive and
binding for all purposes, absent manifest error.



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     (b) If, as a result of any restatement of or other adjustment to the financial statements of
the Company or for any other reason, the Company or the Lenders determine that (i) the Consolidated
Net Leverage Ratio as calculated by the Company as of any applicable date was inaccurate and (ii) a
proper calculation of the Consolidated Net Leverage Ratio would have resulted in higher pricing for
such period, the Company shall immediately and retroactively be obligated to pay to the
Administrative Agent for the account of the applicable Lenders or the applicable L/C Issuers, as
the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an
actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy
Code of the United States, automatically and without further action by the Administrative Agent,
any Lender or any L/C Issuer), an amount equal to the excess of the amount of interest and fees
that should have been paid for such period over the amount of interest and fees actually paid for
such period. This paragraph shall not limit the rights of the Administrative Agent, any Lender or
any L/C Issuer, as the case may be, under Section 2.03(c)(iii), 2.03(h) or
2.08(b) or under Article VIII. The Company’s obligations under this paragraph
shall survive the termination of the Aggregate Commitments and the repayment of all other
Obligations hereunder for a period of thirty (30) days after the date of the public filing of the
Company’s annual audited financial statements that include the period during which such termination
and repayment occurred.



     2.11 Evidence of Debt.



     (a) The Credit Extensions made by each Lender and each L/C Issuer shall be evidenced by one or
more accounts or records maintained by such Lender or such L/C Issuer and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by the Administrative
Agent and each Lender or such L/C Issuer shall be conclusive absent manifest error of the amount of
the Credit Extensions made by the Lenders or such L/C Issuer to the Borrowers and the interest and
payments thereon. Any failure to so record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Borrowers hereunder to pay any amount owing with respect to
the Obligations. In the event of any conflict between the accounts and records maintained by any
Lender or any L/C Issuer and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall control in the absence of
manifest error. Upon the request of any Lender to a Borrower made through the Administrative
Agent, such Borrower shall execute and deliver to such Lender (through the Administrative Agent)
its Note, which shall evidence such Lender’s Loans to such Borrower in addition to such accounts or
records. Each Lender may attach schedules to a Note and endorse thereon the date, Type (if
applicable), amount, currency and maturity of its Loans and payments with respect thereto.



     (b) In addition to the accounts and records referred to in subsection (a), each Lender and the
Administrative Agent shall maintain in accordance with its usual practice accounts or records
evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing
Line Loans. In the event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of manifest error.



     2.12 Payments Generally; Administrative Agent’s Clawback.



     (a) General. All payments to be made by any Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein and except with respect to principal of and interest on Loans denominated in an
Alternative Currency and Foreign Swing Line Loans, all payments by the Borrowers hereunder shall be
made to the Administrative Agent, for the account of the respective Lenders (including without
limitation, the Swing Line Lender) to which such payment is owed, at the applicable Administrative
Agent’s Office in Dollars and in Same Day Funds not later than 2:00 p.m. on the date specified
herein. Except as otherwise



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expressly provided herein, all payments by the Borrowers hereunder with respect to principal
and interest on Loans denominated in an Alternative Currency and Foreign Swing Line Loans shall be
made to the Administrative Agent, for the account of the respective Lenders to which such payment
is owed, at the applicable Administrative Agent’s Office in such Alternative Currency and in Same
Day Funds not later than the Applicable Time specified by the Administrative Agent on the dates
specified herein. Without limiting the generality of the foregoing, the Administrative Agent may
require that any payments due under this Agreement be made in the United States. If, for any
reason, any Borrower is prohibited by any 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. The Administrative Agent will promptly distribute to each
Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in
like funds as received by wire transfer to such Lender’s Lending Office. All payments received by
the Administrative Agent (i) after 2:00 p.m., in the case of payments in Dollars, or (ii) after the
Applicable Time specified by the Administrative Agent in the case of payments in an Alternative
Currency, shall in each case be deemed received on the immediately following Business Day and any
applicable interest or fee shall continue to accrue. If any payment to be made by any Borrower
shall come due on a day other than a Business Day, payment shall be made on the immediately
following Business Day, and such extension of time shall be reflected in computing interest or
fees, as the case may be.





(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of
any Committed Borrowing of Eurocurrency Rate Loans (or, in the case of any Committed
Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Committed Borrowing)
that such Lender will not make available to the Administrative Agent such Lender’s share of
such Committed Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with Section 2.02 (or, in the case of a
Committed Borrowing of Base Rate Loans, that such Lender has made such share available in
accordance with and at the time required by Section 2.02) and may, in reliance upon
such assumption, make available to the applicable Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Committed Borrowing
available to the Administrative Agent, then the applicable Lender and the applicable
Borrower severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount in Same Day Funds with interest thereon, for each day from and
including the date such amount is made available to such Borrower to but excluding the date
of payment to the Administrative Agent, at (A) in the case of a payment to be made by such
Lender, the Overnight Rate, plus any administrative, processing or similar fees customarily
charged by the Administrative Agent in connection with the foregoing, and (B) in the case of
a payment to be made by such Borrower, the interest rate otherwise applicable to the Loans
comprising such Committed Borrowing. If such Borrower and such Lender shall pay such
interest to the Administrative Agent for the same or an overlapping period, the
Administrative Agent shall promptly remit to such Borrower the amount of such interest paid
by such Borrower for such period. If such Lender pays its share of the applicable Committed
Borrowing to the Administrative Agent, then the amount so paid shall constitute such
Lender’s Committed Loan included in such Committed Borrowing. Any payment by such Borrower
shall be without prejudice to any claim such Borrower may have against a Lender that shall
have failed to make such payment to the Administrative Agent.




     (ii) Payments by Borrowers; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Company prior to the date on which
any payment is due to the Administrative Agent for the account of the Lenders or any L/C
Issuer hereunder that a Borrower will not make such payment, the Administrative Agent may
assume that such Borrower has made such payment on such date in accordance herewith and may,
in



58









 






reliance upon such assumption, distribute to the Lenders or the applicable L/C Issuer,
as the case may be, the amount due. In such event, if such Borrower has not in fact made
such payment, then each of the Lenders or the applicable L/C Issuer, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or such L/C Issuer, in Same Day Funds with interest thereon, for
each day from and including the date such amount is distributed to it to but excluding the
date of payment to the Administrative Agent, at the Overnight Rate.



     A notice of the Administrative Agent to any Lender or the Company with respect to any amount
owing under this subsection (b) shall be conclusive, absent manifest error.



     (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender to any Borrower as provided in
the foregoing provisions of this Article II, and such funds are not made available to such
Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set
forth in Article IV are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from such Lender) to such
Lender, without interest.



     (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Committed Loans, to fund participations in Letters of Credit and Swing Line Loans and to make
payments pursuant to Section 11.04(c) are several and not joint. The failure of any Lender
to make any Committed Loan, to fund any such participation or to make any payment under Section
11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the failure of any other
Lender to so make its Committed Loan, to purchase its participation or to make its payment under
Section 11.04(c).



     (e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.



     2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff
or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of
the Committed Loans made by it, or the participations in L/C Obligations or in Swing Line Loans
held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of
such Committed Loans or participations and accrued interest thereon greater than its pro
rata share thereof as provided herein, then the Lender receiving such greater proportion
shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value)
participations in the Committed Loans and subparticipations in L/C Obligations and Swing Line Loans
of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Committed Loans and other amounts owing them,
provided that:




     (i) if any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent of such
recovery, without interest; and




     (ii) the provisions of this Section shall not be construed to apply to (x) any payment
made by or on behalf of a Borrower pursuant to and in accordance with the express terms of
this Agreement (including the application of funds arising from the existence of a
Defaulting Lender), (y) the application of Cash Collateral provided for in Section
2.17 or Section 6.16, or (z) any



59









 






payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Committed Loans or subparticipations in L/C Obligations or Swing
Line Loans to any assignee or participant, other than an assignment to the Company or any
Subsidiary or Affiliate thereof (as to which the provisions of this Section shall apply).



     Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Borrower rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of such Borrower in the amount
of such participation.



     2.14 Designated Borrowers; Agency of Company for Foreign Borrowers.



     (a) Subject to Section 6.14(e), the Company may at any time, upon not less than 15
Business Days’ notice from the Company to the Administrative Agent (or such shorter period as may
be agreed by the Administrative Agent in its sole discretion), designate any Wholly Owned Foreign
Subsidiary of the Company that is a Restricted Subsidiary (an “Applicant Borrower”) as a
Designated Borrower to receive Loans hereunder by delivering to the Administrative Agent (which
shall promptly deliver counterparts thereof to each Lender) a duly executed notice and agreement in
substantially the form of Exhibit H-1 (a “Designated Borrower Request and Assumption
Agreement”), which shall include a proposed Foreign Borrower Sublimit to be applicable to such
Applicant Borrower. The parties hereto acknowledge and agree that prior to any Applicant Borrower
becoming entitled to utilize the credit facilities provided for herein the Administrative Agent
shall have received on behalf of the Lenders such supporting resolutions, incumbency certificates,
opinions of counsel and other documents or information, in form, content and scope reasonably
satisfactory to the Administrative Agent, as may be required by the Administrative Agent or the
Required Lenders in their sole discretion, and Notes signed by such new Borrowers to the extent any
Lenders so require. If the Administrative Agent and each of the Lenders agree that an Applicant
Borrower shall be entitled to be a Borrower and a Foreign Borrower and to receive Loans hereunder
in an aggregate amount not to exceed the Foreign Borrower Sublimit to be applicable to such Foreign
Borrower, then within one (1) Business Day following the Administrative Agent’s receipt of all such
requested resolutions, incumbency certificates, opinions of counsel and other documents or
information, the Administrative Agent shall send a notice in substantially the form of Exhibit
H-2 (a “Designated Borrower Notice”) to the Company and the Lenders specifying that the
Applicant Borrower shall constitute a Designated Borrower for purposes hereof, whereupon each of
the Lenders agrees to permit such Designated Borrower to receive Loans hereunder, on the terms and
conditions set forth herein, and each of the parties agrees that such Designated Borrower otherwise
shall be a Foreign Borrower and a Borrower for all purposes of this Agreement; provided
that no Committed Loan Notice or Letter of Credit Application may be submitted by or on behalf of
such Designated Borrower until the date five Business Days after the date such notice is delivered;
provided further, that the Lenders agree that, if at the time of designation, such
Applicant Borrower is organized under the Laws of a jurisdiction in which a then-existing Foreign
Borrower is organized, such Applicant Borrower may become a “Designated Borrower” pursuant
hereto (subject to satisfaction of the other conditions set forth in this Section 2.14)
without any requirement of further consent from the Lenders.



     (b) The Foreign Obligations of all Foreign Borrowers (including each Designated Borrower)
shall be joint and several in nature.



     (c) Each Foreign Borrower, including each Foreign Subsidiary of the Company that becomes a
“Designated Borrower” after the Closing Date pursuant to this Section 2.14, hereby
irrevocably appoints the Company as its agent for all purposes relevant to this Agreement and each
of the other Loan Documents, including (i) the giving and receipt of notices, (ii) the execution
and delivery of all documents, instruments and certificates contemplated herein and all
modifications hereto, and (iii) the



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receipt of the proceeds of any Loans made by the Lenders to any Foreign Borrower hereunder.
Any acknowledgment, consent, direction, certification or other action which might otherwise be
valid or effective only if given or taken by all Borrowers, or by each Borrower acting singly,
shall be valid and effective if given or taken by only the Company, whether or not any such other
Borrower joins therein. Any notice, demand, consent, acknowledgement, direction, certification or
other communication delivered to the Company in accordance with the terms of this Agreement shall
be deemed to have been delivered to each Foreign Borrower.




     2.15 [Reserved].



     2.16 Increase in Commitments.



     (a) Request for Increase. The Borrowers may from time to time, request by notice to
the Administrative Agent (x) an increase in the Aggregate Commitments (each, a “Revolving
Credit Increase”) or (y) one or more term loan tranches (each, an “Incremental Term
Loan”; each Incremental Term Loan and each Revolving Credit Increase, collectively, referred to
as the “Incremental Increases”); provided that (i) the principal amount for all
such Incremental Increases in the aggregate since the Closing Date (including the then requested
Incremental Increase) shall not exceed the Available Increase Amount, (ii) any such request for an
Incremental Increase shall be in a minimum amount of $75,000,000 (or a lesser amount in the event
such amount represents all remaining availability under this Section), (iii) the aggregate
principal amount of all Revolving Credit Increases (including the then requested Revolving Credit
Increase) shall not exceed $300,000,000, (iv) no Revolving Credit Increase shall (A) increase the
Letter of Credit Sublimit without the consent of each L/C Issuer, (B) increase the Swing Line
Sublimit without the consent of the Swing Line Lender, (C) increase the Maximum Foreign Borrower
Sublimit by more than two-thirds of the amount of such Revolving Credit Increase, or (D) increase
the Foreign Borrower Sublimit of any Foreign Borrower, (v) no Incremental Term Loan shall mature
earlier than the Maturity Date, and (vi) each Incremental Increase shall constitute Obligations
hereunder and shall be guaranteed and secured pursuant to the Guaranties and the Security
Instruments on a pari passu basis with the other Obligations hereunder.



     (b) Process for Increase. Incremental Increases may be (but shall not be required to
be) provided by any existing Lender, in each case on terms permitted in this Section 2.16
and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other Person
that qualifies as an Eligible Assignee (each such other Person, an “Additional Lender”)
pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative
Agent; provided that (i) the Administrative Agent shall have consented (in each case, such
consent not to be unreasonably withheld) to each such Lender or proposed Additional Lender
providing such Incremental Increase and (ii) in the case of any Revolving Credit Increase, each L/C
Issuer and the Swing Line Lender shall have consented (in each case, such consent not to be
unreasonably withheld) to each such Lender or proposed Additional Lender providing such Revolving
Credit Increase if such consent by the L/C Issuers or the Swing Line Lender, as the case may be,
would be required under Section 11.06(b) for an assignment of Committed Loans or
Commitments to such Lender or proposed Additional Lender. No Lender shall have any obligation to
increase its Commitment or participate in the Incremental Term Loan, as the case may be, and no
consent of any Lender, other than the Lenders agreeing to provide any portion of an Incremental
Increase, shall be required to effectuate such Incremental Increase.



     (c) Effective Date and Allocations. The Administrative Agent and the Company shall
determine the effective date of any Incremental Increase (the “Increase Effective Date”)
and the final allocations therefor. The Administrative Agent shall promptly notify the Company and
the Lenders of the final allocation of such Incremental Increase and the Increase Effective Date.




61












 





     (d) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, the Company shall deliver to the Administrative Agent a certificate of each Loan Party
dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a
Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such
Loan Party approving or consenting to such Incremental Increase, (ii) in the case of the Borrowers,
certifying that, before and after giving effect to such increase, (A) the representations and
warranties contained in Article V and the other Loan Documents are true and correct in all
material respects (or, if qualified by materiality or Material Adverse Effect, in all respects) on
and as of the Increase Effective Date, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true and correct as of
such earlier date, and except that for purposes of this Section 2.16, the representations
and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to
refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of
Section 6.01, (B) no Default exists and is continuing and (C) the Company and its
Restricted Subsidiaries are in pro forma compliance with each of the financial covenants contained
in Section 7.12. To the extent that any Incremental Increase shall take the form of an
Incremental Term Loan, this Agreement shall be amended (without the need to obtain the consent of
any Lender or any L/C Issuer other than the Lenders providing such Incremental Term Loans), in form
and substance satisfactory to the Administrative Agent, to include such terms as are customary for
a term loan commitment, including mandatory prepayments, assignments and voting provisions;
provided that the covenants, defaults and similar non-economic provisions applicable to any
Incremental Term Loan (i) shall be no more restrictive than the corresponding terms set forth in
the then existing Loan Documents without the express written consent of the Administrative Agent
and (ii) shall not contravene any of the terms of the then existing Loan Documents. Each Revolving
Credit Increase shall have the same terms as the outstanding Committed Loans and be part of the
existing revolving credit facilities hereunder. Upon each Revolving Credit Increase (x) each
Lender having a Commitment immediately prior to such increase will automatically and without
further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit
Increase (each, a “Revolving Credit Increase Lender”) in respect of such increase, and each
such Revolving Credit Increase Lender will automatically and without further act be deemed to have
assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and
Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of
participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters
of Credit and (ii) participations hereunder in Swing Line Loans, will, in each case, equal each
Lender’s Applicable Percentage (after giving effect to such increase in the Commitments) and (y)
if, on the date of such increase there are any Committed Loans outstanding, such Committed Loans
shall, on or prior to the effectiveness of such Revolving Credit Increase, be prepaid from the
proceeds of additional Committed Loans made hereunder (reflecting such increase in Commitments),
which prepayment shall be accompanied by any amounts required to be paid pursuant to Section
3.05 to the extent necessary to keep the outstanding Committed Loans ratable with any revised
Applicable Percentages arising from such Revolving Credit Increase.



     (e) Conflicting Provisions. This Section shall supersede any provisions in
Section 2.13 or 11.01 to the contrary.



     2.17 Cash Collateral.



     (a) Certain Credit Support Events. Upon the request of the Administrative Agent or
the applicable L/C Issuer if, as of the Letter of Credit Expiration Date, any L/C Obligation for
any reason remains outstanding and has not been Cash Collateralized as an Extended Letter of Credit
pursuant to Section 6.16, the Company shall, in each case, immediately Cash Collateralize
the then Outstanding Amount of all L/C Obligations. At any time that there shall exist a
Defaulting Lender, no later than one (1) Business Day following the demand of the Administrative
Agent, any L/C Issuer or the Swing Line Lender, the Company shall deliver to the Administrative
Agent Cash Collateral in an amount sufficient to



62









 




cover all Fronting Exposure (after giving effect to Section 2.18(a)(iv) and any Cash
Collateral provided by the Defaulting Lender).




     (b) Grant of Security Interest. All Cash Collateral (other than credit support not
constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit
accounts at Bank of America. The Company, and to the extent provided by any Lender, such Lender,
hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the
Administrative Agent, the L/C Issuers and the Lenders (including the Swing Line Lender), and agrees
to maintain, a first priority security interest in all such cash, deposit accounts and all balances
therein, and all other property so provided as collateral pursuant to this Agreement, and in all
proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be
applied pursuant to Section 2.17(c). If at any time the Administrative Agent determines
that Cash Collateral is subject to any right or claim of any Person other than the Administrative
Agent for the benefit of the Administrative Agent, the L/C Issuers and the Lenders (including the
Swing Line Lender) as herein provided, or that the total amount of such Cash Collateral is less
than the applicable Fronting Exposure and other obligations secured thereby, the Company or the
relevant Defaulting Lender will, promptly upon demand by the Administrative Agent, pay or provide
to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such
deficiency.



     (c) Application. Notwithstanding anything to the contrary contained in this
Agreement, Cash Collateral provided under any of this Section 2.17 or Sections
2.03, 2.04, 2.05, 2.18, 6.16 or 8.02 in respect of
Letters of Credit or Swing Line Loans shall be held and applied to the satisfaction of the specific
L/C Obligations, Swing Line Loans, obligations to fund participations therein (including, as to
Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other
obligations for which the Cash Collateral was so provided, prior to any other application of such
property as may be provided for herein.



     (d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce
Fronting Exposure or other obligations shall be released promptly following (i) the elimination of
the applicable Fronting Exposure or other obligations giving rise thereto (including by the
termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee
following compliance with Section 11.06(b)(vi))) or (ii) the Administrative Agent’s good
faith determination that there exists excess Cash Collateral; provided that (x) Cash
Collateral furnished by or on behalf of a Loan Party shall not be released during the continuance
of a Default (and following application as provided in this Section 2.17 may be otherwise
applied in accordance with Section 8.03), and (y) the Person providing Cash Collateral and
the applicable L/C Issuer or Swing Line Lender, as applicable, may agree that Cash Collateral shall
not be released but instead held to support future anticipated Fronting Exposure or other
obligations.



     2.18 Defaulting Lenders.



     (a) Adjustments. Notwithstanding anything to the contrary contained in this
Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no
longer a Defaulting Lender, to the extent permitted by applicable Law:




     (i) Waivers and Amendments. That Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in Section 11.01.




     (ii) Reallocation of Payments. Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of that Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise,
and including any



63









 







amounts made available to the Administrative Agent by that Defaulting Lender pursuant
to Section 11.08), shall be applied at such time or times as may be determined by
the Administrative Agent as follows: first, to the payment of any amounts owing by that
Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro
rata basis of any amounts owing by that Defaulting Lender to a L/C Issuer or Swing Line
Lender hereunder; third, if so determined by the Administrative Agent or requested by the
applicable L/C Issuer or Swing Line Lender, to be held as Cash Collateral for future funding
obligations of that Defaulting Lender of any participation in any Swing Line Loan or Letter
of Credit; fourth, as the Company may request (so long as no Default exists), to the funding
of any Loan in respect of which that Defaulting Lender has failed to fund its portion
thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if
so determined by the Administrative Agent and the Company, to be held in a non-interest
bearing deposit account and released in order to satisfy obligations of that Defaulting
Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the
Lenders, any L/C Issuer or Swing Line Lender as a result of any judgment of a court of
competent jurisdiction obtained by any Lender, any L/C Issuer or Swing Line Lender against
that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations
under this Agreement; seventh, so long as no Default exists, to the payment of any amounts
owing to any of the Borrowers as a result of any judgment of a court of competent
jurisdiction obtained by any of the Borrowers against that Defaulting Lender as a result of
that Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to that
Defaulting Lender or as otherwise directed by a court of competent jurisdiction;
provided that if (x) such payment is a payment of the principal amount of any Loans
or L/C Borrowings in respect of which that Defaulting Lender has not fully funded its
appropriate share and (y) such Loans or L/C Borrowings were made at a time when the
conditions set forth in Section 4.02 were satisfied or waived, such payment shall be
applied solely to pay the Loans of, and L/C Borrowings owed to, all non-Defaulting Lenders
on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings
owed to, that Defaulting Lender. Any payments, prepayments or other amounts paid or payable
to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender
or to post Cash Collateral pursuant to this Section 2.18(a)(ii) shall be deemed paid
to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.




     (iii) Certain Fees. That Defaulting Lender (x) shall not be entitled to
receive any commitment fee pursuant to Section 2.09(a) for any period during which
that Lender is a Defaulting Lender (and the Company shall not be required to pay any such
fee that otherwise would have been required to have been paid to that Defaulting Lender) and
(y) shall be limited in its right to receive Letter of Credit Fees as provided in
Section 2.03(h).




     (iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure.
During any period in which there is a Defaulting Lender, for purposes of computing the
amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund
participations in Letters of Credit or Swing Line Loans pursuant to Sections 2.03
and 2.04, the “Applicable Percentage” of each non-Defaulting Lender shall be
computed without giving effect to the Commitment of that Defaulting Lender; provided
that (i) each such reallocation shall be given effect only if, at the date the applicable
Lender becomes a Defaulting Lender, no Default exists; and (ii) the aggregate obligation of
each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit
and Swing Line Loans shall not exceed the positive difference, if any, of (1) the Commitment
of that non-Defaulting Lender minus (2) the aggregate Outstanding Amount of the
Committed Loans of that Lender. No reallocation hereunder shall constitute a waiver or
release of any claim of any party hereunder against a Defaulting Lender arising from that
Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender as
a result of such non-Defaulting Lender’s increased exposure following such reallocation.



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     (b) Defaulting Lender Cure. If the Company, the Administrative Agent, Swing Line
Lender and each L/C Issuer agree in writing in their sole discretion that a Defaulting Lender
should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the
parties hereto, whereupon as of the effective date specified in such notice and subject to any
conditions set forth therein (which may include arrangements with respect to any Cash Collateral),
that Lender will, to the extent applicable, purchase that portion of outstanding Loans of the other
Lenders or take such other actions as the Administrative Agent may determine to be necessary to
cause the Committed Loans and funded and unfunded participations in Letters of Credit and Swing
Line Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable
Percentages (without giving effect to Section 2.18(a)(iv)), whereupon that Lender will
cease to be a Defaulting Lender; provided that no adjustments will be made retroactively
with respect to fees accrued or payments made by or on behalf of the Company while that Lender was
a Defaulting Lender; and provided, further, that except to the extent otherwise
expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will
constitute a waiver or release of any claim of any party hereunder arising from that Lender’s
having been a Defaulting Lender.



     2.19 Designation of Subsidiaries.



     (a) Designation of Material Subsidiaries.




     (i) At any time after the Closing Date and upon written notice to the Administrative
Agent, the Company may designate any Subsidiary as a Material Subsidiary.




     (ii) If, at the time a Compliance Certificate is delivered pursuant to Section
6.02(b), the Material Subsidiaries that are Domestic Subsidiaries are insufficient to
satisfy each of the thresholds set forth in part (a) of the definition of Material
Subsidiaries, the Company shall, no later than fifteen days after the date of delivery of
such Compliance Certificate, designate in writing to the Administrative Agent such
additional Designated Subsidiaries as “Material Subsidiaries” as are necessary to comply
with such definition.




     (iii) In the case of any designations pursuant to this Section each such designated
Subsidiary shall (unless such Subsidiary is an Excluded Subsidiary) comply with all the
applicable provisions of Section 6.14 within the time provided therein.



     (b) Designation of Unrestricted and Restricted Subsidiaries. The Company may, at any
time after the Closing Date and upon written notice to the Administrative Agent:




     (i) designate any Foreign Subsidiary as an Unrestricted Subsidiary; provided
that:




     (A) such Foreign Subsidiary has no Indebtedness that is recourse to, Guaranteed
by, or secured by a Lien on the assets of, the Company or any of its Restricted
Subsidiaries;




     (B) the Company and its Restricted Subsidiaries are in pro forma compliance
with each of the covenants in Section 7.12, immediately before and
immediately after giving effect to such designation;




     (C) at the time of such designation, the aggregate amount of all Investments in
such Foreign Subsidiaries (measured at the fair market value thereof at the time of
such designation) are permitted under subsections (h) or (i) of Section 7.02
(or a combination of both such subsections), it being understood and agreed that the
aggregate



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amount of all such Investments shall from and after such designation be a
utilization of one or both such subsections;




     (D) the Available Liquidity is not less than $150,000,000 at the time of and
immediately after giving effect to any such designation; and




     (E) no Foreign Subsidiary may be so designated unless each of its direct and
indirect Subsidiaries satisfies each of the requirements in clauses (A) through (D)
of this Section 2.19(b)(i); and




     (ii) designate any Unrestricted Subsidiary as a Restricted Subsidiary so long as (A) no
Default shall have occurred and be continuing at the time of such re-designation or would
result therefrom, (B) the Company and its Restricted Subsidiaries are in pro forma
compliance with each of the covenants set forth in Section 7.12 both immediately
before and immediately after giving effect to such re-designation, (C) if such Subsidiary is
a Material Subsidiary and not an Excluded Subsidiary, all actions required in Section
6.14 (as if such Subsidiary were a new Subsidiary) have been taken and (D) at the time
of such designation all Indebtedness of such Subsidiary shall be permitted pursuant to one
or more applicable exceptions to the limitations on Indebtedness contained in Section
7.03 and all Investments of such Subsidiary shall be permitted pursuant to one or more
applicable exceptions to the limitations on Investments contained in Section 7.02.



     Any Foreign Subsidiary that is not designated as an Unrestricted Subsidiary shall be a
Restricted Subsidiary for all purposes in this Agreement and the other Loan Documents. Any
designation of a Foreign Subsidiary as an Unrestricted Subsidiary or a Restricted Subsidiary shall
(x) be deemed a representation and warranty by the Company that each of the requirements in clause
(b)(i) or (b)(ii) of this Section, as applicable, are satisfied in all respects and (y) with
respect to any designation of an Unrestricted Subsidiary, also serve as an effective designation of
each of its Subsidiaries as Unrestricted Subsidiaries for purposes of this Agreement and the other
Loan Documents.



ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes.



     (a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.




     (i) Any and all payments by or on account of any obligation of the respective Borrowers
hereunder or under any other Loan Document shall to the extent permitted by applicable Laws
be made free and clear of and without reduction or withholding for any Taxes. If, however,
applicable Laws require any Borrower or the Administrative Agent to withhold or deduct any
Tax, such Tax shall be withheld or deducted in accordance with such Laws as determined by
such Borrower or the Administrative Agent, as the case may be, upon the basis of the
information and documentation to be delivered pursuant to subsection (e) below.




     (ii) If any Borrower or the Administrative Agent shall be required by the Code to
withhold or deduct any Taxes, including both United States Federal backup withholding and
withholding taxes, from any payment, then (A) the Administrative Agent shall withhold or
make such deductions as are determined by the Administrative Agent to be required based upon
the information and documentation it has received pursuant to subsection (e) below, (B) the



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Administrative Agent shall timely pay the full amount withheld or deducted to the
relevant Governmental Authority in accordance with the Code, and (C) to the extent that the
withholding or deduction is made on account of Indemnified Taxes or Other Taxes, the sum
payable by such Borrower shall be increased as necessary so that after any required
withholding or the making of all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or L/C Issuer,
as the case may be, receives an amount equal to the sum it would have received had no such
withholding or deduction been made.




     (iii) If any Borrower or the Administrative Agent shall be required by any applicable
Laws other than the Code to withhold or deduct any Taxes from any payment, then (A) such
Borrower or the Administrative Agent, as required by such Laws, shall withhold or make such
deductions as are determined by it to be required based upon the information and
documentation it has received pursuant to subsection (e) below, (B) such Borrower or the
Administrative Agent, to the extent required by such Laws, shall timely pay the full amount
so withheld or deducted by it to the relevant Governmental Authority in accordance with such
Laws, and (C) to the extent that the withholding or deduction is made on account of
Indemnified Taxes or Other Taxes, the sum payable by such Borrower shall be increased as
necessary so that after any required withholding or the making of all required deductions
(including deductions applicable to additional sums payable under this Section) the
Administrative Agent, Lender or L/C Issuer, as the case may be, receives an amount equal to
the sum it would have received had no such withholding or deduction been made.



     (b) Payment of Other Taxes by the Borrowers. Without limiting the provisions of
subsection (a) above, each Borrower shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable Laws.



     (c) Tax Indemnifications.




     (i) Without limiting the provisions of subsection (a) or (b) above, each Borrower
shall, and does hereby, indemnify the Administrative Agent, each Lender and each L/C Issuer,
and shall make payment in respect thereof within 10 days after demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section) withheld or
deducted by such Borrower or the Administrative Agent or paid by the Administrative Agent,
such Lender or such L/C Issuer, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. Each Borrower shall also, and does hereby, indemnify the
Administrative Agent, and shall make payment in respect thereof within 10 days after demand
therefor, for any amount which a Lender or a L/C Issuer for any reason fails to pay
indefeasibly to the Administrative Agent as required by clause (ii) of this subsection. A
certificate as to the amount of any such payment or liability delivered to a Borrower by a
Lender or a L/C Issuer (with a copy to the Administrative Agent), or by the Administrative
Agent on its own behalf or on behalf of a Lender or a L/C Issuer, shall be conclusive absent
manifest error.




     (ii) Without limiting the provisions of subsection (a) or (b) above, each Lender and
each L/C Issuer shall, and does hereby, indemnify each Borrower and the Administrative
Agent, and shall make payment in respect thereof within 10 days after demand therefor,
against any and all Taxes and any and all related losses, claims, liabilities, penalties,
interest and expenses (including the fees, charges and disbursements of any counsel for such
Borrower or the Administrative Agent) incurred by or asserted against such Borrower or the
Administrative Agent



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by any Governmental Authority as a result of the failure by such Lender or such L/C
Issuer, as the case may be, to deliver, or as a result of the inaccuracy, inadequacy or
deficiency of, any documentation required to be delivered by such Lender or such L/C Issuer,
as the case may be, to such Borrower or the Administrative Agent pursuant to subsection (e)
and any Taxes attributable to such Lender’s failure to comply with the provisions of
Section 11.06(d) relating to the maintenance of a Participant Register. Each Lender
and each L/C Issuer hereby authorizes the Administrative Agent to set off and apply any and
all amounts at any time owing to such Lender or such L/C Issuer, as the case may be, under
this Agreement or any other Loan Document against any amount due to the Administrative Agent
under this clause (ii). The agreements in this clause (ii) shall survive the resignation
and/or replacement of the Administrative Agent, any assignment of rights by, or the
replacement of, a Lender or a L/C Issuer, the termination of the Aggregate Commitments and
the repayment, satisfaction or discharge of all other Obligations.



     (d) Evidence of Payments. Upon request by a Borrower or the Administrative Agent, as
the case may be, after any payment of Taxes by such Borrower or by the Administrative Agent to a
Governmental Authority as provided in this Section 3.01, such Borrower shall deliver to the
Administrative Agent or the Administrative Agent shall deliver to such Borrower, as the case may
be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of any return required by Laws to report such payment or other evidence of
such payment reasonably satisfactory to such Borrower or the Administrative Agent, as the case may
be.



     (e) Status of Lenders; Tax Documentation.




     (i) Each Lender shall deliver to the Company and to the Administrative Agent, at the
time or times prescribed by applicable Laws or when reasonably requested by the Company or
the Administrative Agent, such properly completed and executed documentation prescribed by
applicable Laws or by the taxing authorities of any jurisdiction and such other reasonably
requested information as will permit the Company or the Administrative Agent, as the case
may be, to determine (A) whether or not payments made by the respective Borrowers hereunder
or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate
of withholding or deduction, and (C) such Lender’s entitlement to any available exemption
from, or reduction of, applicable Taxes in respect of all payments to be made to such Lender
by the respective Borrowers pursuant to this Agreement or otherwise to establish such
Lender’s status for withholding tax purposes in the applicable jurisdictions.




     (ii) Without limiting the generality of the foregoing, if a Borrower is resident for
tax purposes in the United States,




     (A) any Lender that is a “United States person” within the meaning of Section
7701(a)(30) of the Code shall deliver to the Company and the Administrative Agent
executed originals of Internal Revenue Service Form W-9 or such other documentation
or information prescribed by applicable Laws or reasonably requested by the Company
on behalf of such Borrower or the Administrative Agent as will enable such Borrower
or the Administrative Agent, as the case may be, to determine whether or not such
Lender is subject to backup withholding or information reporting requirements; and




     (B) each Foreign Lender that is entitled under the Code or any applicable
treaty to an exemption from or reduction of withholding tax with respect to payments
hereunder or under any other Loan Document shall deliver to the Company and the
Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender
under this



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Agreement (and from time to time thereafter upon the request of the Company on
behalf of such Borrower or the Administrative Agent, but only if such Foreign Lender
is legally entitled to do so), whichever of the following is applicable:




     (I) executed originals of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States
is a party,




     (II) executed originals of Internal Revenue Service Form W-8ECI,




     (III) executed originals of Internal Revenue Service Form W-8IMY and
all required supporting documentation,




     (IV) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a “bank”
within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent
shareholder” of such Borrower within the meaning of section 881(c)(3)(B) of
the Code, or (C) a “controlled foreign corporation” described in section
881(c)(3)(C) of the Code and (y) executed originals of Internal Revenue
Service Form W-8BEN, or




     (V) executed originals of any other form prescribed by applicable Laws
as a basis for claiming exemption from or a reduction in United States
Federal withholding tax together with such supplementary documentation as
may be prescribed by applicable Laws to permit such Borrower or the
Administrative Agent to determine the withholding or deduction required to
be made.




     (iii) Each Lender shall promptly (A) notify the Company and the Administrative Agent of
any change in circumstances which would modify or render invalid any claimed exemption or
reduction, and (B) take such steps as shall not be materially disadvantageous to it, in the
reasonable judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable Laws of any
jurisdiction that any Borrower or the Administrative Agent make any withholding or deduction
for Taxes from amounts payable to such Lender.




     (iv) Each of the Borrowers shall promptly deliver to the Administrative Agent or any
Lender, as the Administrative Agent or such Lender shall reasonably request, on or prior to
the Closing Date (or such later date on which it first becomes a Borrower), and in a timely
fashion thereafter, such documents and forms required by any relevant taxing authorities
under the Laws of any jurisdiction, duly executed and completed by such Borrower, as are
required to be furnished by such Lender or the Administrative Agent under such Laws in
connection with any payment by the Administrative Agent or any Lender of Taxes or Other
Taxes, or otherwise in connection with the Loan Documents, with respect to such
jurisdiction.




     (v) 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 Company and the
Administrative Agent at the time or times prescribed by law and at such time or times
reasonably requested by the Company or the Administrative Agent such documentation
prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the
Code) and such



69









 







additional documentation reasonably requested by the Company or the Administrative
Agent as may be necessary for the Company and the Administrative Agent to comply with their
obligations under FATCA and to determine that such Lender has complied with such Lender’s
obligations under FATCA or to determine the amount to deduct and withhold from such payment.
Solely for purposes of this clause (v), “FATCA” shall include any amendments made to FATCA
after the date of this Agreement.



     (f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time
shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a
Lender or a L/C Issuer, or have any obligation to pay to any Lender or any L/C Issuer, any refund
of Taxes withheld or deducted from funds paid for the account of such Lender or such L/C Issuer, as
the case may be. If the Administrative Agent, any Lender or any L/C Issuer determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by any Borrower or with respect to which any Borrower has paid additional amounts
pursuant to this Section, it shall pay to such Borrower an amount equal to such refund (but only to
the extent of indemnity payments made, or additional amounts paid, by such Borrower under this
Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses and net of any loss or gain realized in the conversion of such funds from or
to another currency incurred by the Administrative Agent, such Lender or such L/C Issuer, as the
case may be, and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that each Borrower, upon the request of
the Administrative Agent, such Lender or such L/C Issuer, agrees to repay the amount paid over to
such Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or such L/C Issuer in the event the
Administrative Agent, such Lender or such L/C Issuer is required to repay such refund to such
Governmental Authority. This subsection shall not be construed to require the Administrative
Agent, any Lender or any L/C Issuer to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to any Borrower or any other Person.



     3.02 Illegality. If any Lender in good faith determines (which such determination shall,
absent manifest error, be final and conclusive and binding upon all parties) that any Law has made
it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender
or its applicable Lending Office to make, maintain or fund Loans (whether denominated in Dollars or
an Alternative Currency) whose interest is determined by reference to the Eurocurrency Rate, or to
determine or charge interest rates based upon the Eurocurrency Rate, or any Governmental Authority
has imposed material restrictions on the authority of such Lender to purchase or sell, or to take
deposits of, Dollars or any Alternative Currency in the applicable interbank market, then, on
notice thereof by such Lender to the Company through the Administrative Agent, (i) any obligation
of such Lender to make or continue Eurocurrency Rate Loans in the affected currency or currencies
or, in the case of Eurocurrency Rate Loans in Dollars, to convert Base Rate Committed Loans to
Eurocurrency Rate Loans, shall be suspended and (ii) if such notice asserts the illegality of such
Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference
to the Eurocurrency Rate component of the Base Rate, the interest rate on which Base Rate Loans of
such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent
without reference to the Eurocurrency Rate component of the Base Rate, in each case until such
Lender notifies the Administrative Agent and the Company that the circumstances giving rise to such
determination no longer exist (which such Lender agrees to do promptly upon the occurrence
thereof). Upon receipt of such notice, (x) the Borrowers shall, upon demand from such Lender (with
a copy to the Administrative Agent), prepay or convert all such Eurocurrency Rate Loans of such
Lender to (A) in the case of such Loans that are made to the Company and denominated in Dollars,
Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to
avoid such illegality, be determined by the Administrative Agent without reference to the
Eurocurrency Rate component of the Base Rate), or (B) in the case of any other Loan, a Loan



70









 




bearing interest at the applicable Overnight Rate for the currency in which such Loan was
denominated prior to such conversion plus the Applicable Rate for Eurocurrency Rate Loans.
Such prepayment or conversion shall occur either on the last day of the Interest Period therefor,
if such Lender may lawfully continue to maintain such Eurocurrency Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such Eurocurrency Rate Loans.
Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount
so prepaid or converted.




     3.03 Inability to Determine Rates. If the Required Lenders in good faith determine (which
such determination shall, absent manifest error, be final and conclusive and binding upon all
parties) that for any reason in connection with any request for a Eurocurrency Rate Loan or a
conversion to or continuation thereof that (a) deposits (whether in Dollars or an Alternative
Currency) are not being offered to banks in the applicable offshore interbank market for such
currency for the applicable amount and Interest Period of such Eurocurrency Rate Loan, (b) adequate
and reasonable means do not exist for determining the Eurocurrency Rate for any requested Interest
Period with respect to a proposed Eurocurrency Rate Loan (whether denominated in Dollars or an
Alternative Currency) or in connection with an existing or proposed Base Rate Loan, or (c) the
Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate
Loan does not adequately and fairly reflect the cost to such Lenders of funding such Eurocurrency
Rate Loan, the Administrative Agent will promptly so notify the Company and each Lender.
Thereafter, (x) the obligation of the Lenders to make or maintain Eurocurrency Rate Loans in the
affected currency or currencies shall be suspended and (y) in the event of a determination
described in the preceding sentence with respect to the Eurocurrency Rate component of the Base
Rate, the utilization of the Eurocurrency Rate component in determining the Base Rate shall be
suspended, in each case until the Administrative Agent (upon the instruction of the Required
Lenders) revokes such notice. Upon receipt of such notice, the Company may revoke any pending
request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans in the
affected currency or currencies or, failing that, will be deemed to have converted such request
into a request for a Committed Borrowing of (or a conversion to) (A) in the case of such Loans that
are (or are proposed to be) made to the Company and denominated in Dollars, Base Rate Loans in the
amount specified therein or (B) in the case of any other Loans, a Loan bearing interest at the
Overnight Rate for the requested currency, or in the case of a conversion of an existing Loan, the
currency in which such Loan was denominated prior to such conversion plus the Applicable
Rate for Eurocurrency Rate Loans.



     3.04 Increased Costs; Reserves on Eurocurrency Rate Loans.



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




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except (A) any reserve requirement
contemplated by Section 3.04(e) and (B) the requirements of the Bank of England and
the Financial Services Authority or the European Central Bank reflected in the Mandatory
Cost, other than as set forth below) or the applicable L/C Issuer;




     (ii) subject any Lender or any L/C Issuer to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any Eurocurrency Rate Loan made by it, or change the basis of taxation of payments to such
Lender or such L/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change in the rate of, any
Excluded Tax payable by such Lender or such L/C Issuer);



71









 






     (iii) result in the failure of the Mandatory Cost, as calculated hereunder, to
represent the cost to any Lender of complying with the requirements of the Bank of England
and/or the Financial Services Authority or the European Central Bank in relation to its
making, funding or maintaining Eurocurrency Rate Loans; or




     (iv) impose on any Lender or any L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurocurrency Rate Loans made by such
Lender or any Letter of Credit issued by such L/C Issuer or participation therein;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Loan the interest on which is determined by reference to the Eurocurrency Rate (or
of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or any
L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its
obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum
received or receivable by such Lender or such L/C Issuer hereunder (whether of principal, interest
or any other amount) then, upon request of such Lender or such L/C Issuer, the Company will pay (or
cause the applicable Borrower to pay) to such Lender or such L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or such L/C Issuer, as the case may be,
for such additional costs incurred or reduction suffered.




     (b) Capital Requirements. If any Lender or any L/C Issuer in good faith determines
(which such determination shall, absent manifest error, be final and conclusive and binding upon
all parties) that any Change in Law affecting such Lender or any L/C Issuer or any Lending Office
of such Lender or such Lender’s or such L/C Issuer’s holding company, if any, regarding capital
requirements has or would have the effect of reducing the rate of return on such Lender’s or such
L/C Issuer’s capital or on the capital of such Lender’s or such L/C Issuer’s holding company, if
any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such
L/C Issuer, to a level below that which such Lender or such L/C Issuer or such Lender’s or such L/C
Issuer’s holding company could have achieved but for such Change in Law (taking into consideration
such Lender’s or such L/C Issuer’s policies and the policies of such Lender’s or such L/C Issuer’s
holding company with respect to capital adequacy), then from time to time the Company will pay (or
cause the applicable Borrower to pay) to such Lender or such L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or such L/C Issuer or such Lender’s or
such L/C Issuer’s holding company for any such reduction suffered.



     (c) Certificates for Reimbursement. A certificate of a Lender or such L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or such L/C Issuer or its
holding company, as the case may be, as specified in subsection (a) or (b) of this Section and
delivered to the Company shall be conclusive absent manifest error. The Company shall pay (or
cause the applicable Borrower to pay) such Lender or such L/C Issuer, as the case may be, the
amount shown as due on any such certificate within 10 days after receipt thereof.



     (d) Delay in Requests. Failure or delay on the part of any Lender or any L/C Issuer
to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lender’s or such L/C Issuer’s right to demand such compensation, provided
that no Borrower shall be required to compensate a Lender or a L/C Issuer pursuant to the foregoing
provisions of this Section for any increased costs incurred or reductions suffered more than nine
months prior to the date that such Lender or such L/C Issuer, as the case may be, notifies the
Company of the Change in Law giving rise to such increased costs or reductions and of such Lender’s
or such L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law
giving rise to such increased costs or reductions



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is retroactive, then the nine-month period referred to above shall be extended to include the
period of retroactive effect thereof).




     (e) Additional Reserve Requirements. The Company shall pay (or cause the applicable
Borrower to pay) to each Lender, (i) as long as such Lender shall be required to maintain reserves
with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits
(currently known as “Eurocurrency liabilities”), additional interest on the unpaid principal amount
of each Eurocurrency Rate Loan equal to the actual costs of such reserves allocated to such Loan by
such Lender (as determined by such Lender in good faith, which determination shall be conclusive),
and (ii) as long as such Lender shall be required to comply with any reserve ratio requirement or
analogous requirement of any other central banking or financial regulatory authority imposed in
respect of the maintenance of the Commitments or the funding of the Eurocurrency Rate Loans, such
additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the
nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such
Lender (as determined by such Lender in good faith, which determination shall be conclusive), which
in each case shall be due and payable on each date on which interest is payable on such Loan,
provided the Company shall have received at least 10 days’ prior notice (with a copy to the
Administrative Agent) of such additional interest or costs from such Lender. If a Lender fails to
give notice 10 days prior to the relevant Interest Payment Date, such additional interest or costs
shall be due and payable 10 days from receipt of such notice.



     3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative
Agent) from time to time, the Company shall promptly compensate (or cause the applicable Borrower
to compensate) such Lender for, and hold such Lender harmless, from any loss, cost or expense
incurred by it as a result of:



     (a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate
Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise);



     (b) any failure by any Borrower (for a reason other than the failure of such Lender to make a
Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in
the amount notified by the Company or the applicable Borrower;



     (c) any failure by any Borrower to make payment of any Loan or drawing under any Letter of
Credit (or interest due thereon) denominated in an Alternative Currency on its scheduled due date
or any payment thereof in a different currency; or



     (d) any assignment of a Eurocurrency Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Company pursuant to Section 11.13;


including any foreign exchange losses and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate the
deposits from which such funds were obtained or from the performance of any foreign exchange
contract but excluding any loss of profits or margin. The Company shall also pay (or cause the
applicable Borrower to pay) any reasonable and customary administrative fees charged by such Lender
in connection with the foregoing.




     For purposes of calculating amounts payable by the Company (or the applicable Borrower) to the
Lenders under this Section 3.05, each Lender shall be deemed to have funded each
Eurocurrency Rate Loan made by it at the Eurocurrency Rate for such Loan by a matching deposit or
other borrowing in the



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offshore interbank market for such currency for a comparable amount and for a comparable
period, whether or not such Eurocurrency Rate Loan was in fact so funded.




     3.06 Mitigation Obligations; Replacement of Lenders.



     (a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or any Borrower is required to pay any additional amount to any Lender,
any L/C Issuer, or any Governmental Authority for the account of any Lender or any L/C Issuer
pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02,
then such Lender or such L/C Issuer shall, as applicable, use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of
such Lender or such L/C Issuer, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the
future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and
(ii) in each case, would not subject such Lender or such L/C Issuer, as the case may be, to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or such L/C
Issuer, as the case may be. The Company hereby agrees to pay (or to cause the applicable Borrower
to pay) all reasonable costs and expenses incurred by any Lender or any L/C Issuer in connection
with any such designation or assignment.



     (b) Replacement of Lenders. If any Lender requests compensation under Section
3.04 or gives a notice provided for under Section 3.02 or if any Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 3.01, the Company may replace such Lender in accordance with
Section 11.13.



     3.07 Survival. All of the Borrowers’ obligations under this Article III shall survive
termination of the Aggregate Commitments, repayment of all other Obligations hereunder, and
resignation of the Administrative Agent.



ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     4.01 Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each
Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following
conditions precedent:



     (a) The Administrative Agent’s receipt of the following, each of which shall be originals,
telecopies or “PDFs” (followed promptly by originals) unless otherwise specified, each properly
executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in
the case of certificates of governmental officials, a recent date before the Closing Date) and each
in form and substance satisfactory to the Administrative Agent and each Lender:




     (i) executed counterparts of this Agreement, the Guaranties and the Security
Instruments, sufficient in number for distribution to the Administrative Agent, each Lender
and the Company;




     (ii) Notes executed by each of the Borrowers in favor of each Lender that has requested
Notes at least two (2) Business Days in advance of the Closing Date;




     (iii) such certificates, resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers, secretaries or assistant secretaries (or other
individuals performing similar functions) of each Loan Party as the Administrative Agent may
reasonably



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require evidencing the identity, authority and capacity of each Responsible Officer
thereof authorized to act as a Responsible Officer in connection with this Agreement and the
other Loan Documents to which such Loan Party is a party;




     (iv) such documents and certifications as the Administrative Agent may reasonably
require to evidence that each Loan Party is duly organized or formed, and that each of the
Loan Parties is validly existing, in good standing or the equivalent thereof (to the extent
applicable) and qualified to engage in business in its jurisdiction of incorporation or
organization,




     (v) a favorable opinion of counsel to the Loan Parties including special counsel to the
Loan Parties in the Netherlands, Belgium, Luxembourg and Ireland, in each case, addressed to
the Administrative Agent and each Lender (and expressly permitting reliance by successors
and assigns of the Administrative Agent and each Lender), as to the matters concerning the
Loan Parties and the Loan Documents as the Administrative Agent or the Required Lenders may
reasonably request;




     (vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching
copies of all consents, licenses and approvals required in connection with the execution,
delivery and performance by such Loan Party and the validity against such Loan Party of the
Loan Documents to which it is a party, and such consents, licenses and approvals shall be in
full force and effect, or (B) stating that no such consents, licenses or approvals are so
required;




     (vii) a certificate signed by a Responsible Officer of the Company certifying (A) that
the conditions specified in Sections 4.02(a) and (b) have been satisfied and
(B) that there has been no event or circumstance since the date of the Audited Financial
Statements that has had or could be reasonably expected, either individually or in the
aggregate, to have a Material Adverse Effect;




     (viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter
of the Company ended on April 2, 2011, signed by a Responsible Officer of the Company;




     (ix) evidence satisfactory to the Administrative Agent and the Lenders that the amount,
terms, types and conditions of all insurance maintained by the Loan Parties are consistent
with that required to be maintained pursuant to the Loan Documents and certificates and
endorsements naming the Administrative Agent, on behalf of the Secured Parties, as
additional insured or lender loss payee, as the case may be, on all such property and
liability insurance policies;




     (x) evidence satisfactory to the Administrative Agent (including customary payoff
letters) that all obligations (including all principal, interest and other amounts) under
the Existing Loan Agreement have been, or concurrently with the Closing Date are being, paid
in full and terminated and all Liens securing obligations under the Existing Loan Agreement
have been, or concurrently with the Closing Date are being, released; and




     (xi) such other assurances, certificates, documents, consents or opinions as the
Administrative Agent, any L/C Issuer, the Swing Line Lender or the Required Lenders
reasonably may require.



     (b) The Administrative Agent shall have received all filings and recordations that are
necessary to perfect the security interests of the Administrative Agent, on behalf of the Secured
Parties, in the Collateral.



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     (c) The Administrative Agent shall have received original stock certificates or other
certificates, if any, evidencing the Equity Interests pledged pursuant to the Security Instruments,
together with an undated transfer power for each such certificate duly executed in blank by the
registered owner thereof, for any such Equity Interests that are certificated.



     (d) The Administrative Agent shall have received the results of a Lien search (including a
search as to judgments and tax matters), in form and substance reasonably satisfactory thereto,
made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as
in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code
should be made to evidence or perfect security interests in assets of the same type as the
Collateral of such Loan Party, indicating among other things that the assets of each such Loan
Party are free and clear of any Lien (except for Liens permitted pursuant to Section 7.01).



     (e) Any fees and expenses required to be paid on or before the Closing Date under the Fee
Letters and the “Commitment Letter” (as defined in the Fee Letters) or under any Loan Document
shall have been paid.



     (f) Unless waived by the Administrative Agent, the Company shall have paid all fees, charges
and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by
the Administrative Agent) to the extent invoiced at least two (2) Business Days prior to or on the
Closing Date, plus such additional amounts of such fees, charges and disbursements as shall
constitute its reasonable estimate of such fees, charges and disbursements incurred or to be
incurred by it through the closing proceedings (provided that such estimate shall not
thereafter preclude a final settling of accounts between the Company and the Administrative Agent).



     Without limiting the generality of the provisions of the last paragraph of Section
9.03, for purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved
or accepted or to be satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative
Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.



     4.02 Conditions to all Credit Extensions. The obligation of each Lender to honor any Request
for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Committed
Loans to the other Type, or a continuation of Eurocurrency Rate Loans) is subject to the following
conditions precedent:



     (a) The representations and warranties of (i) the Borrowers contained in Article V and
(ii) each Loan Party contained in each other Loan Document or in any document furnished at any time
under or in connection herewith or therewith, shall be true and correct in all material respects
(or, if qualified by materiality or Material Adverse Effect, in all respects) on and as of the date
of such Credit Extension (except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and correct as of such
earlier date) and except that for purposes of this Section 4.02, the representations and
warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to
the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section
6.01.



     (b) No Default shall exist, or would result from such proposed Credit Extension or from the
application of the proceeds thereof.



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     (c) The Administrative Agent and, if applicable, the applicable L/C Issuer or the Swing Line
Lender shall have received a Request for Credit Extension in accordance with the requirements
hereof.



     (d) If the applicable Borrower is a Designated Borrower, then the conditions of Section
2.14 to the designation of such Borrower as a Designated Borrower shall have been met to the
satisfaction of the Administrative Agent.



     (e) In the case of a Credit Extension to be denominated in an Alternative Currency, there
shall not have occurred any change in national or international financial, political or economic
conditions or currency exchange rates or exchange controls which in the reasonable opinion of the
Administrative Agent, the Required Lenders (in the case of any Loans to be denominated in an
Alternative Currency) the Swing Line Lender (in the case of any Foreign Swing Line Loan) or the
applicable L/C Issuer (in the case of any Letter of Credit to be denominated in an Alternative
Currency) would make it impracticable for such Credit Extension to be denominated in the relevant
Alternative Currency.



     Each Request for Credit Extension (other than a Committed Loan Notice (x) requesting only a
conversion of Committed Loans to the other Type or a continuation of Eurocurrency Rate Loans or (y)
deemed submitted pursuant to Section 2.04(c)(i)) submitted by the Company shall be deemed
to be a representation and warranty that the conditions specified in Sections 4.02(a) and
(b) have been satisfied on and as of the date of the applicable Credit Extension.



ARTICLE V.

REPRESENTATIONS AND WARRANTIES




     The Company, as to itself and its Subsidiaries, and each other Borrower solely as to itself
and its Subsidiaries, represents and warrants to the Administrative Agent and the Lenders that:



     5.01 Existence, Qualification and Power. Each Loan Party and each Restricted Subsidiary
thereof (a) is duly organized or formed, validly existing and, as applicable, in good standing or
the equivalent thereof (to the extent applicable) under the Laws of the jurisdiction of its
incorporation, organization or formation, (b) has all requisite power and authority and all
requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its
assets and carry on its business and (ii) execute, deliver and perform its obligations under the
Loan Documents to which it is a party, and (c) is duly qualified and is licensed and, as
applicable, in good standing or the equivalent thereof (to the extent applicable) under the Laws of
each jurisdiction where its ownership, lease or operation of properties or the conduct of its
business requires such qualification or license; except in each case referred to in clause (b)(i)
or (c), to the extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect.



     5.02 Authorization; No Contravention. The execution, delivery and performance by each Loan
Party of each Loan Document to which such Person is party, have been duly authorized by all
necessary corporate or other organizational action, and do not and will not (a) contravene the
terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under (i) any material Contractual Obligation to
which such Person is a party or affecting such Person or the properties of such Person or any of
its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any
arbitral award to which such Person or its property is subject; or (c) violate any Law.



     5.03 Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other



77









 




Person is necessary or required in connection with the execution, delivery or performance by
any Loan Party of this Agreement or any other Loan Document.




     5.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered will constitute, a
legal, valid and binding obligation of such Loan Party that is a party thereto, enforceable against
each Loan Party that is party thereto in accordance with its terms; provided that the
enforceability hereof and thereof is subject in each case to general principles of equity and to
bankruptcy, insolvency and similar Laws affecting the enforcement of creditors’ rights generally.



     5.05 Financial Statements; No Material Adverse Effect; Casualty Events.



     (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; and
(ii) fairly present in all material respects the financial condition of the Company and its
Restricted Subsidiaries as of the date thereof and their results of operations for the period
covered thereby in accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein.



     (b) The unaudited consolidated balance sheet of the Company and its Restricted Subsidiaries
dated April 2, 2011, and the related consolidated statements of income or operations and cash flows
for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein, and
(ii) fairly present in all material respects the financial condition of the Company and its
Restricted Subsidiaries as of the date thereof and their results of operations for the period
covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to
normal year-end audit adjustments.



     (c) Since the date of the Audited Financial Statements, there has been no event or
circumstance (including, without limitation, any casualty event), either individually or in the
aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.



     (d) The projections that have been delivered to the Administrative Agent pursuant to
Section 4.01 or any projections hereafter delivered to the Administrative Agent have been
prepared in light of the past operations of the businesses of the Company and its Restricted
Subsidiaries and are based upon estimates and assumptions stated therein, all of which the Company
has determined to be reasonable in light of then current conditions and current facts and reflect
the good faith and reasonable estimates of the Company of the future financial performance of the
Company and its Restricted Subsidiaries of the other information projected therein for the periods
set forth therein (it being understood that actual results may differ from those set forth in such
projections).



     5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to
the knowledge of the Company overtly threatened in writing, at law, in equity, in arbitration or
before any Governmental Authority, by or against the Borrowers or any of their respective
Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain
to this Agreement or any other Loan Document, or any of the transactions contemplated hereby, or
(b) could reasonably be expected to have a Material Adverse Effect.



     5.07 No Default. No Default has occurred and is continuing or would result from the
consummation of the transactions contemplated by this Agreement or any other Loan Document.



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     5.08 Ownership of Property. Each of the Company and each Restricted Subsidiary has good
record and marketable title in fee simple to, or valid leasehold interests in, all real property
and good title to, or valid leasehold interests in, all personal property, in each case necessary
to the ordinary conduct of the business of the Company and its Restricted Subsidiaries, taken as a
whole, except where the failure to have such title or other interest could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.



     5.09 Environmental Compliance. The Company and its Subsidiaries are in compliance with all
Environmental Laws, other than those the failure with which to comply could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.



     5.10 Taxes. There is no proposed tax assessment against the Company or any Subsidiary that
could reasonably be expected to have a Material Adverse Effect.



     5.11 ERISA Compliance.



     (a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other Federal or state laws. Each Pension Plan that is intended to be a
qualified plan under Section 401(a) of the Code has either (i) received a favorable determination
letter from the Internal Revenue Service to the effect that the form of such Plan is qualified
under Section 401(a) of the Code or an application for such a letter is currently being processed
by the Internal Revenue Service or (ii) is maintained under a prototype or volume submitter plan
and may rely upon a favorable opinion or advisory letter issued by the Internal Revenue Service
with respect to such prototype or volume submitter plan. To the knowledge of the Company, nothing
has occurred that could reasonably be expected to prevent or cause the loss of such tax-qualified
status.



     (b) Except as has not resulted or could not reasonably be expected to result in a Material
Adverse Effect (i) there are no pending or, to the knowledge of the Company or any ERISA Affiliate,
threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to
any Plan or Pension Plan; (ii) no Borrower nor any ERISA Affiliate has engaged in a non-exempt
“prohibited transaction”, (as defined in Section 406 of ERISA and Section 4975 of the Code), in
connection with any Plan or Pension Plan, that could reasonably subject any Borrower to a tax on
prohibited transactions imposed by Section 502(i) of ERISA or Section 4975 of the Code; and (iii)
there has been no violation of the fiduciary responsibility rules with respect to any Plan or
Pension Plan.



     (c) Except as would not reasonably be expected to have a Material Adverse Effect: (i) No
ERISA Event has occurred, and neither the Company nor any ERISA Affiliate is aware of any fact,
event or circumstance that could reasonably be expected to constitute or result in an ERISA Event
with respect to any Pension Plan or Multiemployer Plan; (ii) the Company and each ERISA Affiliate
has met all applicable requirements under the Pension Funding Rules in respect of each Pension
Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has been
applied for or obtained; (iii) as of the most recent valuation date for any Pension Plan, the
funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or higher
and neither the Company nor any ERISA Affiliate knows of any facts or circumstances that could
reasonably be expected to cause the funding target attainment percentage for any such plan to drop
below 60% as of the next valuation date; (iv) neither the Company nor any ERISA Affiliate has
incurred any liability to the PBGC other than for the payment of premiums, and there are no premium
payments which are delinquent; and (v) neither the Borrower nor any ERISA Affiliate has engaged in
a transaction that could reasonably be expected to become subject to Section 4069 or Section
4212(c) of ERISA.



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     (d) Neither the Company nor any ERISA Affiliate maintains or contributes to, or has any
unsatisfied obligation to contribute to, or liability under, any active or terminated Pension Plan
on the Closing Date, other than those listed on Schedule 5.11(d) hereto.



     5.12 Subsidiaries; Equity Interests. As of the Closing Date, the Company has no Subsidiaries
other than those specifically disclosed in Part (a) of Schedule 5.12, and all of the
outstanding Equity Interests in such Subsidiaries have been validly issued, are (as applicable)
fully paid and nonassessable and are owned by the applicable Loan Party in the amounts specified on
Part (a) of Schedule 5.12 free and clear of all Liens (other than Liens permitted under
Section 7.01). The Company owns no Equity Interests in any other corporation or entity
other than those specifically disclosed in Part (b) of Schedule 5.12. All of the
outstanding Equity Interests in the Company have been validly issued, and are fully paid and
nonassessable. Each of the Domestic Guarantors (other than the Company), Foreign Borrowers and
Foreign Guarantors and each Material Subsidiary and Limited Subsidiary is indentified as such in
Part (a) of Schedule 5.12.



     5.13 Margin Regulations; Investment Company Act.



     (a) No Borrower nor any Restricted Subsidiary is engaged or will engage, principally or as one
of its important activities, in the business of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or
carrying margin stock. Following the application of the proceeds of each Borrowing or drawing
under each Letter of Credit, not more than 25% of the value of the assets (either of the applicable
Borrower only or of the Company and its Restricted Subsidiaries on a consolidated basis) subject to
the provisions of Section 7.01 or Section 7.05 or subject to any restriction
contained in any agreement or instrument between any Borrower and any Lender or any Affiliate of
any Lender relating to Indebtedness and within the scope of Section 8.01(e) will be margin
stock.



     (b) Neither the Company nor any Restricted Subsidiary is or is required to be registered as an
“investment company” under the Investment Company Act of 1940.



     5.14 Disclosure. No report, financial statement, certificate or other written information
furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection
with the transactions contemplated hereby and the negotiation of this Agreement or delivered
hereunder or under any other Loan Document (other than information of a general economic or general
industry nature), as and when furnished and taken as a whole with all such reports, financial
statements, certificates and other information previously furnished, contained any material
misstatement of fact or omitted to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided that, with respect to projected financial information, the Company makes only
those representations set forth in Section 5.05(d).



     5.15 Compliance with Laws. Each Loan Party and each Restricted Subsidiary thereof is in
compliance with the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a) such requirement of
Law or order, writ, injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted or (b) the failure to comply therewith, either individually or in
the aggregate, could not reasonably be expected to have a Material Adverse Effect.



     5.16 Taxpayer Identification Number; Other Identifying Information. The true and correct U.S.
taxpayer identification number of the Company is set forth on Schedule 11.02. The true and
correct unique identification number of each Borrower that is a Foreign Subsidiary and a party
hereto on



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the Closing Date that has been issued by its jurisdiction of organization and the name of such
jurisdiction are set forth on Schedule 5.16.




     5.17 Intellectual Property; Licenses, Etc. The Company and each of its Restricted
Subsidiaries own, or possess the right to use, all of the trademarks, service marks, trade names,
copyrights, patents, patent rights, franchises, licenses and other intellectual property rights
that are reasonably necessary for the operation of their respective businesses, without conflict
with the rights of any other Person, except where the failure to own or possess such rights, or
such conflicts, either individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.



     5.18 Solvency. The Company and its Restricted Subsidiaries (taken as a whole) are Solvent.



     5.19 Representations as to Foreign Obligors.



     (a) Each Foreign Obligor is subject to civil and commercial Laws with respect to its
obligations under this Agreement and the other Loan Documents to which it is a party (collectively
as to such Foreign Obligor, the “Applicable Foreign Obligor Documents”), and the execution,
delivery and performance by such Foreign Obligor of the Applicable Foreign Obligor Documents
constitute and will constitute private and commercial acts and not public or governmental acts.
Neither such Foreign Obligor nor any of its property has any immunity from jurisdiction of any
court or from any legal process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) under the laws of the jurisdiction in which
such Foreign Obligor is organized and existing in respect of its obligations under the Applicable
Foreign Obligor Documents.



     (b) The Applicable Foreign Obligor Documents are in proper legal form under the Laws of the
jurisdiction in which such Foreign Obligor is organized and existing for the enforcement thereof
against such Foreign Obligor under the Laws of such jurisdiction, and to ensure the legality,
validity, enforceability, priority or admissibility in evidence of the Applicable Foreign Obligor
Documents. It is not necessary to ensure the legality, validity, enforceability, priority or
admissibility in evidence of the Applicable Foreign Obligor Documents that the Applicable Foreign
Obligor Documents be filed, registered or recorded with, or executed or notarized before, any court
or other authority in the jurisdiction in which such Foreign Obligor is organized and existing or
that any registration charge or stamp or similar tax be paid on or in respect of the Applicable
Foreign Obligor Documents or any other document, except for (i) any such filing, registration,
recording, execution or notarization as has been made or is not required to be made until the
Applicable Foreign Obligor Document or any other document is sought to be enforced and (ii) any
charge or tax as has been timely paid.



     (c) There is no tax, levy, impost, duty, fee, assessment or other governmental charge, or any
deduction or withholding, imposed by any Governmental Authority in or of the jurisdiction in which
such Foreign Obligor is organized and existing either (i) on or by virtue of the execution or
delivery of the Applicable Foreign Obligor Documents or (ii) on any payment to be made by such
Foreign Obligor pursuant to the Applicable Foreign Obligor Documents, except as has been disclosed
to the Administrative Agent.



     (d) The execution, delivery and performance of the Applicable Foreign Obligor Documents
executed by such Foreign Obligor are, under applicable foreign exchange control regulations of the
jurisdiction in which such Foreign Obligor is organized and existing, not subject to any
notification or authorization except (i) such as have been made or obtained or (ii) such as cannot
be made or obtained until a later date (provided that any notification or authorization
described in clause (ii) shall be made or obtained as soon as is reasonably practicable).



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     5.20 OFAC. None of the Borrowers, any Subsidiary of any Borrower or (to the knowledge of the
Company) any Affiliate of any Borrower: (a) is a Sanctioned Person, (b) has any of its assets in
Sanctioned Entities, or (c) derives any of its operating income from investments in, or
transactions with Sanctioned Persons or Sanctioned Entities, in each case, that would constitute a
violation of applicable Laws. The proceeds of any Credit Extension will not be used and have not
been used to fund any operations in, finance any investments or activities in, or make any payments
to, a Sanctioned Person or a Sanctioned Entity, in each case, that would constitute a violation of
applicable Laws.



ARTICLE VI.

AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder (other than (i) contingent indemnification obligations as to which no claim has been
asserted and (ii) obligations and liabilities under Secured Cash Management Agreements and Secured
Hedge Agreements) shall remain unpaid or unsatisfied, or any Letter of Credit shall remain
outstanding (other than Extended Letters of Credit and any other Letter of Credit the Outstanding
Amount of which has been Cash Collateralized or back-stopped by a letter of credit or other credit
support in form and substance reasonably satisfactory to the Administrative Agent and the
applicable L/C Issuer), the Company shall, and shall (except in the case of the covenants set forth
in Sections 6.01, 6.02, and 6.03) cause each Restricted Subsidiary to:



     6.01 Financial Statements. Deliver to the Administrative Agent:



     (a) as soon as available, but in any event within 90 days after the end of each fiscal year of
the Company (or, if earlier, 10 Business Days after the date required to be filed with the SEC), a
consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal year,
and the related consolidated statements of income or operations and cash flows for such fiscal
year, setting forth in each case in comparative form the figures for the previous fiscal year,
prepared in accordance with GAAP, such consolidated statements to be audited and accompanied by a
report and opinion of an independent certified public accountant of nationally recognized standing,
which report and opinion shall be prepared in accordance with generally accepted auditing standards
or the standards of the Public Company Accounting Oversight Board (or any entity succeeding to its
principal functions), as applicable, and shall not be subject to any “going concern” or like
qualification or exception or any qualification or exception as to the scope of such audit and
accompanied by a report containing management’s discussion and analysis of such financial
statements for the fiscal year then ended;



     (b) as soon as available, but in any event within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of the Company (commencing with the fiscal quarter ending
July 2, 2011) (or, if earlier, 10 Business Days after the date required to be filed with the SEC),
a consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal
quarter, the related consolidated statements of income or operations for such fiscal quarter and
for the portion of the Company’s fiscal year then ended, and the related consolidated statements of
cash flows for the portion of the Company’s fiscal year then ended, in each case setting forth in
comparative form, as applicable, the figures for the corresponding fiscal quarter of the previous
fiscal year and the corresponding portion of the previous fiscal year, such consolidated statements
to be certified by the chief executive officer, chief financial officer, treasurer or controller of
the Company as fairly presenting in all material respects the financial condition, results of
operations and cash flows of the Company and its Subsidiaries in accordance with GAAP, subject only
to normal year-end audit adjustments and the absence of footnotes; and



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     (c) promptly upon becoming available, but in no event later than forty (40) days after the end
of each fiscal year (commencing with the fiscal year of the Company ending December 31, 2011), a
projected consolidated financial budget (including forecasted balance sheets, statements of income
and loss and summary cash flow items) of the Company and its Restricted Subsidiaries for such
fiscal year, in a format reasonably acceptable to the Administrative Agent, together with such
supporting information as the Administrative Agent may reasonably request. Such projected
financial budget shall be prepared on a quarterly basis. Such projected financial budget shall
have been prepared on the basis of assumptions that the Company believes to be reasonable as of the
date of preparation of such budget in light of current and reasonably foreseeable business
conditions (it being understood that actual results may differ from those set forth in such
projected financial budget).


As to any information contained in materials furnished pursuant to Section 6.02(d), the
Company shall not be separately required to furnish such information under clause (a) or (b) above,
but the foregoing shall not be in derogation of the obligation of the Company to furnish the
information and materials described in clauses (a) and (b) above at the times specified therein.




     6.02 Certificates; Other Information. Deliver to the Administrative Agent in form and detail
satisfactory to the Administrative Agent:



     (a) concurrently with the delivery of the financial statements referred to in Section
6.01(a), a certificate of its independent certified public accountants certifying such
financial statements and stating that in making the examination necessary therefor no knowledge was
obtained of any Default under the financial covenants set forth herein or, if any such Default
shall exist, stating the nature and status of such event (it being understood that any such
certificate may be subject to reasonable and customary limitations of applicable policies and
procedures of such accountants, including Statement of Auditing Standards 62);



     (b) commencing with the delivery of the financial statements for the fiscal quarter ending
September 30, 2011, concurrently with the delivery of the financial statements referred to in
Sections 6.01(a) and (b), (i) a duly completed Compliance Certificate signed by the
chief executive officer, chief financial officer, treasurer or controller of the Company (which
delivery may, unless the Administrative Agent, or a Lender requests executed originals, be by
electronic communication including fax or email and shall be deemed to be an original authentic
counterpart thereof for all purposes) together with a certificate signed by such officer and
containing (A) a calculation, in form and substance satisfactory to the Administrative Agent, of
the Cumulative Available Amount, of the consolidated total assets as most recent fiscal quarter end
or fiscal year end, as the case may be, and of the applicable utilization of the baskets in each of
Sections 7.02(h), 7.03(f), 7.03(i) and 7.05(f), (B) a listing of
each Restricted Subsidiary, Material Subsidiary and Limited Subsidiary and (C) the notices relating
to Subsidiaries required by Section 6.14(a) and (ii) the related consolidating financial
statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted
Subsidiaries (if any) from such financial statements;



     (c) promptly after the same are available, copies of each annual report, proxy or financial
statement or other material report or communication sent to the stockholders of the Company
generally, and copies of all annual, regular, periodic and special reports and material
registration statements which the Company may file or be required to file with the SEC under
Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be
delivered to the Administrative Agent pursuant hereto;



     (d) promptly after the furnishing thereof, copies of any statement or report furnished to the
holders of debt securities of any Loan Party or any Subsidiary thereof pursuant to the terms of any



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indenture, loan or credit or similar agreement and not otherwise required to be furnished to
the Administrative Agent pursuant to Section 6.01 or any other clause of this Section
6.02; and




     (e) promptly, such additional information regarding the business, financial or corporate
affairs of the Company or any Subsidiary, or compliance with the terms of the Loan Documents, as
the Administrative Agent or any Lender may from time to time reasonably request.



     Documents required to be delivered pursuant to Section 6.01(a) or (b),
Section 6.02(c) or Section 6.03(b), (c), (d) or (e)(i) (to
the extent any such documents are included in materials otherwise filed with the SEC) may be
delivered electronically and if so delivered, shall be deemed to have been delivered on the date
(i) on which the Company posts such documents, or provides a link thereto on the Company’s website
on the Internet at the website address listed on Schedule 11.02; or (ii) on which such
documents are posted on the Company’s behalf on an Internet or intranet website, if any, to which
each Lender and the Administrative Agent have access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent); provided that: (x) the Company shall
deliver paper copies of such documents to the Administrative Agent or any Lender that reasonably
requests the Company to deliver such paper copies until a written request to cease delivering paper
copies is given by the Administrative Agent or such Lender and (y) the Company shall notify the
Administrative Agent (by telecopier or electronic mail) of the posting of any such documents and
provide to the Administrative Agent by electronic mail electronic versions (i.e., soft
copies) of such documents. Notwithstanding anything contained herein, in every instance the
Company shall be required to provide paper copies of the Compliance Certificates required by
Section 6.02(b) to the Administrative Agent. Except for such Compliance Certificates, the
Administrative Agent shall have no obligation to request the delivery of or to maintain paper
copies of the documents referred to above, and in any event shall have no responsibility to monitor
compliance by the Company with any such request by a Lender for delivery, and each Lender shall be
solely responsible for requesting delivery to it or maintaining its copies of such documents.



     Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will
make available to the Lenders and the L/C Issuers materials and/or information provided by or on
behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and
(b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to
receive material non-public information with respect to any of the Borrowers or their respective
Affiliates, or the respective securities of any of the foregoing, and who may be engaged in
investment and other market-related activities with respect to such Persons’ securities. Each
Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public
Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the
word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials
“PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Arrangers,
the L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material
non-public information with respect to any Borrower or its respective securities for purposes of
United States Federal and state securities laws (provided that to the extent such Borrower
Materials constitute Information, they shall be treated as set forth in Section 11.07); (y)
all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the
Platform designated “Public Side Information;” and (z) the Administrative Agent and the Arrangers
shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable
only for posting on a portion of the Platform not designated “Public Side Information.”



     6.03 Notices. Promptly after a Responsible Officer of the Company or (solely with respect to
clauses (a) and (b) below) any other Borrower obtains actual knowledge thereof, notify the
Administrative Agent:



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     (a) of the occurrence of any Default;



     (b) of any matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual
Obligation of the Company or any Restricted Subsidiary; (ii) any dispute, litigation,
investigation, proceeding or suspension between the Company or any Restricted Subsidiary and any
Governmental Authority; or (iii) the commencement of, or any material development in, any
litigation or proceeding affecting the Company or any Restricted Subsidiary, including pursuant to
any applicable Environmental Laws;



     (c) of the occurrence of any ERISA Event which could reasonably be expected to have a Material
Adverse Effect;



     (d) of any material change in accounting policies or financial reporting practices by the
Borrower or any Subsidiary, including any determination by the Company referred to in Section
2.10(b); and



     (e) of (i) any announcement by Moody’s or S&P of any change in the Moody’s Rating or the S&P
Rating, respectively or (ii) any instruction by the Company to Moody’s or S&P not to provide the
Moody’s Rating or the S&P Rating, respectively.



     Each notice pursuant to this Section 6.03 (other than Section 6.03(e)) shall
be accompanied by a statement of a Responsible Officer of the Company setting forth details of the
occurrence referred to therein and stating what action the Company has taken and proposes to take
with respect thereto. Each notice pursuant to Section 6.03(a) shall describe with
reasonable particularity any and all provisions of this Agreement and any other Loan Document that
the Company believes in good faith have been breached.



     6.04 Payment of Taxes and Claims. Pay and discharge as the same shall become due and payable,
(a) all federal and other tax liabilities, assessments and governmental charges or levies upon it
or its properties or assets, unless (i) the same are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained
by the Company or such Restricted Subsidiary or (ii) the failure to so pay or discharge the same
could not reasonably be expected, individually or in the aggregate, to have a Material Adverse
Effect, or (b) all lawful claims which, if unpaid, could not reasonably be expected, either
individually or in the aggregate, to have a Material Adverse Effect.



     6.05 Preservation of Existence, Etc.



     (a) Preserve, renew and maintain in full force and effect its legal existence and in good
standing or the equivalent thereof (to the extent applicable) under the Laws of the jurisdiction of
its organization except in a transaction permitted by Section 7.04 or 7.05.



     (b) Take all reasonable action to maintain all rights, privileges, permits, licenses and
franchises necessary or desirable in the normal conduct of its business, except to the extent that
failure to do so could not reasonably be expected to have a Material Adverse Effect.



     (c) Preserve or renew all of its registered patents, trademarks, trade names and service
marks, the non-preservation of which could reasonably be expected to have a Material Adverse
Effect.



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     6.06 Maintenance of Properties. Except where the failure to do so could not reasonably be
expected, either individually or in the aggregate, to have a Material Adverse Effect:



     (a) maintain, preserve and protect all of its material properties and equipment necessary in
the operation of its business in good working order and condition, ordinary wear and tear excepted,
and.



     (b) make all necessary repairs thereto and renewals and replacements thereof.



     6.07 Maintenance of Insurance. Maintain with financially sound and reputable insurance
companies not Affiliates of the Company, insurance with respect to its properties and business
against loss or damage of the kinds customarily insured against by Persons engaged in the same or
similar business and consistent with the requirements of the Security Instruments, of such types
and in such amounts (after giving effect to any self-insurance customary for Persons engaged in the
same or similar business) as are customarily carried under similar circumstances by such other
Persons.



     6.08 Compliance with Laws. Comply with the requirements of all Laws and all orders, writs,
injunctions and decrees applicable to it or to its business or property, except in such instances
in which (a) such requirement of Law or order, writ, injunction or decree is being contested in
good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith
could not reasonably be expected to have a Material Adverse Effect.



     6.09 Books and Records. Maintain proper books of record and account, in which full, true and
correct entries in all material respects in conformity with GAAP (other than the books and records
of Foreign Subsidiaries that are kept in accordance with local accounting rules) consistently
applied shall be made of all material financial transactions and matters involving the assets and
business of the Company or such Restricted Subsidiary, as the case may be.



     6.10 Inspection Rights. Permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to
discuss its affairs, finances and accounts with its directors, officers, and independent public
accountants (subject to such accountants’ reasonable and customary policies and procedures), all at
the reasonable expense of the Company and at such reasonable times during normal business hours and
as often as may be reasonably desired, upon reasonable advance notice to the Company;
provided, however, that excluding any such visits and inspections during the
continuation of an Event of Default, the Administrative Agent and the Lenders shall coordinate with
one another regarding any visits under this Section and shall not exercise such rights more often
than one (1) time during any calendar year absent the existence of an Event of Default (it being
understood that each Lender may be represented in such annual visit or inspection, which shall be
organized by the Administrative Agent and that during the continuation of an Event of Default such
visits and inspections may be conducted by the Administrative Agent or any Lender at any time
during normal business hours and without prior notice and without regard to any limitation as to
the number of such visits and inspections in any calendar year). So long as at such time no
Default exists, the Administrative Agent and the Lenders shall give the Company the opportunity to
participate in any discussions with the Company’s independent public accountants. Notwithstanding
anything to the contrary in this Section, neither the Company nor any Restricted Subsidiary will be
required to disclose, permit inspection of, examination or making copies or abstracts of, or
discussion of, any document, information or other matter (a) in respect of which disclosure to the
Administrative Agent or any Lender (or any of their respective
representatives or contractors) is prohibited by applicable Law or any binding contract that
is not entered into in contemplation of any such inspection or disclosure or (b) that is subject to
attorney-client privilege or constitutes attorney work product.




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     6.11 Use of Proceeds. Use the proceeds of the Credit Extensions for the refinancing of
the credit facility established pursuant to the Existing Loan Agreement, working capital and
general corporate purposes (including capital expenditures, Investments permitted hereunder
(including Permitted Acquisitions) and the redemption or repurchase of the notes issued under the
Existing Indentures) not in contravention of any Law or of any Loan Document.



     6.12 Compliance with Environmental Laws. Except, in each case, to the extent that the failure
to do so could not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, (a) comply, and take all reasonable actions to cause any lessees and other Persons
operating or occupying its properties to comply, with all applicable Environmental Laws and
Environmental Permits; (b) obtain and renew all Environmental Permits necessary for its operations
and properties; and (c) in each case to the extent required by applicable Environmental Laws,
conduct any investigation, study, sampling and testing, and undertake any cleanup, removal,
remedial or other action necessary to remove and clean up all Hazardous Materials from any of its
properties, in accordance with the requirements of all applicable Environmental Laws.



     6.13 Approvals and Authorizations. Maintain all authorizations, consents, approvals and
licenses from, exemptions of, and filings and registrations with, each Governmental Authority of
the jurisdiction in which each Foreign Obligor is organized and existing, and all approvals and
consents of each other Person in such jurisdiction, in each case that are necessary to maintain the
enforceability of, and the practical realization by the Secured Parties of the intended benefit of,
the applicable Loan Documents against such Foreign Obligors.



     6.14 Notices Regarding Subsidiaries; Covenant to Guarantee and Give Security.



     (a) Notices and Information. Provide notice to the Administrative Agent (i) no later
than 15 days after the date on which any Person becomes, as a result of formation or acquisition, a
Domestic Subsidiary that is not a Domestic Guarantor but is a Material Subsidiary (other than by
virtue of clause (ii) of the proviso contained in the definition of “Material Subsidiary”) and (ii)
no later than 15 days after the delivery of each Compliance Certificate (A) of any Domestic
Subsidiary that is not a Domestic Guarantor but is as of the last day of the fiscal quarter for
which such Compliance Certificate was delivered a Material Subsidiary, (B) of any Foreign
Subsidiary that is not a Foreign Borrower or a Foreign Guarantor and is not an Excluded Subsidiary
pursuant to either subpart (a) or (b) of such definition and that has assets or revenues in excess
of 2.5% of the consolidated total assets or revenues of the Company and its Restricted Subsidiaries
as of the most recent quarter-end and four-quarter period, the amount of such Foreign Subsidiary’s
assets and revenues, and the jurisdiction of formation of such Foreign Subsidiary, (C) of any
Domestic Subsidiary whose Equity Interests have not been pledged pursuant to a Security Instrument,
and (D) of any First-Tier Foreign Subsidiary whose Equity Interests have not been pledged pursuant
to a Security Instrument (including any Foreign Subsidiary of which notice is required pursuant to
clause (ii)(B) above) unless the pledge thereof has previously been determined by the
Administrative Agent and the Company not to be required because the cost and the consequences
(including any adverse tax consequences) of such a pledge is excessive in relation to the benefits
afforded thereby.



     (b) Domestic Guarantors and Collateral. Within 30 days (or such later time as may be
determined by the Administrative Agent in its sole discretion) after the date any notice is
provided, or is required to be provided, pursuant to Section 6.14(a)(i) or
6.14(a)(ii)(A) or (C) above, if any relevant Person is an indirect or direct
Domestic Subsidiary that is a Material Subsidiary and not an Excluded Subsidiary, cause such
Domestic Subsidiary to (as applicable):



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     (i) become a Domestic Guarantor by execution and delivery to the Administrative Agent
of a joinder agreement in the form provided in the Domestic Guaranty or in such other form
as is reasonably acceptable to the Administrative Agent;




     (ii) except during a Collateral Release Period, grant a security interest in all of its
assets of the type constituting, or required to constitute, Collateral (subject to the
exceptions contained in the applicable Security Instruments) owned by such Domestic
Subsidiary by execution and delivery to the Administrative Agent of a supplement or joinder
agreement in the form provided in the applicable Security Instrument or in such other form
as is reasonably acceptable to the Administrative Agent; and




     (iii) in furtherance of clauses (i) and (ii) above, deliver to the Administrative Agent
for the benefit of the Secured Parties, (A) such other document or documents as the
Administrative Agent shall reasonably deem appropriate to effect the purposes set forth in
such clauses, (B) such documents and certificates referred to in Section 4.01
(including, without limitation, legal opinions) as may be reasonably requested by the
Administrative Agent, (C) except during a Collateral Release Period, such original
Collateral (together with transfer powers) and other items as may be required to be
delivered under the terms of the applicable Security Instruments, (D) updated schedules to
the Loan Documents if, and as, requested by the Administrative Agent and (E) such other
documents as may be reasonably requested by the Administrative Agent, all in form, content
and scope reasonably satisfactory to the Administrative Agent.



     (c) First-Tier Foreign Subsidiary Pledges. Except during a Collateral Release Period
and subject to the proviso at the end of this subsection (c), within 30 days (or such later time as
may be determined by the Administrative Agent in its sole discretion) after the date any notice is
provided, or is required to be provided, pursuant to Section 6.14(a)(ii)(D) above, cause
the Company or Domestic Subsidiary that owns the Equity Interests in such First-Tier Foreign
Subsidiary to deliver to the Administrative Agent for the benefit of the Secured Parties a Security
Instrument (or such other document or documents as the Administrative Agent shall deem appropriate
for such purpose) executed by the applicable owner or owners of the Equity Interests of such
First-Tier Foreign Subsidiary and other documentation, as specified by and in form and substance
reasonably satisfactory to the Administrative Agent, in each case pledging sixty-five percent (65%)
of the Equity Interests (which pledge shall only be required to include 65% of the voting Equity
Interests) of such First-Tier Foreign Subsidiary (including without limitation, (x) if applicable,
original stock certificates (or the equivalent thereof) evidencing such percentage of the Equity
Interests issued by such First-Tier Foreign Subsidiary, together with transfer powers, (y) Foreign
Pledges and other documentation governed or required by the Laws of, or customary in, the
jurisdiction in which such First-Tier Foreign Subsidiary is organized, in the event such First-Tier
Foreign Subsidiary is a Foreign Borrower or a Foreign Guarantor, and (z) to the extent reasonably
requested by the Administrative Agent, documents and certificates
referred to in Section
4.01, updated schedules to the Loan Documents (in each case with respect to such First-Tier
Foreign Subsidiary) and other such other documents as may be reasonably requested by the
Administrative Agent, all in form, content and scope reasonably satisfactory to the Administrative
Agent); provided that (A) the provisions of this subsection (c) shall not apply to any
pledge of Equity Interests: (1) as to which both the Administrative Agent and the Company
reasonably determine that the costs and consequences (including any adverse tax consequences) of
obtaining such a pledge is excessive in relation to the benefits afforded thereby; (2) of any
First-Tier Foreign Subsidiary that is a non Wholly Owned Restricted Subsidiary if the Organization
Documents of such First-Tier Foreign Subsidiary prohibit such pledge or would require the consent
of any third party that has not been obtained after the Company’s use of commercially reasonable
efforts to obtain such consent; or (3) that is prohibited by applicable Laws, and (B) the Company
shall not be required to obtain any Security Instruments or documentation of the type referred to
in clause (y)



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above unless such First-Tier Foreign Subsidiary is a Foreign Borrower or Foreign Guarantor (it
being understood and agreed that if such First-Tier Foreign Subsidiary becomes a Foreign Borrower
or Foreign Guarantor such Security Instruments and documentation shall be provided not later than
30 days (or such later time as may be determined by the Administrative Agent in its sole
discretion) after the request of the Administrative Agent.




     (d) Foreign Guarantors. Promptly after the date any notice is provided, or is
required to be provided, pursuant to Section 6.14(a)(ii)(B) above, unless such Foreign
Subsidiary has been or is being designated as an Unrestricted Subsidiary or is an Excluded
Subsidiary pursuant to clause (a) or (b) of the definition thereof, the Company and the
Administrative Agent will enter into discussions regarding whether such Foreign Subsidiary is
reasonably an Excluded Subsidiary pursuant to clause (c) of such definition, and within 30 days (or
such later time as may be determined by the Administrative Agent in its sole discretion) after any
determination that such Foreign Subsidiary is not such an Excluded Subsidiary, cause such Foreign
Subsidiary to become a Foreign Guarantor and deliver to the Administrative Agent for the benefit of
the Secured Parties, (A) a joinder agreement to the Foreign Guaranty in the form provided therein
or such other document as the Administrative Agent shall reasonably deem appropriate to effect the
purposes of this subsection (d), (B) such documents and certificates referred to in Section
4.01 (including, without limitation, legal opinions) as may be reasonably requested by the
Administrative Agent, (C) updated schedules to the Loan Documents if, and as, requested by the
Administrative Agent and (D) such other documents as may be reasonably requested by the
Administrative Agent, all in form, content and scope reasonably satisfactory to the Administrative
Agent.



     (e) General Limitation. No Foreign Subsidiary shall be required or permitted to be
joined as a Foreign Borrower or Foreign Guarantor hereunder to the extent that either the
Administrative Agent or the Company reasonably determines that joining such Foreign Subsidiary as a
Foreign Borrower or Foreign Guarantor would violate any Law applicable to such Foreign Subsidiary,
the Administrative Agent or the Lenders (including, without limitation, any applicable Laws
regarding financial assistance).



     6.15 Further Assurances. Promptly upon the written request by the Administrative Agent (which
may act at the request of any Lender), the Company or the applicable Loan Party shall (a) correct
any material defect or error that may be discovered in any Loan Document or in the execution,
acknowledgment, filing or recordation thereof, and (b) do, execute, acknowledge, deliver, record,
re-record, file, re-file, register and re-register any and all such further acts, deeds,
certificates, assurances and other instruments as the Administrative Agent, may reasonably require
from time to time in order to (i) carry out more effectively the purposes of the Loan Documents,
(ii) except during a Collateral Release Period, to the fullest extent permitted by applicable Laws,
subject any Loan Party’s or any of its Subsidiaries’ properties, assets, rights or interests to the
Liens now or hereafter intended to be covered by any of the Security Instruments, (iii) except
during a Collateral Release Period, perfect and maintain the validity, effectiveness and priority
of any of the Security Instruments and any of the Liens intended to be created thereunder in
accordance with the applicable terms of the Security Instruments and (iv) except during a
Collateral Release Period, assure, convey, grant, assign, transfer, preserve, protect and confirm
more effectively unto the Secured Parties the rights granted or now or hereafter intended to be
granted to the Secured Parties under any Loan Document or under any other instrument executed in
connection with any Loan Document to which any Loan Party or any of its Subsidiaries is or is to be
a party, and cause each of its Subsidiaries to do so.



     6.16 Extended Letters of Credit. The Company shall provide Cash Collateral (in an amount
equal to 105% of the maximum face amount of each Extended Letter of Credit, calculated in
accordance with Section 1.09) to each applicable L/C Issuer with respect to each Extended
Letter of Credit issued by such L/C Issuer by the date 5 Business Days prior to the Maturity Date;
provided that if the Company fails to provide Cash Collateral with respect to any such
Extended Letter of Credit by such time, such



89









 




event shall be treated as a drawing under such Extended Letter of Credit (in an amount equal
to 105% of the maximum face amount of each such Letter of Credit, calculated in accordance with
Section 1.09), which shall be reimbursed (or participations therein funded) in accordance
with Section 2.03(c), with the proceeds being utilized to provide Cash Collateral for such
Letter of Credit. Upon the termination of this Agreement, the pricing and fees applicable to any
Extended Letter of Credit shall be as separately agreed between the Company and the applicable L/C
Issuer.




     6.17 Corporate Ratings. Use commercially reasonable efforts to maintain both a Moody’s Rating
and a S&P Rating at all times (or, if one of the ratings is not available or cannot be obtained by
using commercially reasonable efforts, use commercially reasonable efforts to obtain a similar type
rating from another rating agency reasonably acceptable to the Administrative Agent).



     6.18 Post-Closing Matters. Execute and deliver the documents and complete the tasks set forth
on Schedule 6.18, in each case within the time limits specified therefor on such schedule.



ARTICLE VII.

NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder (other than (i) contingent indemnification obligations as to which no claim has been
asserted and (ii) obligations and liabilities under Secured Cash Management Agreements and Secured
Hedge Agreements) shall remain unpaid or unsatisfied, or any Letter of Credit shall remain
outstanding (other than Extended Letters of Credit and any other Letter of Credit the Outstanding
Amount of which has been Cash Collateralized or back-stopped by a letter of credit or other credit
support in form and substance reasonably satisfactory to the Administrative Agent and the
applicable L/C Issuer), the Company shall not, nor shall it permit any Restricted Subsidiary to,
directly or indirectly:



     7.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, other than the following:



     (a) Liens pursuant to any Loan Document;



     (b) Liens existing on the Closing Date and listed on Schedule 7.01 and any renewals or
extensions thereof, provided that (i) any such Lien does not extend to any additional
property other than after-acquired property that is affixed or incorporated into the property
covered by the renewed or replaced Liens, and the proceeds and products of such property, (ii) the
amount secured or benefited thereby is not increased except as contemplated in the definition of
“Refinancing Indebtedness”, (iii) the direct or any contingent obligor with respect thereto is not
changed (other than releases of contingent obligors), and (iv) any renewal or extension of the
Indebtedness (if any) secured or benefited thereby is permitted Refinancing Indebtedness;



     (c) Liens for taxes, assessments and other governmental charges that are not overdue for a
period of more than 30 days or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;



     (d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business (and not securing Indebtedness) which are not overdue
for a period of more than 30 days or, if more than 30 days overdue, are unfiled and no other action
has been taken to enforce such Lien, or which are being contested in good faith and by appropriate
proceedings



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diligently conducted, if adequate reserves with respect thereto are maintained on the books of
the applicable Person in accordance with GAAP;




     (e) (i) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation (and not securing
Indebtedness) and (ii) pledges and deposits in the ordinary course of business securing liability
for customary reimbursement and indemnification obligations of (including obligations in respect of
letters of credit or bank guarantees for the benefit of) insurance carriers providing property,
casualty or liability insurance to the Company or any of its Restricted Subsidiaries;



     (f) deposits to secure the performance of bids, trade contracts, government contracts and
leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature incurred in the ordinary course of business (other than
bonds related to judgments or litigation);



     (g) easements, rights-of-way, restrictions (including zoning restrictions) and other similar
encumbrances and other title defects affecting real property which, in the aggregate, do not in any
case materially detract from the value of the properties of, or materially interfere with the
ordinary conduct of the business of, the Company and its Restricted Subsidiaries taken as a whole;



     (h) Liens securing judgments or orders for the payment of money not constituting an Event of
Default under Section 8.01(h) or securing appeal or other surety bonds relating to such
judgments;



     (i) Liens securing Indebtedness permitted under Section 7.03(f)(i); provided
that (i) such Liens do not at any time encumber any property other than the property financed by
such Indebtedness, replacements thereof and additions and accessions to such financed property and
the products and proceeds of such property and (ii) the Indebtedness secured thereby does not
exceed the cost or fair market value, whichever is lower, of the property being acquired on the
date of acquisition;



     (j) Liens on the Collateral securing Permitted Pari Passu Indebtedness;



     (k) Liens on assets not constituting (or required to constitute (including in connection with
a Collateral Reinstatement Event)) Collateral only securing Indebtedness permitted under
Section 7.03(l);



     (l) Liens on assets of any Foreign Subsidiary (other than a Foreign Subsidiary described in
clause (c) of the definition of such term) securing only Indebtedness permitted under Section
7.03(i);



     (m) Liens on assets of (i) any Subsidiary which are in existence at the time that such
Subsidiary is acquired pursuant to a Permitted Acquisition and (ii) the Company or any Restricted
Subsidiary existing at the time such assets are purchased or otherwise acquired by the Company or
such Restricted Subsidiary pursuant to a transaction permitted pursuant to this Agreement;
provided that with respect to each of the foregoing clauses (i) and (ii), such Liens (A)
only secure Indebtedness permitted under Section 7.03(f)(ii); (B) attach only to specific
assets and do not constitute a blanket or all asset Lien and (C) do not extend to, or attach to,
any of the other assets of the Borrowers or any of their Restricted Subsidiaries;



     (n) Liens on assets of Limited Subsidiaries only securing Indebtedness permitted under
Section 7.03(j); provided that such Liens attach only to the assets of the Limited
Subsidiaries incurring or guaranteeing such Indebtedness and do not extend to or attach to any
assets of the Borrowers or any other Restricted Subsidiaries (other than the Limited Subsidiaries
obligated on such Indebtedness);



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     (o) (i) Liens of a collecting bank arising in the ordinary course of business under Section
4-210 of the Uniform Commercial Code as in effect in the relevant jurisdiction, (ii) Liens of any
depositary bank or securities intermediary in connection with statutory, common law and contractual
rights of set-off and recoupment with respect to any deposit account or securities account of any
Loan Party or any Restricted Subsidiary thereof, including any Lien granted in the ordinary course
which arises from the general banking conditions (algemene bankvoorwaarden) as generally applied in
respect to Dutch bank accounts;



     (p) (i) contractual or statutory Liens of lessors to the extent relating to the property and
assets relating to any lease agreements with such lessors and (ii) contractual Liens of suppliers
(including sellers of goods) or customers to the extent limited to the property or assets relating
to such contract, and all products and proceeds thereof;



     (q) any interest or title of a licensor, sublicensor, lessor or sublessor with respect to any
assets under any license or lease agreement entered into in the ordinary course of business;
provided that the same do not interfere in any material respect with the business of the
Company and its Restricted Subsidiaries taken as a whole;



     (r) Liens in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods;



     (s) Liens on insurance policies of the Company and its Restricted Subsidiaries and the
proceeds thereof securing the financing of the premiums with respect to such insurance policies;



     (t) Liens (i) solely on cash advances in favor of the seller of any property to be acquired in
an Investment permitted pursuant to Section 7.02(f)(ii), (g), (h) or
(i) to be applied against the acquisition price for such Investment or (ii) consisting of
an agreement to Dispose of any property in a Disposition permitted under Section 7.05, in
each case, solely to the extent such Investment or Disposition, as the case may be, would have been
permitted on the date of the creation of such Lien;



     (u) Liens arising out of customary conditional sale, title retention, consignment or similar
arrangements for sale of goods entered into by the Company or any of the Restricted Subsidiaries in
the ordinary course of business;



     (v) Liens deemed to exist in connection with Investments in repurchase agreements permitted
under Section 7.02 and reasonable and customary initial deposits and margin deposits and
similar Liens attaching to commodity trading accounts or brokerage accounts maintained in the
ordinary course of business and not for speculative purposes;



     (w) purported Liens evidenced by the filing of precautionary UCC financing statements not
evidencing a security interest in any of the property of the Company or any of its Restricted
Subsidiaries; and



     (x) Liens on Receivables and Related Assets arising under any Permitted Receivables Financing
permitted under Section 7.03(s), provided that any such Lien shall only apply to
Receivables of the Borrower or any applicable Subsidiary purported to be transferred to a
Receivables Financing Subsidiary or another applicable Person in accordance with the applicable
Permitted Receivables Facility and to the Related Assets with respect thereto;


provided that, notwithstanding anything to the contrary in this Section, during a
Collateral Release Period none of the foregoing provisions of this Section 7.01 shall
permit any Lien to exist on assets that





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constituted or would constitute Collateral immediately prior to applicable Collateral Release
Event, except (A) to the extent that such Liens were expressly permitted on such assets prior to
giving effect to such Collateral Release Event, and (B) Liens on Receivables and Related Assets
permitted by Section 7.01(x) above.




     7.02 Investments. Make any Investments, except:



     (a) Investments held by the Company or such Restricted Subsidiary in the form of cash or Cash
Equivalents;



     (b) loans and advances to employees of the Company and Restricted Subsidiaries in the ordinary
course of business;



     (c) Investments of (i) the Company or any Restricted Subsidiary in the Company, any other Loan
Party or any Wholly Owned Restricted Subsidiary that is not a Loan Party and (ii) any Restricted
Subsidiary that is not a Wholly Owned Restricted Subsidiary in any other Restricted Subsidiary that
is not a Wholly Owned Restricted Subsidiary; provided that if such Investment is in the
form of Indebtedness, such intercompany Indebtedness of the obligor must be permitted by
Section 7.03(e);



     (d) Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof from financially troubled
account debtors, and Investments consisting of prepayments to suppliers in the ordinary course of
business and consistent with past practice;



     (e) Guarantees permitted by Section 7.03;



     (f) Investments of the Company or its Restricted Subsidiaries to the extent that such
Investments either:




     (i) are existing as of the Closing Date and listed on Schedule 7.02; or




     (ii) are to be made after the Closing Date and have been previously disclosed in
reasonable detail to the Administrative Agent and the Lenders in writing at least three (3)
Business Days prior to the Closing Date; provided that each such Investment shall
only be permitted hereunder if the Available Liquidity is not less than $150,000,000 at the
time of and immediately after giving effect to any such Investment;



     (g) Permitted Acquisitions;



     (h) so long as no Default shall have occurred and be continuing or would result therefrom,
Investments (other than a hostile acquisition) of the Company or any of its Restricted Subsidiaries
in an aggregate amount that, when combined with all other Investments previously made pursuant to
this subsection (h) (and after giving effect to any credit for any amount (not in excess of the
original amount invested) that has been realized in respect of such prior Investments made pursuant
to this subsection (h) upon the sale, collection or return of capital thereof), determined at the
time of making such proposed Investment (and after giving pro forma effect to such proposed
Investment), shall not exceed 12.5% of the consolidated total assets of the Company and its
Restricted Subsidiaries determined in accordance with GAAP as of the last day of the fiscal quarter
or fiscal year immediately preceding the date of such investment for which financial statements are
required to be delivered to the Administrative Agent and the Lenders pursuant to Section
6.01 (it being acknowledged and agreed that no Default shall be deemed



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to have occurred if the aggregate amount of all such Investments under this subsection (h)
shall at a later time exceed 12.5% of the consolidated total assets of the Company and its
Restricted Subsidiaries so long as at the time of each such Investment (and immediately after
giving pro forma effect thereto) each such Investment was permitted to be made under this
subsection (h));




     (i) so long as no Default shall have occurred and be continuing or would result therefrom,
Investments (other than a hostile acquisition) of the Company or any of its Restricted Subsidiaries
the aggregate amount of which, when combined with all Restricted Payments made on or prior to such
date pursuant to Section 7.06(d) and all other Investments previously made pursuant to this
Section 7.02(i) (and after giving effect to any credit for any amount (not in excess of the
original amount invested) that has been realized in respect of such prior Investments previously
made pursuant to this subsection (i) upon the sale, collection or return of capital thereof), does
not exceed the Cumulative Available Amount;



     (j) deposits made in the ordinary course of business to secure the performance of leases or
other obligations;



     (k) Swap Contracts permitted pursuant to Section 7.03;



     (l) Investments (including debt obligations and Equity Interests) received in connection with
the bankruptcy or reorganization of suppliers and customers or in settlement of delinquent
obligations of, or other disputes with, customers and suppliers arising in the ordinary course of
business or upon the foreclosure (or other transfer of title in lieu of foreclosure) with respect
to any secured Investment;



     (m) Investments arising out of the receipt by the Company or any Restricted Subsidiary of
non-cash consideration for the Disposition of assets permitted under Section 7.05;



     (n) Investments represented by Guarantees by the Company or any of its Restricted Subsidiaries
of operating leases or of other obligations that do not constitute Indebtedness, in each case,
entered into in the ordinary course of business;



     (o) extensions of trade credit in the ordinary course of business and consistent with
customary credit practices and policies;



     (p) Investments of a Person existing at the time such Person becomes a Restricted Subsidiary
pursuant to an Investment permitted under subsections (f)(ii), (g), (h) or (i) of this Section so
long as such Investments were not made in connection with, or in contemplation of, such Person
becoming a Subsidiary;



     (q) Investments in the ordinary course of business consisting of endorsements for collection
or deposit;



     (r) Investments consisting of the acquisition of development authority or other
quasi-governmental entity bonds pursuant to a Tax Incentive Program, the payment stream with
respect to which mirrors the obligation of the applicable borrower to pay such development
authority or other quasi-governmental entity under any lease relating to such Tax Incentive
Program; and



     (s) Investments of the Company or any Restricted Subsidiary in any Restricted Subsidiary
received in connection with any Permitted Receivables Financing;



     provided that, notwithstanding anything to the contrary in this Section, (A)
Investments in Limited Subsidiaries and Unrestricted Subsidiaries shall be permitted only to the
extent that such



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Investments are permitted pursuant to subsection (h) or subsection (i) (or a combination of
both such subsections) (it being understood and agreed that none of the other provisions of this
Section shall be construed to permit an Investment in a Limited Subsidiary or an Unrestricted
Subsidiary) and (B) any Investment in an Unrestricted Subsidiary (including any Investment measured
at the time of the designation of any Subsidiary as an Unrestricted Subsidiary) shall be
conditioned on the Available Liquidity being not less than $150,000,000 immediately after giving
effect to any such Investment.




     7.03 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:



     (a) Indebtedness under the Loan Documents;



     (b) Indebtedness: (i) outstanding on the date hereof and listed on Schedule 7.03 and
any Refinancing Indebtedness in respect thereof; or (ii) to be incurred after the Closing Date and
which has been previously disclosed in reasonable detail to the Administrative Agent and the
Lenders in writing at least three (3) Business Days prior to the Closing Date;



     (c) Guarantees of (i) the Company or any Restricted Subsidiary in respect of Indebtedness
otherwise permitted hereunder of the Company or any Restricted Subsidiary (other than in respect of
Indebtedness permitted under subsections (g), (h) and (j) of this Section); (ii) any Loan Party in
respect of Indebtedness permitted under subsections (g) and (h) of this Section; and (iii) any
Limited Subsidiary in respect to Indebtedness permitted under subsection (j) of this Section;



     (d) obligations (contingent or otherwise) of the Company or any Subsidiary existing or arising
under any Swap Contract, provided that (i) such obligations are (or were) entered into by
such Person in the ordinary course of business for the purpose of mitigating risks associated with
liabilities, commitments, investments, assets, or property held or reasonably anticipated by such
Person, or changes in the value of securities issued by such Person, and not for purposes of
speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision
exonerating the non-defaulting party from its obligation to make payments on outstanding
transactions to the defaulting party;



     (e) unsecured intercompany Indebtedness (i) owed by the Company or any Wholly Owned Restricted
Subsidiary to the Company, any other Loan Party or any other Wholly Owned Restricted Subsidiary
that is not a Loan Party, (ii) owed by any Restricted Subsidiary (other than a Wholly Owned
Restricted Subsidiary or a Loan Party) to the Company, any other Loan Party or a Wholly Owned
Restricted Subsidiary that is not a Loan Party so long as the related Investment by the Company,
other Loan Party or Wholly Owned Restricted Subsidiary that is not a Loan Party is permitted by
Section 7.02(h) or (i), (iii) owed by a Restricted Subsidiary that is not a Wholly
Owned Restricted Subsidiary to another Restricted Subsidiary that is not a Wholly Owned Restricted
Subsidiary and (iv) owed by the Company or any Wholly Owned Restricted Subsidiary to a Restricted
Subsidiary that is not a Wholly Owned Restricted Subsidiary and not a Loan Party so long as (A) the
Investment by such Restricted Subsidiary is permitted by Section 7.02(h) or (i) and
(B) if such Indebtedness is owing by a Loan Party, it is subordinated to the Obligations in a
manner reasonably satisfactory to the Administrative Agent;



     (f) (i) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase
money obligations for fixed or capital assets within the limitations set forth in Section
7.01(i) and Refinancing Indebtedness in respect of such Indebtedness; (ii) other Indebtedness
of a Person existing at the time such Person became a Subsidiary or assets were acquired from such
Person in connection with an Investment permitted pursuant to Section 7.02 and Refinancing
Indebtedness in respect of such Indebtedness so long as any such Indebtedness described in this
clause (ii) or any Refinancing Indebtedness in respect thereof (A) was not incurred in connection
with, or in contemplation of, such Person becoming a Subsidiary or the acquisition of such assets,
and (B) neither the Company nor any



95









 




Restricted Subsidiary thereof (other than such Person or any other Person that such Person
merges with or that acquires the assets of such Person) shall have any liability or other
obligation with respect to such Indebtedness; provided that the aggregate amount of such
Indebtedness incurred at any time under this subsection (f), when combined with all other
Indebtedness incurred previously pursuant to this subsection (f) (and after giving credit for any
permanent repayments of any such Indebtedness so incurred), determined as of the date of such
incurrence (and after giving pro forma effect to such proposed incurrence), shall not exceed 5% of
the consolidated total assets of the Company and its Restricted Subsidiaries determined in
accordance with GAAP as of the last day of the fiscal quarter or fiscal year immediately preceding
such date of incurrence for which financial statements are required to be delivered to the
Administrative Agent and the Lenders pursuant to Section 6.01 (it being acknowledged and
agreed that no Default shall be deemed to have occurred if the aggregate amount of all such
Indebtedness incurred under this subsection (f) shall at a later time exceed 5% of the consolidated
total assets of the Company and its Restricted Subsidiaries so long as at the time of each such
incurrence each such incurrence was permitted to be made under this subsection (f));




     (g) Indebtedness consisting of Permitted Pari Passu Indebtedness;



     (h) unsecured Indebtedness of the Loan Parties; provided that (i) at the time of
incurrence thereof, no Default has occurred and is continuing or would result from the incurrence
of such Indebtedness immediately following the incurrence of such Indebtedness; (ii) immediately
before and immediately after giving pro forma effect to the incurrence of such Indebtedness the
Company and its Restricted Subsidiaries shall be in compliance with each of the financial covenants
contained in Section 7.12; (iii) such Indebtedness shall not be scheduled to mature prior
to the Maturity Date and shall not have a weighted average life to maturity (as reasonably
determined by the Administrative Agent in accordance with customary financial practice) that is
shorter than the remaining term of the Commitments; and (iv) no Subsidiary of the Company other
than a Loan Party shall be obligated, either primarily or as a guarantor or otherwise, with respect
to such Indebtedness;



     (i) Indebtedness (including Permitted Receivables Financings) of any Restricted Subsidiary
that is a Foreign Subsidiary (other than a Foreign Subsidiary described in clause (c) of the
definition of such term) in an aggregate principal amount at the time of incurrence that, when
combined with all other Indebtedness incurred previously pursuant to this subsection (i) (and after
giving credit for any permanent repayments of any such Indebtedness so incurred), determined as of
the date of such incurrence (and after giving pro forma effect to such proposed incurrence), shall
not exceed 6.5% of the consolidated total assets of the Company and its Foreign Subsidiaries that
are Restricted Subsidiaries determined in accordance with GAAP as of the last day of the fiscal
quarter or fiscal year immediately preceding such date of incurrence for which financial statements
are required to be delivered to the Administrative Agent and the Lenders pursuant to Section
6.01 (it being acknowledged and agreed that no Default shall be deemed to have occurred if the
aggregate amount of all such Indebtedness incurred under this subsection (i) shall at a later time
exceed 6.5% of the consolidated total assets of the Company and its Foreign Subsidiaries that are
Restricted Subsidiaries so long as at the time of each such incurrence each such incurrence was
permitted to be made under this subsection (i));



     (j) Indebtedness of any Limited Subsidiary; provided that (i) at the time of
incurrence thereof, no Default has occurred and is continuing or would result the incurrence of
such Indebtedness; (ii) immediately before and immediately after giving pro forma effect to such
Indebtedness the Company and its Restricted Subsidiaries shall be in compliance with each of the
financial covenants contained in Section 7.12; and (iii) neither the Company nor any
Subsidiary of the Company, other than a Limited Subsidiary, shall be obligated, either primarily or
as a guarantor or otherwise, with respect to such Indebtedness;



96









 





     (k) unsecured Indebtedness in an aggregate principal amount not to exceed $150,000,000 at any
time outstanding;



     (l) additional Indebtedness in an aggregate principal amount not to exceed $100,000,000 at any
time outstanding;



     (m) Indebtedness under or in respect of Cash Management Agreements;



     (n) Indebtedness arising from the honoring by a bank or other financial institution of a
check, draft or other similar instrument drawn against insufficient funds in the ordinary course of
business;



     (o) Indebtedness under performance bonds, surety bonds, release, appeal and similar bonds,
statutory obligations or with respect to workers’ compensation claims, in each case incurred in the
ordinary course of business, and reimbursement obligations in respect of any of the foregoing
(including in respect of letters of credit issued in support of any of the foregoing);



     (p) Indebtedness consisting of promissory notes issued to current or former officers,
directors and employees (or their respective family members, estates or trusts or other entities
for the benefit of any of the foregoing) of any Loan Party or its Subsidiaries to purchase or
redeem Equity Interests of the Company permitted pursuant to Section 7.06(e);



     (q) Indebtedness arising from agreements providing for indemnification or purchase price
adjustments, in each case, incurred or assumed in connection with Investments permitted by or under
Section 7.02(f)(ii), (g), (h) or (i) or the Disposition of any
assets permitted by Section 7.04 or 7.05;



     (r) Indebtedness (i) incurred to finance insurance premiums or (ii) resulting from take-or-pay
obligations contained in supply agreements, in each case, in the ordinary course of business;



     (s) Indebtedness in respect of Permitted Receivables Financings of the Company and/or its
Domestic Subsidiaries so long as (i) the date of the initial incurrence of any such Indebtedness is
a Permitted Receivables Financing Date, (ii) the aggregate outstanding amount of all Permitted
Receivables Financings shall not exceed $300,000,000 at any time, and (iii) no such Indebtedness is
in the form of a term loan facility; and



     (t) Indebtedness in respect of any capital lease incurred in connection with a Tax Incentive
Program.



     7.04 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another
Person, or Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any
Person, except that, so long as no Default exists or would result therefrom:



     (a) any Restricted Subsidiary may merge with (i) the Company, provided that the
Company shall be the continuing or surviving Person, or (ii) any one or more other Restricted
Subsidiaries, provided that each of the following must be satisfied:




     (A) when any Wholly Owned Restricted Subsidiary is merging with a Restricted Subsidiary
that is not Wholly Owned by the Company, the surviving Person shall be a Wholly Owned
Restricted Subsidiary;




     (B) when any Foreign Borrower is merging with another Restricted Subsidiary the



97









 







continuing or surviving Person shall:




     (1) be such Foreign Borrower; or




     (2) (x) become a Foreign Borrower substantially simultaneously with such merger
and assume all of the obligations of the non-surviving or non-continuing Foreign
Borrower pursuant to documentation (including, if reasonably requested by the
Administrative Agent, legal opinions) in form and substance reasonably satisfactory
to the Administrative Agent; and (y) be organized in a jurisdiction that is either
(I) the same jurisdiction as that of the Foreign Borrower that merged into such
Person, (II) a jurisdiction in which another then-existing Foreign Borrower is
organized or (III) a jurisdiction approved by each of the Lenders; and




     (C) when any Guarantor is merging with another Restricted Subsidiary, (1) the
continuing or surviving person shall be such Guarantor or become a Guarantor substantially
simultaneously with such merger and assume all of the obligations of the non-surviving or
non-continuing Guarantor pursuant to documentation (including, if reasonably requested by
the Administrative Agent, legal opinions) in form and substance reasonably satisfactory to
the Administrative Agent and (2) if either party is a Domestic Guarantor, the continuing or
surviving Person shall be or become a Domestic Guarantor; and



     (b) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon
voluntary liquidation or otherwise) to the Company or to another Restricted Subsidiary;
provided that (i) if the transferor in such a transaction is a Guarantor, then the
transferee must either be the Company or a Guarantor and (ii) if the transferor is a Wholly Owned
Restricted Subsidiary, the transferee must be a Wholly Owned Restricted Subsidiary;



     (c) the Company or any of its Restricted Subsidiaries may merge or consolidate with any Person
acquired pursuant to an Investment permitted under Section 7.02(f)(ii), (g),
(h) or (i); provided that:




     (i) if such merger or consolidation involves the Company, the Company shall be the
continuing or surviving Person;




     (ii) if such merger or consolidation involves a Foreign Borrower, the continuing or
surviving person shall:




     (A) be such Foreign Borrower; or




     (B) (1) become a Foreign Borrower substantially simultaneously with such merger
or consolidation and assume all of the obligations of the non-surviving or
non-continuing Foreign Borrower pursuant to documentation (including, if reasonably
requested by the Administrative Agent, legal opinions) in form and substance
reasonably satisfactory to the Administrative Agent, and (2) be organized in a
jurisdiction that is either (x) the same jurisdiction as that of the Foreign
Borrower that merged or consolidated into such Person, (y) a jurisdiction in which
another then-existing Foreign Borrower is organized or (z) a jurisdiction approved
by each of the Lenders; and




     (iii) if such merger or consolidation involves any Guarantor, (A) the continuing or
surviving Person shall be such Guarantor or become a Guarantor substantially simultaneously
with such merger or consolidation and assume all of the obligations of the non-surviving or
non-



98









 







continuing Guarantor pursuant to documentation (including, if requested by the
Administrative Agent, legal opinions) in form and substance reasonably satisfactory to the
Administrative Agent and (B) if such Guarantor is a Domestic Guarantor, the continuing or
surviving Person shall be or become a Domestic Guarantor; and



     (d) so long as no Default exists or would result therefrom, any Restricted Subsidiary may
merge or consolidated with another Person, liquidate or transfer all or substantially all of its
assets to another Person to effect a Disposition permitted under Section 7.05.



     7.05 Dispositions. Make any Disposition or enter into any agreement to make any Disposition,
except:



     (a) Dispositions of obsolete or worn out property or surplus assets (including dormant
manufacturing facilities) that are no longer used or usable in the business of the Company and its
Restricted Subsidiaries;



     (b) Dispositions of inventory in the ordinary course of business;



     (c) Dispositions of equipment or real property to the extent that (i) such property is
exchanged for credit against the purchase price of similar replacement property or (ii) the
proceeds of such Disposition are reasonably promptly applied to the purchase price of such
replacement property;



     (d) Dispositions of property by any Subsidiary to the Company or to a Wholly Owned Subsidiary;
provided that if the transferor of such property is a Subsidiary Guarantor, the transferee
thereof must either be the Company or a Subsidiary Guarantor;



     (e) Dispositions permitted by Sections 7.02, 7.04 or 7.06;



     (f) Dispositions of property or assets in an aggregate amount in any fiscal year that, when
combined with all other Dispositions previously made under this subsection (f) during such fiscal
year (and after giving pro forma effect to such proposed Disposition), do not exceed 12.5% of
consolidated total assets of the Company and its Restricted Subsidiaries determined in accordance
with GAAP as of the last day of the immediately preceding fiscal year for which financial
statements are required to be delivered to the Administrative Agent and the Lenders pursuant to
Section 6.01, or for the 2011 fiscal year, the Audited Financial Statements (it being
acknowledged and agreed that no Default shall be deemed to have occurred if the aggregate amount of
all such Dispositions in any fiscal year shall at a later time exceed 12.5% of the consolidated
total assets of the Company and its Restricted Subsidiaries so long as at the time of each such
Disposition (and immediately after giving pro forma effect thereto) each such Disposition was
permitted to be made under this subsection (f)); provided that, to the extent the proceeds
of any Disposition made under this subsection (f) are reinvested within same fiscal year in which
such Disposition is made in assets used or usable in a business permitted by Section 7.07
as certified in writing by a Responsible Officer to the Administrative Agent (which such writing
shall indicate the date and amount of such reinvestment and the assets or businesses reinvested
in), then from and after the date of receipt by the Administrative Agent of the certificate
evidencing such reinvestment the amount so reinvested will be credited against the amount of
Dispositions made in such fiscal year in determining the aggregate amount of Dispositions permitted
under this subsection (f); provided further that the amount of any Disposition for
purposes of compliance with this subsection (f) shall be the fair market value (determined in good
faith by the board of directors of the Company (or the chief financial officer of the Company if
the fair market value is $10,000,000 or less) and set forth in a certificate delivered to the
Administrative Agent pursuant to Section 6.02(b));



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     (g) the Company or any Restricted Subsidiary may write-off, discount, sell or otherwise
Dispose of defaulted or past due receivables and similar obligations in the ordinary course of
business and not as part of an accounts receivable financing transaction;



     (h) to the extent constituting a Disposition, (i) issuances of Equity Interests in the
ordinary course of business and (ii) the issuance of Equity Interests of the Company or any
Restricted Subsidiary pursuant to an employee stock incentive plan or grant or similar equity plan
or 401(k) plans of the Company or any Restricted Subsidiary for the benefit of directors, officers,
employees or consultants;



     (i) the Disposition of any Swap Contract;



     (j) Dispositions of Investments in cash and Cash Equivalents;



     (k) licenses and sublicenses of intellectual property rights in the ordinary course of
business not interfering, individually or in the aggregate, in any material respect with the
conduct of the business of the Company and its Restricted Subsidiaries, taken as a whole;



     (l) leases, subleases, licenses or sublicenses of real or personal property granted by the
Company or any of its Restricted Subsidiaries to others in the ordinary course of business not
interfering in any material respect with the business of the Company and its Restricted
Subsidiaries, taken as a whole;



     (m) transfers or other Dispositions of property subject to condemnation, takings or casualty
events;



     (n) Dispositions of Unrestricted Subsidiaries, including, without limitation, Dispositions of
any Indebtedness of, or other Investments in, Unrestricted Subsidiaries;



     (o) Dispositions of assets acquired pursuant to an Investment permitted under Section
7.02(f)(ii), (g), (h) or (i) which assets are not used or useful to
the core or principal business of the Company and its Restricted Subsidiaries (it being understood
that the amount of any “basket” in Section 7.02 deemed utilized by any such Investment
shall be increased by the amount of any consideration received by the Company and its Restricted
Subsidiaries as a result of any such Disposition);



     (p) Dispositions of Receivables and Related Assets pursuant to the terms of any Permitted
Receivables Financing in accordance with the terms thereof;



     (q) Dispositions of assets pursuant to Tax Incentive Programs; and



     (r) Dispositions of assets previously disclosed in reasonable detail to the Administrative
Agent and the Lenders in writing at least three (3) Business Days prior to the Closing Date;



     provided that any Disposition made to a Loan Party by a Person that is not a Loan
Party shall be for no more than fair market value and any Disposition made to an Unrestricted
Subsidiary or a Limited Subsidiary shall be for at least fair market value (determined in good
faith by the Company at the time of such Disposition).



     7.06 Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or
incur any obligation (contingent or otherwise) to do so, except that, so long as no Default shall
have occurred and be continuing at the time of any action described below or would result
therefrom:



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     (a) each Restricted Subsidiary may make dividends or distributions to the Company, the
Guarantors, another Restricted Subsidiary and any other Person that owns an Equity Interest in such
Restricted Subsidiary, ratably according to their respective holdings of the type of Equity
Interest in respect of which such Restricted Payment is being made;



     (b) the Company and each Restricted Subsidiary may declare and make dividend payments or other
distributions payable solely in Equity Interests (other than Disqualified Equity Interests) of such
Person;



     (c) the Company and each Restricted Subsidiary may purchase, redeem or otherwise acquire
Equity Interests issued by it with the proceeds received from the substantially concurrent issue of
new shares of its Equity Interests (other than Disqualified Equity Interests);



     (d) the Company and its Restricted Subsidiaries may pay dividends, make other distributions
and/or purchase, redeem or otherwise acquire Equity Interests issued by it so that, when aggregated
with all Investments permitted to be made pursuant to Section 7.02(i) and all other such
dividends, distributions, purchases, redemptions and acquisitions made pursuant to this Section
7.06(d), the aggregate amount thereof does not exceed the Cumulative Available Amount;



     (e) the Company and its Restricted Subsidiaries shall be permitted to make (i) prepayments or
redemptions prior to the stated maturity of the notes and other Indebtedness under the Existing
Indentures, but with respect to prepayment of Indebtedness under the 2006 Indenture, only to the
extent that at the time of and immediately after giving pro forma effect thereto, Available
Liquidity shall be not less than $150,000,000 and (ii) redemptions or repayments at the stated
maturity date of the notes and other Indebtedness under the Existing Indentures; provided
that no Loans under this Agreement may be utilized to make any such redemption or repayment of the
notes or other Indebtedness under the 2006 Indenture as otherwise permitted under such clause (ii),
unless, immediately after giving pro forma effect thereto, Available Liquidity shall be not less
than $150,000,000; and



     (f) the Company may redeem, retire or otherwise acquire its Equity Interests from present or
former officers, employees, directors or consultants (or their family members or trusts or other
entities for the benefit of any of the foregoing) or make severance payments to such Persons in
connection with the death, disability or termination of employment or consultancy of any such
officer, employee, director or consultant.



     7.07 Change in Nature of Business. Engage in any material line of business substantially
different from those lines of business conducted by the Company and its Restricted Subsidiaries on
the date hereof or any business reasonably related or incidental thereto.



     7.08 Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate
of the Company, whether or not in the ordinary course of business, other than on fair and
reasonable terms substantially as favorable to the Company or such Restricted Subsidiary as would
be obtainable by the Company or such Restricted Subsidiary at the time in a comparable arm’s length
transaction with a Person other than an Affiliate; provided that the foregoing restriction
shall not apply to



     (a) transactions between or among the Company, any other Loan Party and any of its Wholly
Owned Restricted Subsidiaries that are not Loan Parties or between and among any Wholly Owned
Restricted Subsidiaries;



     (b) employment, service and severance arrangements (including equity incentive plans and
employee benefit plans and arrangements) and employee discount purchase programs with their



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respective directors, officers and employees in the ordinary course of business and discount
purchase programs with their Affiliates in the ordinary course of business;




     (c) charitable contributions made to their Affiliates in the ordinary course of business;



     (d) payment of customary compensation, fees and reasonable out of pocket costs to, and
indemnities for the benefit of, directors, officers and employees of the Company and its Restricted
Subsidiaries in the ordinary course of business, and discounts provided to directors, officers and
employees of the Company and its Restricted Subsidiaries pursuant to customary discount purchase
programs in the ordinary course of business;



     (e) any agreement, instrument or arrangement as in effect as of the Closing Date and set forth
on Schedule 7.08(e), as the same may be amended (so long as any such amendment does not
amend the applicable agreement in a manner adverse to the Administrative Agent, the L/C Issuers and
the Lenders in any material respect);



     (f) Restricted Payments permitted to be made under Section 7.06; and



     (g) transactions with directors, officers and employees of the Company or any of its
Subsidiaries not required to be disclosed pursuant to Item 404(a) of Regulation S-K of the
Securities Exchange Act of 1934.



     7.09 Burdensome Agreements. Enter into any Contractual Obligation (other than this Agreement
or any other Loan Document) that: (a) limits the ability of any Restricted Subsidiary that is not a
Loan Party to make Restricted Payments to the Company or any Guarantor or to otherwise transfer
property to the Company or any Guarantor; (b) limits the ability of any Restricted Subsidiary that
is a (1) Domestic Subsidiary to Guarantee the Obligations or (2) Foreign Subsidiary to Guarantee
the Foreign Obligations; or (c) limits the ability of the Company or any Domestic Subsidiary to
create, incur, assume or suffer to exist Liens on property of such Person of the type constituting,
or required from time to time to constitute, Collateral pursuant to the Loan Documents for the
benefit of the Secured Parties to secure the Obligations (or that requires the grant of a Lien to
secure an obligation of such Person if a Lien is granted to secure another obligation of such
Person); provided that the foregoing clauses (a) through (c) shall not apply to limitations
that:




     (i) are incurred in favor of any holder of Indebtedness permitted under (A) Section
7.03(f)(i) solely to the extent any such limitation relates to the property financed by
or the subject of such Indebtedness or (B) Section 7.03(s) solely to the extent any
such limitation relates to Receivables and Related Assets that are the subject of a
Permitted Receivables Financing permitted hereunder;




     (ii) are imposed by applicable Laws;




     (iii) are customary provisions restricting subletting or assignment of any lease
governing a leasehold interest of the Company or any Restricted Subsidiary;




     (iv) are customary restrictions on Dispositions of real property interests found in
reciprocal easement agreements of the Company or any Restricted Subsidiary;




     (v) are customary restrictions contained in an agreement related to the Disposition of
assets (to the extent such sale is permitted pursuant to Section 7.05) that limit
the encumbrance of such assets pending the consummation of such Disposition;



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     (vi) are customary provisions restricting assignment of any agreement entered into in
the ordinary course of business;




     (vii) are in the Organization Documents or any related joint venture or similar
agreements binding on or applicable to any Restricted Subsidiary that is not a Wholly Owned
Restricted Subsidiary (but only to the extent such limitation covers only the assets of such
Restricted Subsidiary and any Equity Interest in such Restricted Subsidiary);




     (viii) are contained in any agreement (1) evidencing Indebtedness which a Loan Party or
Subsidiary may create, incur, assume, or permit or suffer to exist under Section
7.03 and which Indebtedness is secured by a Lien permitted to exist under Section
7.01, and (2) which prohibits the transfer of, and the creation of any other Lien on,
the property securing such Indebtedness (and any replacement property and customary
provisions in respect of proceeds, accessions, and other after-acquired property);




     (ix) (A) exist on the date hereof and (to the extent not otherwise permitted by this
Section) either are contained in the 2002 Indenture (as in effect on the date hereof) or the
2006 Indenture (as in effect on the date hereof) or are listed on Schedule 7.09
hereto and (B) to the extent limitations permitted by clause (A) are set forth in an
agreement evidencing Indebtedness, are set forth in any agreement evidencing any Refinancing
Indebtedness in respect of such Indebtedness so long as such modification, replacement,
renewal, extension or refinancing does not expand the scope of such limitation;




     (x) are binding on a Restricted Subsidiary at the time such Restricted Subsidiary first
becomes a Restricted Subsidiary so long as such limitations were not entered into or created
in contemplation of such Person becoming a Restricted Subsidiary; and




     (xi) contained in any Guarantee entered into by the Company or a Restricted Subsidiary
relating to the Indebtedness of any Subsidiary permitted to be incurred under Section
7.03, which subordinates any rights of the Company or any Restricted Subsidiary
thereunder to payment from such Subsidiary to the payment in full of such Indebtedness.



     provided that, notwithstanding anything to the contrary in this Section, neither the
Company nor any of its Restricted Subsidiaries shall create, incur, assume, or permit or suffer to
exist any restriction on the granting of Liens in favor of the Administrative Agent on assets of
the type that are, or would constitute, Collateral under any Security Instrument in effect
immediately prior to any Collateral Release Event.



     7.10 Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock
(within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of
purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.



     7.11 Accounting Changes; Organizational Documents.



     (a) Change the fiscal year end of the Company.



     (b) Make (without the consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed)) any material change in its accounting treatment and reporting policies not
permitted by GAAP.



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     (c) Amend, modify or change any Organization Document of any Loan Party in any manner that
materially and adversely affects the rights and interests of the Secured Parties under the Loan
Documents or the rights and interests of the Secured Parties with respect to the Collateral.



     7.12 Financial Covenants.



     (a) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest Coverage
Ratio as of the end of any fiscal quarter of the Company to be less than 3.00 to 1.00.



     (b) Consolidated Net Leverage Ratio. Permit the Consolidated Net Leverage Ratio as of
the end of any fiscal quarter of the Company to be greater than 3.75 to 1.00.



     7.13 Receivables Financing Subsidiaries. The Company will not at any time permit any
Receivables Financing Subsidiary (a) to own or hold any assets, or conduct any operations, other
than those reasonably necessary to comply with the terms of a Permitted Receivables Financing to
which such Receivables Financing Subsidiary is a party and Investments in the form of unsecured
intercompany Indebtedness owed by the Company or any Restricted Subsidiary to such Receivables
Financing Subsidiary which is subordinated in right of payment to the Obligations, or (b) to incur,
assume or suffer to exist any Indebtedness other than Indebtedness permitted by Section
7.03(s).



ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES




     8.01 Events of Default. Any of the following occurrences (each an “Event of
Default”):



     (a) Non-Payment. Any Borrower or any other Loan Party fails to pay (i) when and as
required to be paid herein, and in the currency required hereunder, any amount of principal of any
Loan or any L/C Obligation (other than any Unreimbursed Amount repaid with the proceeds of
Committed Loans made pursuant to Section 2.01(c)(i)) or (ii) within five (5) days after the
same becomes due, any other amount payable hereunder or under any other Loan Document; or



     (b) Specific Covenants. The Company or any of its Restricted Subsidiaries fails to
perform or observe any term, covenant or agreement contained in any of Sections 2.19(a),
6.02(b), 6.03(a), 6.05(a) (solely with respect to the maintenance of any
Borrower’s existence), 6.10, 6.11, 6.14, 6.16, 11.20(b) or
Article VII; or



     (c) Other Defaults. The Company or any of its Restricted Subsidiaries fails to
perform or observe any other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such failure continues
for thirty (30) days after the earlier of (i) the date on which a Responsible Officer of the
Company obtains actual knowledge of such failure or (ii) receipt by the Company of written notice
thereof from the Administrative Agent; or



     (d) Representations and Warranties. Any representation, warranty, certification or
statement of fact made or deemed made by the Company or any of its Restricted Subsidiaries herein,
in any other Loan Document, or in any document delivered in connection herewith or therewith shall
be incorrect or misleading in any material respect when made or deemed made (or, if qualified by
materiality or Material Adverse Effect, in any respect); or



     (e) Cross-Default. (i) The Company or any Restricted Subsidiary (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise) in respect of (1) any Permitted Pari Passu Indebtedness or (2) any other Indebtedness or



104









 




Guarantee (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an
aggregate principal amount (including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit arrangement) of more than the
Threshold Amount, or (B) fails to observe or perform any other agreement or condition relating to
the Permitted Pari Passu Indebtedness or any such other Indebtedness or Guarantee referred to in
clause (i)(A)(2) above or contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event occurs, the effect of which default or other event is to cause, or to
permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such
Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or
to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or
an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded;
or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap
Contract) resulting from (A) any event of default under such Swap Contract as to which the Company
or any Restricted Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any
Termination Event (as so defined) under such Swap Contract as to which the Company or any
Restricted Subsidiary is an Affected Party (as so defined) and, in either event, the Swap
Termination Value owed by the Company or such Restricted Subsidiary as a result thereof is greater
than the Threshold Amount; or




     (f) Insolvency Proceedings, Etc. (i) Any Loan Party or any of its Restricted
Subsidiaries that is a Material Subsidiary institutes or consents to the institution of any
proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or
applies for or consents to the appointment of any receiver, trustee, custodian, conservator,
liquidator, examiner, rehabilitator or similar officer for it or for all or any material part of
its property; or (ii) any receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer is appointed without the application or consent of such Person and the appointment
continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief
Law relating to any such Person or to all or any material part of its property is instituted
without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or
an order for relief is entered in any such proceeding; or



     (g) Inability to Pay Debts; Attachment. (i) The Company or any Restricted Subsidiary
that is a Material Subsidiary becomes unable or admits in writing its inability or fails generally
to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or
similar process is issued or levied against all or any material part of the property of any such
Person and is not released, vacated or fully bonded within 30 days after its issue or levy; or



     (h) Judgments. There is entered against the Company or any Restricted Subsidiary that
is a Material Subsidiary (i) one or more final judgments or orders for the payment of money in an
aggregate amount (as to all such judgments or orders) exceeding the Threshold Amount (to the extent
not covered by independent, third-party insurance as to which the applicable insurer has not
disputed, denied or failed to acknowledge coverage), or (ii) any one or more non-monetary final
judgments that have, or could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any
creditor upon such judgment or order, or (B) there is a period of 30 consecutive days during which
a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in
effect; or



     (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in a Material Adverse Effect, or
(ii) the Company or any ERISA Affiliate fails to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its withdrawal liability under
Section 4201 of ERISA



105









 




under a Multiemployer Plan which has resulted or could reasonably be expected to result in the
occurrence of a Material Adverse Effect; or




     (j) Invalidity of Loan Documents. Any material provision of any Loan Document, at any
time after its execution and delivery and for any reason other than as expressly permitted
hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force
and effect; or any Loan Party or any other Person contests in writing the validity or
enforceability of any material provision of any Loan Document; or any Loan Party denies in writing
that it has any or further liability or obligation under any Loan Document (other than as a result
of repayment in full of the Obligations and termination of the Commitments), or purports to revoke,
terminate or rescind any material provision of any Loan Document; or



     (k) Change of Control. There occurs any Change of Control.



     8.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the
Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders,
take any or all of the following actions:



     (a) declare the Commitment of each Lender and any obligation of the L/C Issuers to make L/C
Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;



     (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document
to be immediately due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrowers;



     (c) require that the Company Cash Collateralize the L/C Obligations (in an amount equal to the
then Outstanding Amount thereof); and



     (d) exercise on behalf of itself, the Lenders and the L/C Issuers all rights and remedies
available to it, the Lenders and the L/C Issuers under the Loan Documents;


provided that upon the occurrence of an actual or deemed entry of an order for relief with
respect to any Borrower under the Bankruptcy Code of the United States (or any analogous Laws of
any other applicable jurisdiction), the obligation of each Lender to make Loans and any obligation
of the L/C Issuers to make L/C Credit Extensions shall automatically terminate, the unpaid
principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable, and the obligation of the Company to Cash Collateralize the
L/C Obligations as aforesaid shall automatically become effective, in each case without further act
of the Administrative Agent or any Lender or any L/C Issuer.




     8.03 Application of Funds. After the exercise of remedies provided for in Section
8.02 (or after the Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set forth in the proviso
to Section 8.02), any amounts received on account of the Obligations shall, subject to the
provisions of Section 2.17 and 2.18, be applied by the Administrative Agent in the
following order:



     First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article III) payable to the Administrative
Agent in its capacity as such;



106









 





     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders
and the L/C Issuers (including fees, charges and disbursements of counsel to the respective Lenders
and the L/C Issuers and amounts payable under Article III), ratably among them in
proportion to the respective amounts described in this clause Second payable to them;



     Third, to payment of that portion of the Obligations constituting accrued and unpaid
Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably
among the Lenders and the L/C Issuers in proportion to the respective amounts described in this
clause Third payable to them;



     Fourth, to (a) payment of that portion of the Obligations constituting unpaid
principal of the Loans and L/C Borrowings, (b) payment of Obligations then owing under Secured
Hedge Agreements and Secured Cash Management Agreements and (c) Cash Collateralize that portion of
L/C Obligations composed of the aggregate undrawn amount of Letters of Credit to the extent not
otherwise Cash Collateralized by the Company pursuant to Sections 2.03, 2.17 and/or
6.16, ratably among the Lenders, the L/C Issuers, the Hedge Banks and the Cash Management
Banks in proportion to the respective amounts described in this clause Fourth held by them;
and



     Last, the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Company or as otherwise required by Law.


Subject to Sections 2.03(c) and 2.17, amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on
deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired,
such remaining amount shall be applied to the other Obligations, if any, in the order set forth
above.




     Notwithstanding the foregoing, Obligations arising under Secured Cash Management Agreements
and Secured Hedge Agreements shall be excluded from the application described above if the
Administrative Agent has not received written notice thereof, together with such supporting
documentation as the Administrative Agent may request, from the applicable Cash Management Bank or
Hedge Bank, as the case may be. Each Cash Management Bank or Hedge Bank not a party to the Credit
Agreement that has given the notice contemplated by the preceding sentence shall, by such notice,
be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to
the terms of Article IX hereof for itself and its Affiliates as if a “Lender” party hereto.



ARTICLE IX.

ADMINISTRATIVE AGENT




     9.01 Appointment and Authority.



     (a) Each of the Lenders and each L/C Issuer hereby irrevocably appoints Bank of America to act
on its behalf as the Administrative Agent hereunder and under the other Loan Documents and
authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers
as are delegated to the Administrative Agent by the terms hereof or thereof, together with such
actions and powers as are reasonably incidental thereto. The provisions of this Article are solely
for the benefit of the Administrative Agent, the Lenders and the L/C Issuers, and no Borrower shall
have rights as a third party beneficiary of any of such provisions.



107









 





     (b) The Administrative Agent shall also act as the “collateral agent” under the Loan
Documents, and each of the Lenders (including in its capacities as a potential Hedge Bank and a
potential Cash Management Bank) and each L/C Issuer hereby irrevocably appoints and authorizes the
Administrative Agent to act as the agent of such Lender and such L/C Issuer for purposes of
acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties
to secure any of the Obligations, together with such powers and discretion as are reasonably
incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any
co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to
Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any
portion thereof) granted under the Security Instruments, or for exercising any rights and remedies
thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all
provisions of this Article IX and Article XI (including Section 11.04(c),
as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the
Loan Documents) as if set forth in full herein with respect thereto.



     9.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall,
unless otherwise expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such Person and its
Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with the Borrowers or any
Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder
and without any duty to account therefor to the Lenders.



     9.03 Exculpatory Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:



     (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;



     (b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided
for herein or in the other Loan Documents), provided that the Administrative Agent shall
not be required to take any action that, in its opinion or the opinion of its counsel, may expose
the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law;
and



     (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to
any of the Borrowers or any of their respective Affiliates that is communicated to or obtained by
the Person serving as the Administrative Agent or any of its Affiliates in any capacity.



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 11.01 and 8.02) or (ii)
in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by the Company, a Lender or a L/C Issuer.



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     The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.



     9.04 Reliance by Administrative Agent.



     The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person. The Administrative Agent also may rely upon any statement made to it orally
or by telephone and believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition hereunder to the
making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or a L/C Issuer, the Administrative Agent may presume that such condition
is satisfactory to such Lender or such L/C Issuer unless the Administrative Agent shall have
received notice to the contrary from such Lender or such L/C Issuer prior to the making of such
Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal
counsel (who may be counsel for the Company), independent accountants and other experts selected by
it, and shall not be liable for any action taken or not taken by it in accordance with the advice
of any such counsel, accountants or experts.



     9.05 Delegation of Duties. The Administrative Agent may perform any and all of its duties and
exercise its rights and powers hereunder or under any other Loan Document by or through any one or
more sub agents appointed by the Administrative Agent. The Administrative Agent and any such sub
agent may perform any and all of its duties and exercise its rights and powers by or through their
respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub
agent and to the Related Parties of the Administrative Agent and any such sub agent, and shall
apply to their respective activities in connection with the syndication of the credit facilities
provided for herein as well as activities as Administrative Agent.



     9.06 Resignation of Administrative Agent.



     (a) The Administrative Agent may at any time give notice of its resignation to the Lenders,
the L/C Issuers and the Company. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, subject, so long as no Event of Default exists and is then
continuing, to the written consent of the Company (such consent not to be unreasonably withheld,
delayed or conditioned), to appoint a successor, which shall be a bank with an office in the United
States, or an Affiliate of any such bank with an office in the United States. If no such successor
shall have been so appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its resignation (the
“Resignation Effective Date”), then the retiring Administrative Agent may on behalf of the
Lenders and the L/C Issuers, appoint a successor Administrative Agent meeting the qualifications
set forth above; provided that if the Administrative Agent shall notify the Company and the
Lenders that no qualifying Person has accepted such appointment (including by reason of the failure
to obtain the Company’s consent), then such resignation shall nonetheless become effective in
accordance with such notice on the Resignation Effective Date.



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     (b) If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause
(d) of the definition of Defaulting Lender, the Required Lenders may, to the extent permitted by
applicable Law, by notice in writing to the Company and such Person, remove such Person as
Administrative Agent and (subject, so long as no Event of Default exists and is then continuing, to
the written consent of the Company (such consent not to be unreasonably withheld, delayed or
conditioned)) appoint a successor, which shall be a bank with an office in the United States, or
an Affiliate of any such bank with an office in the United States; provided that, without
the consent of the Company (not to be unreasonably withheld), the Required Lenders shall not be
permitted to select a successor that is not a U.S. financial institution described in Treasury
Regulation Section 1.1441-1(b)(2)(ii) or a U.S. branch of a foreign bank described in Treasury
Regulation Section 1.1441-1(b)(2)(iv)(A). If no such successor shall have been appointed by the
Required Lenders and shall have accepted such appointment within thirty (30) days (or such earlier
day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such
removal shall nonetheless become effective in accordance with such notice on the Removal Effective
Date.



     (c) With effect from the Resignation Effective Date or the Removal Effective Date (as
applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties
and obligations hereunder and under the other Loan Documents (except that in the case of any
collateral security held by the Administrative Agent on behalf of the Lenders or the L/C Issuers
under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to
hold such collateral security until such time as a successor Administrative Agent is appointed) and
(2) all payments, communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and each L/C Issuer directly, until
such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for
above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers, privileges and duties
of the retiring (or retired) or removed Administrative Agent, and the retiring or removed
Administrative Agent shall be discharged from all of its duties and obligations hereunder or under
the other Loan Documents (if not already discharged therefrom as provided in this Section). The
fees payable by the Company to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Company and such successor. After the
retiring or removed Administrative Agent’s resignation or removal hereunder and under the other
Loan Documents, the provisions of this Article and Section 11.04 shall continue in effect
for the benefit of such retiring or removed Administrative Agent, its sub agents and their
respective Related Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring or removed Administrative Agent was acting as Administrative Agent.



     (d) Any resignation by, or removal of, Bank of America as Administrative Agent pursuant to
this Section shall also constitute its resignation as a L/C Issuer and Swing Line Lender. Upon the
acceptance of a successor’s appointment as Administrative Agent hereunder, (i) such successor shall
succeed to and become vested with all of the rights, powers, privileges and duties of the retiring
L/C Issuer and Swing Line Lender, (ii) the retiring L/C Issuer and Swing Line Lender shall be
discharged from all of their respective duties and obligations hereunder or under the other Loan
Documents, and (iii) the successor L/C Issuer shall issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or make other arrangements
satisfactory to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C
Issuer with respect to such Letters of Credit.



     9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and each L/C Issuer
acknowledges that it has, independently and without reliance upon the Administrative Agent or any
other Lender or any of their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender



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and each L/C Issuer also acknowledges that it will, independently and without reliance upon
the Administrative Agent or any other Lender or any of their Related Parties and based on such
documents and information as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement, any other Loan
Document or any related agreement or any document furnished hereunder or thereunder.




     9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the
Arrangers, Book Managers, Syndication Agents or Documentation Agents listed on the cover page
hereof shall have any powers, duties or responsibilities under this Agreement or any of the other
Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or a
L/C Issuer hereunder.



     9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding
under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the
Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall
then be due and payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on any Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise:



     (a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid
and to file such other documents as may be necessary or advisable in order to have the claims of
the Lenders, the L/C Issuers and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C Issuers and the
Administrative Agent and their respective agents and counsel and all other amounts due the Lenders,
the L/C Issuer and the Administrative Agent under Sections 2.03(h) and (i),
2.09 and 11.04) allowed in such judicial proceeding; and



     (b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and each L/C Issuer to make
such payments to the Administrative Agent and, in the event that the Administrative Agent shall
consent to the making of such payments directly to the Lenders and the L/C Issuers, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 11.04.




     Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or any L/C Issuer any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or any
L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or
any L/C Issuer in any such proceeding.



     9.10 Collateral and Guaranty Matters. Each of the Lenders (including in its capacities as a
potential Cash Management Bank and a potential Hedge Bank) and each L/C Issuer irrevocably
authorize the Administrative Agent, at its option and in its discretion,



     (a) to release any Lien on any property granted to or held by the Administrative Agent under
any Loan Document (i) upon termination of the Aggregate Commitments and payment in full of all



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Obligations (other than (A) contingent indemnification obligations as to which no claim has
been asserted and (B) obligations and liabilities under Secured Cash Management Agreements and
Secured Hedge Agreements either (x) as to which arrangements satisfactory to the applicable Cash
Management Bank or Hedge Bank shall have been made or (y) notice has not been received by the
Administrative Agent from the applicable Cash Management Bank or Hedge Bank, as the case may be,
that amounts are due and payable under such Secured Cash Management Agreement or Secured Hedge
Agreement, as the case may be) and the expiration or termination of all Letters of Credit (other
than Extended Letters of Credit and any other Letter of Credit the Outstanding Amount of which has
been Cash Collateralized or back-stopped by a letter of credit or other credit support in form and
substance reasonably satisfactory to the Administrative Agent and the applicable L/C Issuer), (ii)
that is sold or to be sold as part of or in connection with any Disposition permitted hereunder or
under any other Loan Document, (iii) in connection with the release of the Collateral provided in
Section 11.20(a) or (iv) if approved, authorized or ratified in writing in accordance with
Section 11.01;




     (b) to release any Guarantor from its obligations under the Guaranty if such Person ceases to
be a Restricted Subsidiary as a result of a transaction permitted hereunder; and



     (c) to subordinate any Lien on any property granted to or held by the Administrative Agent
under any Loan Document to the holder of any Lien on such property that is permitted by Section
7.01(i).



     Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release or subordinate its interest in particular
types or items of property, or to release any Guarantor from its obligations under the Guaranty
pursuant to this Section 9.10. In each case as specified in this Section 9.10, the
Administrative Agent will, at the Company’s expense, execute and deliver to the applicable Loan
Party such documents as such Loan Party may reasonably request to evidence the release of such item
of Collateral from the assignment and security interest granted under the Security Instruments or
to subordinate its interest in such item, or to release such Guarantor from its obligations under
the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section
9.10.



     9.11 Secured Cash Management Agreements and Secured Hedge Agreements. No Cash Management Bank
or Hedge Bank that obtains the benefits of Section 8.03, any Guaranty or any Collateral by
virtue of the provisions hereof or of any Guaranty or any Security Instrument shall have any right
to notice of any action or to consent to, direct or object to any action hereunder or under any
other Loan Document or otherwise in respect of the Collateral (including the release or impairment
of any Collateral) other than in its capacity as a Lender and, in such case, only to the extent
expressly provided in the Loan Documents. Notwithstanding any other provision of this Article
IX to the contrary, the Administrative Agent shall not be required to verify the payment of, or
that other satisfactory arrangements have been made with respect to, Obligations arising under
Secured Cash Management Agreements and Secured Hedge Agreements unless the Administrative Agent has
received written notice of such Obligations, together with such supporting documentation as the
Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the
case may be.



ARTICLE X.

COLLECTION ALLOCATION MECHANISM




     10.01 Implementation of CAM.



     (a) On the CAM Exchange Date, to the extent not otherwise prohibited by Law or otherwise, (i)
each Lender shall immediately be deemed to have acquired participations in the Swing Line Loans in
an amount equal to such Lender’s Applicable Percentage of each Swing Line Loan outstanding on such



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date, and shall promptly make payment therefor to the Swing Line Lender in accordance with
Section 2.04(c) (each of which such participations shall, upon funding thereof, be deemed
to result in such funding Lender directly holding the share of the Swing Line Loans so
participated), (ii) each Lender shall promptly make payment of any L/C Advance owing by it to any
L/C Issuer (together with an interest thereon), (iii) all Loans and any Unreimbursed Amounts
outstanding in any currency other than Dollars and all loans under Permitted Pari Passu
Indebtedness outstanding in any currency other Dollars (collectively, “Obligations to be
Converted”) shall be converted into Dollars (calculated on the basis of the relevant Spot Rates
as of the Business Day immediately preceding the CAM Exchange Date) (“Converted Loans”),
and (iv) each CAM Exchange Party that is a party hereto severally, unconditionally and irrevocably
agrees that it shall purchase or sell in Dollars a participating interest in the Designated
Obligations in an amount equal to its CAM Percentage of the outstanding principal amount of the
Designated Obligations, such that in lieu of the interest of each CAM Exchange Party in the
Applicable Facility in which it shall participate prior to the CAM Exchange Date, each such CAM
Exchange Party shall hold an interest in every one of the Applicable Facilities whether or not such
CAM Exchange Party shall have previously participated therein, equal to such CAM Exchange Party’s
CAM Percentage thereof on the CAM Exchange Date. All Converted Loans made to the Company shall
bear interest at the rate which would otherwise be applicable to Base Rate Loans and all Converted
Loans made to a Foreign Borrower shall bear interest at the Overnight Rate applicable to Dollars.
Each CAM Exchange Party that is a party hereto and each Borrower hereby consents and agrees to the
CAM Exchange, and each such CAM Exchange Party 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
Applicable Facility. Each Borrower agrees from time to time to execute and deliver to the
Administrative Agent all instruments and documents as the Administrative Agent shall reasonably
request to evidence and confirm the respective interests of the CAM Exchange Parties after giving
effect to the CAM Exchange.




     (b) If, for any reason, the Obligations to be Converted may not be converted into Dollars in
the manner contemplated by subsection (a) of this Section 10.01, the Administrative Agent
shall determine the Dollar Equivalent of the Obligations to be Converted (calculated on the basis
of the Spot Rate as of the Business Day immediately preceding the date on which such conversion
would otherwise occur pursuant to subsection (a) of this Section 10.01). Such
determination shall be utilized to determine the CAM Percentage of each CAM Exchange Party and the
participations to be exchanged.



     (c) 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 Security
Instrument in respect of the Designated Obligations, shall be distributed to the CAM Exchange
Parties pro rata in accordance with their respective CAM Percentages. Any direct payment received
by a CAM Exchange Party 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
CAM Exchange Parties in accordance herewith.



     10.02 Letters of Credit.



     In the event that, on or after the CAM Exchange Date, the aggregate amount of the Designated
Obligations shall change as a result of a drawing under a Letter of Credit that is not reimbursed
by the Company, then (i) each Lender shall, in accordance with Section 2.03(c), promptly
make its L/C Advance in respect of such Unreimbursed Amount (without giving effect to the CAM
Exchange), (ii) the Administrative Agent shall redetermine the CAM Percentages after giving effect
to such drawing and the making of such L/C Advances and each of the CAM Exchange Parties shall
automatically and without further act be deemed to have exchanged interests in the Designated
Obligations such that each CAM Exchange Party shall own an interest equal to such CAM Exchange
Party’s CAM Percentage in the



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Designated Obligations (and the interests in the Designated Obligations to be received in such
deemed exchange shall, automatically and with no further action required, be converted into Dollars
in accordance with the first sentence of Section 10.01), and (iii) in the event
distributions shall have been made in accordance with clause (c) of Section 10.01, the CAM
Exchange Parties shall make such payments to one another as shall be necessary in order that the
amounts received by them shall be equal to the amounts they would have received had each such
drawing and L/C Advance been outstanding on the CAM Exchange Date. Each such redetermination shall
be binding on each of the Lenders and their successors and assigns and shall be conclusive, absent
manifest error.




     10.03 No Additional Obligations of Loan Parties. The provisions of this Article X are
solely an agreement among the Lenders, the L/C Issuers and the Administrative Agent for the purpose
of allocating risk and no Loan Party shall have any additional obligations to any of the Lenders,
the L/C Issuers, the Administrative Agent or any other Person solely as a result of the operation
of this Article X (except for the obligations of the Borrowers under the last sentence of
Section 10.01(a)).



ARTICLE XI.

MISCELLANEOUS




     11.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Company or any other Loan Party therefrom,
shall be effective unless in writing signed by the Required Lenders and the Company or the
applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent (which
acknowledgement the Administrative Agent shall provide so long as (x) the Lenders (and any other
applicable parties) required under this Section have approved such amendment, waiver or consent in
accordance with this Section and (y) such amendment, waiver or consent does not otherwise affect
the rights or duties of the Administrative Agent under this Agreement or the other Loan Documents
(in which case such amendment, waiver or consent shall require the approval of the Administrative
Agent as described in clause (iii) of the second proviso of this Section)), and each such waiver or
consent shall be effective only in the specific instance and for the specific purpose for which
given; provided that no such amendment, waiver or consent shall:



     (a) waive any condition set forth in Section 4.01(a) without the written consent of
each Lender;



     (b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 8.02) without the written consent of such Lender;



     (c) postpone any date fixed by this Agreement or any other Loan Document for any payment
(excluding mandatory prepayments) of principal, interest, fees or other amounts due to the Lenders
(or any of them) hereunder or under any other Loan Document without the written consent of each
Lender directly affected thereby;



     (d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iv) of the second proviso to this Section 11.01) any fees
or other amounts payable hereunder or under any other Loan Document without the written consent of
each Lender directly affected thereby; provided, however, that only the consent of
the Required Lenders shall be necessary (i) to amend the definition of “Default Rate” or to waive
any obligation of any Borrower to pay interest or Letter of Credit Fees at the Default Rate or (ii)
to amend any financial covenant hereunder (or any defined term used therein) even if the effect of
such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce
any fee payable hereunder;



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     (e) change Section 8.03 in a manner that would alter the pro rata sharing of payments
required thereby without the written consent of each Lender;



     (f) amend Section 1.06 or the definition of “Alternative Currency” without the written
consent of each Lender;



     (g) change any provision of this Section or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant any consent hereunder
without the written consent of each Lender;



     (h) release or subordinate all or substantially all of the value of the Collateral (other than
as authorized by Sections 9.10 or 11.20);



     (i) release (i) any Borrower from its respective Obligations hereunder or under the Loan
Documents, (ii) the Company from its Obligations as a Guarantor of the Obligations hereunder or
under the Loan Documents, or (iii) other Guarantors comprising all or substantially all of the
credit support, in each case (other than as authorized by Section 9.10) without the written
consent of each Lender;



     and, provided further, that (i) no amendment, waiver or consent shall, unless
in writing and signed by the applicable L/C Issuer in addition to the Lenders required above,
affect the rights or duties of such L/C Issuer under this Agreement or any Issuer Document relating
to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall,
unless in writing and signed by the Swing Line Lender in addition to the Lenders required above,
affect the rights or duties of the Swing Line Lender under this Agreement; (iii) no amendment,
waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to
the Lenders required above, affect the rights or duties of the Administrative Agent under this
Agreement or any other Loan Document; (iv) the Fee Letters may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto, (v) while any Incremental
Term Loans remain outstanding, without the prior written consent of the Required Revolving Lenders,
amend, modify or waive (A) Section 4.02 or any other provision of this Agreement if the
effect of such amendment, modification or waiver is to require the Lenders to make Loans when such
Lenders would not otherwise be required to do so, (B) the amount of the Letter of Credit Sublimit
or (C) the amount of the Swing Line Sublimit and (vi) while any Incremental Term Loans remain
outstanding, any term of this Agreement or any other Loan Document relating to the rights or
obligations of the Lenders holding such Incremental Term Loans and not any other Lenders, including
any provision that becomes a part of this Agreement solely as a result of an amendment to this
Agreement entered into in compliance with Section 2.16, may be amended, and the performance
or observance thereof by any Loan Party or any of its Subsidiaries may be waived with the written
consent of only such Lenders (and in the case of any such amendment to any Loan Document, the
written consent of each Loan Party a party thereto), without the need to obtain the consent of any
of the other Lenders. Notwithstanding anything to the contrary herein, no Defaulting Lender shall
have any right to approve or disapprove any amendment, waiver or consent hereunder (and any
amendment, waiver or consent which by its terms requires the consent of all Lenders or each
affected Lender may be effected with the consent of the applicable Lenders other than Defaulting
Lenders) except that (x) the Commitment of such Lender may not be increased or extended without the
consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all
Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than
other affected Lenders shall require the consent of such Defaulting Lender.



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     11.02 Notices; Effectiveness; Electronic Communication.



     (a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (b) below), all
notices and other communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows:




     (i) if to a Borrower, the Administrative Agent, a L/C Issuer or the Swing Line Lender,
to the address, telecopier number, electronic mail address or telephone number specified for
such Person on Schedule 11.02; and




     (ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire (including, as
appropriate, notices delivered solely to the Person designated by a Lender on its
Administrative Questionnaire then in effect for the delivery of notices that may contain
material non-public information relating to the Borrowers).


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




     (b) Electronic Communications. Notices and other communications to the Lenders and
the L/C Issuers hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent, provided that the foregoing shall not apply to notices to any Lender or any L/C
Issuer pursuant to Article II if such Lender or such L/C Issuer, as applicable, has
notified the Administrative Agent that it is incapable of receiving notices under such Article by
electronic communication. The Administrative Agent or the Company may, in its discretion, agree to
accept notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be limited to
particular notices or communications.



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



     (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM



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THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY
RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH
THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its
Related Parties (collectively, the “Agent Parties”) have any liability to any Borrower, any
Lender, any L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of
any kind (whether in tort, contract or otherwise) arising out of any Borrower’s or the
Administrative Agent’s transmission of Borrower Materials through the Internet, except to the
extent that such losses, claims, damages, liabilities or expenses are determined by a court of
competent jurisdiction by a final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Agent Party; provided, however, that in no
event shall any Agent Party have any liability to any Borrower, any Lender, any L/C Issuer or any
other Person for indirect, special, incidental, consequential or punitive damages (as opposed to
direct or actual damages).




     (d) Change of Address, Etc. Each of the Borrowers, the Administrative Agent, the L/C
Issuers and the Swing Line Lender may change its address, telecopier or telephone number for
notices and other communications hereunder by notice to the other parties hereto. Each other
Lender may change its address, telecopier or telephone number for notices and other communications
hereunder by notice to the Company, the Administrative Agent, the L/C Issuers and the Swing Line
Lender. In addition, each Lender agrees to notify the Administrative Agent from time to time to
ensure that the Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each
Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at
all times have selected the “Private Side Information” or similar designation on the content
declaration screen of the Platform in order to enable such Public Lender or its delegate, in
accordance with such Public Lender’s compliance procedures and applicable Law, including United
States Federal and state securities Laws, to make reference to Borrower Materials that are not made
available through the “Public Side Information” portion of the Platform and that may contain
material non-public information with respect to the Borrowers or their respective securities for
purposes of United States Federal or state securities laws.



     (e) Reliance by Administrative Agent, L/C Issuers and Lenders. The Administrative
Agent, the L/C Issuers and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given by or
on behalf of any Borrower even if (i) such notices were not made in a manner specified herein, were
incomplete or were not preceded or followed by any other form of notice specified herein, or (ii)
the terms thereof, as understood by the recipient, varied from any confirmation thereof. The
Company shall indemnify the Administrative Agent, each L/C Issuer, each Lender and the Related
Parties of each of them from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of any Borrower. All
telephonic notices to and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby consents to such
recording.



     11.03 No Waiver; Cumulative Remedies; Enforcement. No failure by any Lender, any L/C Issuer
or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right,
remedy, power or privilege hereunder 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.



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     Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the
Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and
the L/C Issuers; provided that the foregoing shall not prohibit (a) the Administrative
Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely
in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) each L/C
Issuer or the Swing Line Lender from exercising the rights and remedies that inure to its benefit
(solely in its capacity as a L/C Issuer or Swing Line Lender, as the case may be) hereunder and
under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with
Section 11.08 (subject to the terms of Section 2.13), or (d) any Lender from filing
proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a
proceeding relative to any Loan Party under any Debtor Relief Law; and provided,
further, that if at any time there is no Person acting as Administrative Agent hereunder
and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise
ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the
matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section
2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies
available to it and as authorized by the Required Lenders.



     11.04 Expenses; Indemnity; Damage Waiver.



     (a) Costs and Expenses. The Borrowers shall, jointly and severally, pay (i) all
reasonable out of pocket expenses actually incurred by the Administrative Agent, the Arrangers and
their respective Affiliates (including the reasonable and documented fees, charges and
disbursements of (A) one counsel for the Administrative Agent and the Arrangers (taken as a whole),
(B) one local or foreign counsel in each relevant jurisdiction, and (C) any necessary special or
regulatory counsel), in connection with the syndication of the credit facilities provided for
herein, the preparation, negotiation, execution, delivery and administration of this Agreement and
the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or
thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii)
all reasonable and documented out of pocket expenses actually incurred by each L/C Issuer in
connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all out of pocket expenses actually incurred by the Administrative
Agent, any Lender or any L/C Issuer (including the fees, charges and disbursements of (A) one
counsel for the Administrative Agent and the Arrangers (taken as a whole), (B) one counsel for the
Lenders and the L/C Issuers, taken together, (C) one local or foreign counsel in each relevant
jurisdiction, (D) one necessary special or regulatory counsel and (E) in the case of any actual or
perceived conflict of interest with respect to any of the counsel indentified in clauses (A)
through (D) above, one additional counsel to each group of affected Persons similarly situated,
taken as a whole (which in the case of clause (C) shall allow for up to one additional counsel in
each relevant jurisdiction)), in connection with the enforcement or protection of its rights (x) in
connection with this Agreement and the other Loan Documents, including its rights under this
Section, or (y) in connection with the Loans made or Letters of Credit issued hereunder, including
all such out of pocket expenses actually incurred during any workout, restructuring or negotiations
in respect of such Loans or Letters of Credit.



     (b) Indemnification by the Company. The Borrowers shall, jointly and severally,
indemnify the Administrative Agent (and any sub-agent thereof), each Lender and each L/C Issuer,
the Arrangers, and each Related Party of any of the foregoing Persons (each such Person being
called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses (including the fees, charges and
disbursements of (i) one counsel for the Administrative Agent and the Arrangers (taken as a whole),
(ii) one counsel for the other Indemnitees, taken together, (iii) one local or foreign counsel in
each relevant jurisdiction, (iv) one necessary special or regulatory



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counsel and (v) in the case of any actual or perceived conflict of interest with respect to
any of the counsel indentified in clauses (i) through (iv) above, one additional counsel to each
group of affected Persons similarly situated, taken as a whole (which in the case of clause (iii)
shall allow for up to one additional counsel in each relevant jurisdiction)), incurred by any
Indemnitee or asserted against any Indemnitee by any third party or by any Borrower or any other
Loan Party arising out of, in connection with, or as a result of (A) the execution or delivery of
this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto of their respective obligations hereunder or
thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of
the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the
administration of this Agreement and the other Loan Documents (including in respect of any matters
addressed in Section 3.01), (B) any Loan or Letter of Credit or the use or proposed use of
the proceeds therefrom (including any refusal by a L/C Issuer to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (C) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by any Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to any Borrower or any of its
Subsidiaries, or (D) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by the Company or any other Loan Party, and regardless of whether any
Indemnitee is a party thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN
PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses either (x) (1) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or (2) result from a claim brought by the
Company or any other Loan Party against an Indemnitee for a material breach in bad faith of such
Indemnitee’s obligations hereunder or under any other Loan Document, if the Company or such other
Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined
by a court of competent jurisdiction or (y) arise solely from disputes solely between or among
Indemnitees (except that in the event of such dispute involving a claim or proceeding brought
against the Administrative Agent, an Arranger, any L/C Issuer or the Swing Line Lender or any of
their respective Related Parties (in each case, acting in its capacity as such) by the other
Indemnitees, the Administrative Agent, such Arranger, such L/C Issuer or the Swing Line Lender or
such Related Party, as applicable, shall be entitled (subject to the other limitations and
exceptions set forth in this proviso) to the benefit of such indemnification) not relating to or in
connection with acts or omissions by the Company, any of its Subsidiaries or any of the their
respective Affiliates.




     (c) Reimbursement by Lenders. To the extent that the Company for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it
to the Administrative Agent (or any sub-agent thereof), any L/C Issuer or any Related Party of any
of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), such L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment
is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or any L/C Issuer in its capacity as such,
or against any Related Party of any of the foregoing acting for the Administrative Agent (or any
such sub-agent) or such L/C Issuer in connection with such capacity. The obligations of the
Lenders under this subsection (c) are subject to the provisions of Section 2.12(d).



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable Law, no Borrower shall assert, and hereby waives, any claim against any Indemnitee, on
any theory of



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liability, for special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated
hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee
referred to in subsection (b) above shall be liable for any damages arising from the use by
unintended recipients of any information or other materials distributed to such unintended
recipients by such Indemnitee through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby other than for direct or actual damages resulting from
the gross negligence or willful misconduct of such Indemnitee as determined by a final and
nonappealable judgment of a court of competent jurisdiction.




     (e) Payments. All amounts due under this Section shall be payable not later than ten
Business Days after demand therefor.



     (f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments
and the repayment, satisfaction or discharge of all the other Obligations.



     (g) Foreign Borrowers. Notwithstanding anything to the contrary in this Agreement or
any other Loan Document, the obligations of the Foreign Borrowers with respect to the
indemnification and expense reimbursement obligations set forth in this Section shall, to the
extent reasonably ascertainable, be limited to losses, claims, damages, liabilities, costs and
expenses arising out of or relating to the obligations of Foreign Borrowers and the Foreign
Guarantors under this Agreement and the other Loan Documents (including the enforcement thereof)
and the Foreign Borrowers’ use or proposed use of the proceeds of any Loan made to a Foreign
Borrower or Letter of Credit issued for the account of a Foreign Borrower or Foreign Guarantor.



     11.05 Payments Set Aside. To the extent that any payment by or on behalf of any Borrower is
made to the Administrative Agent, any L/C Issuer or any Lender, or the Administrative Agent, any
L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such
setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the Administrative
Agent, such L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a)
to the extent of such recovery, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had not been made or
such setoff had not occurred, and (b) each Lender and each L/C Issuer severally agrees to pay to
the Administrative Agent upon demand its applicable share (without duplication) of any amount so
recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such
demand to the date such payment is made at a rate per annum equal to the applicable Overnight Rate
from time to time in effect, in the applicable currency of such recovery or payment. The
obligations of the Lenders and the L/C Issuers under clause (b) of the preceding sentence shall
survive the payment in full of the Obligations and the termination of this Agreement.



     11.06 Successors and Assigns.



     (a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that (other than as provided in Section 7.04) no Borrower
may assign or otherwise transfer any of its rights or obligations hereunder without the prior
written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with
the provisions of subsection (b) of this Section, (ii) by way of



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participation in accordance with the provisions of subsection (d) of this Section, or (iii) by
way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of
this Section (and, subject to the last sentence of subsection (b) below, any other attempted
assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the extent provided in
subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the L/C Issuers and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.




     (b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans (including for purposes of this subsection (b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to it);
provided that any such assignment shall be subject to the following conditions:




     (i) Minimum Amounts.




     (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in the case
of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and




     (B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be less
than $5,000,000 (except in the case of an assignment of any Incremental Term Loan,
which shall be in a minimum amount determined by the Administrative Agent, the
Company and the Lenders agreeing to provide such Incremental Term Loan in accordance
with Section 2.16) unless each of the Administrative Agent, the Swing Line
Lender, each L/C Issuer and, so long as no Event of Default has occurred and is
continuing, the Company otherwise consents (each such consent not to be unreasonably
withheld or delayed); provided, however, that concurrent assignments
to members of an Assignee Group and concurrent assignments from members of an
Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members
of its Assignee Group) will be treated as a single assignment for purposes of
determining whether such minimum amount has been met.




     (ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned, except that this
clause (ii) shall not (A) apply to the Swing Line Lender’s rights and obligations in respect
of Swing Line Loans or (B) prohibit any Lender from assigning all or portion of its rights
under each Incremental Term Loan and the revolving credit facility established pursuant to
Section 2.01 on a non-pro rata basis;




     (iii) Required Consents. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and, in addition:




     (A) the consent of the Company (such consent not to be unreasonably



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withheld or delayed) shall be required unless (1) an Event of Default has
occurred and is continuing at the time of such assignment or (2) such assignment is
to a Lender, an Affiliate of a Lender or an Approved Fund; provided that the
Company shall be deemed to have consented to any such assignment unless it shall
object thereto by written notice to the Administrative Agent within five (5)
Business Days after having received notice thereof;




     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld) shall be required if such assignment is to a Person that is
not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such
Lender;




     (C) the consent of each L/C Issuer (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment that increases the
obligation of the assignee to participate in exposure under one or more Letters of
Credit (whether or not then outstanding); and




     (D) the consent of the Swing Line Lender (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment (other than any assignment
of an Incremental Term Loan).




     (iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of $3,500; provided that the
Administrative Agent may, in its sole discretion, elect to waive such processing and
recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire.




     (v) No Assignment to Certain Persons. No such assignment shall be made (A) to
the Company or any of the Company’s Affiliates or Subsidiaries, or (B) to any Defaulting
Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder,
would constitute any of the foregoing Persons described in this clause (B), or (C) to a
natural person.




     (vi) Certain Additional Payments. In connection with any assignment of rights
and obligations of any Defaulting Lender hereunder, no such assignment shall be effective
unless and until, in addition to the other conditions thereto set forth herein, the parties
to the assignment shall make such additional payments to the Administrative Agent in an
aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright
payment, purchases by the assignee of participations or subparticipations, or other
compensating actions, including funding, with the consent of the Company and the
Administrative Agent, the applicable pro rata share of Loans previously requested but not
funded by the Defaulting Lender, to each of which the applicable assignee and assignor
hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then
owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and
interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share
of all Loans and participations in Letters of Credit and Swing Line Loans in accordance with
its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment
of rights and obligations of any Defaulting Lender hereunder shall become effective under
applicable Law without compliance with the provisions of this paragraph, then the assignee
of such interest shall be deemed to be a Defaulting Lender for all purposes of this
Agreement until such compliance occurs.




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     (vii) No Assignment Resulting in Additional Indemnified Taxes or Other
Taxes. No assignment shall be made to any Person (other than an assignment at the
request of the Company pursuant to Section 11.13) that would result in the
imposition of Indemnified Taxes or Other Taxes in excess of the Indemnified Taxes or Other
Taxes that would be imposed in the absence of such assignment unless the Company consents to
such assignment or the proposed assignee agrees with the Company to treat such excess
Indemnified Taxes and Other Taxes as Excluded Taxes; provided that this clause (vii)
shall not apply after the occurrence and during the continuation of an Event of Default.




     (viii) Alternative Currencies. Unless at the time of any assignment an Event
of Default shall have occurred and be continuing, no such assignment shall be made to any
Person that cannot make Loans to the Borrowers in all Alternative Currencies then available
to the Borrowers hereunder unless the Company consents to such assignment.



Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party to this Agreement 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 3.01, 3.04, 3.05, and 11.04
with respect to facts and circumstances occurring prior to the effective date of such assignment.
Upon request, each Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this subsection 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 subsection (d) of
this Section.




     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrowers (and such agency being solely for tax purposes), shall maintain at the Administrative
Agent’s Office 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
amounts of (and stated interest on) 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, and the Borrowers, the Administrative Agent 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. In addition, the
Administrative Agent shall maintain on the Register information regarding the designation, and
revocation of designation, of any Lender as a Defaulting Lender. 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.



     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
any Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person, a Defaulting Lender or the Company or any of the Company’s Affiliates or Subsidiaries)
(each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations
under this Agreement (including all or a portion of its Commitment and/or the Loans (including such
Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided
that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Borrowers, the
Administrative Agent, the Lenders and the L/C Issuers shall continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations under this Agreement.



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          Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in the first proviso to
Section 11.01 that affects such Participant. Subject to subsection (e) of this Section,
each Borrower agrees that each Participant shall be entitled to the benefits of Sections
3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 11.08 as though it
were a Lender, provided such Participant agrees to be subject to Section 2.13 as
though it were a Lender. Each Lender that sells a participation shall, acting solely for this
purpose as an agent of the Borrowers, maintain a register on which it enters the name and address
of each Participant and the principal amounts (and stated interest) of each Participant’s interest
in the Loans or other obligations under the Loan Documents (the “Participant Register”);
provided that no Lender shall have any obligation to disclose all or any portion of the
Participant Register to any Person (including the identity of any Participant or any information
relating to a Participant’s interest in any commitments, loans, letters of credit or its other
obligations under any Loan Document) except to the extent that such disclosure is necessary to
establish that such commitment, loan, letter of credit or other obligation is in registered form
under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the
Participant Register shall be conclusive absent manifest error, and such Lender shall treat each
Person whose name is recorded in the Participant Register as the owner of such participation for
all purposes of this Agreement notwithstanding any notice to the contrary.



     (e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 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 Company’s prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to
the benefits of Section 3.01 unless the Company is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrowers, to comply with
Section 3.01(e) as though it were a Lender.



     (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note(s), if any) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.



     11.07 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent,
the Lenders and the L/C Issuers agrees to maintain the confidentiality of the Information (as
defined below), in accordance with its customary procedures, except that Information may be
disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners, directors,
officers, employees, agents, trustees, advisors and representatives (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the extent requested by
any regulatory authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to the extent required
by applicable laws or regulations or by any subpoena or similar legal process; provided
that the Administrative Agent, such Lender or such L/C Issuer, as the case
may be, agrees that it will notify the Company as soon as practicable under the circumstances
in the event of any such disclosure by such Person (other than any disclosure at the request of a
regulatory authority or in connection with a routine audit or review) unless such notification is
prohibited by Law, (d) to any other party hereto, (e) in connection with the exercise of any
remedies hereunder or under any other Loan



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Document or any action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f)
subject to an agreement containing provisions at least as restrictive as those of this Section, to
(i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or any Eligible Assignee invited to be a Lender pursuant
to Section 2.16(c) or (ii) any actual or prospective counterparty (or its advisors) to any
swap or derivative transaction relating to a Borrower and its obligations, (g) with the consent of
the Company or (h) to the extent such Information (x) becomes publicly available other than as a
result of a breach of this Section or (y) becomes available to the Administrative Agent, any
Lender, any L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a
source other than the Company and which such disclosure is not known by the Administrative Agent,
such Lender or such L/C Issuer, as the case may be, to be made in violation of a confidentiality
restriction in respect thereof in favor of the Company or any of its Affiliates.




     For purposes of this Section, “Information” means all information received from the
Company or any Subsidiary relating to the Company or any Subsidiary or any of their respective
businesses, other than any such information that is available to the Administrative Agent, any
Lender or any L/C Issuer on a nonconfidential basis prior to disclosure by the Company or any
Subsidiary. Any Person required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.



     Each of the Administrative Agent, the Lenders and the L/C Issuers acknowledges that (a) the
Information may include material non-public information concerning the Company or a Subsidiary, as
the case may be, (b) it has developed compliance procedures regarding the use of material
non-public information and (c) it will handle such material non-public information in accordance
with applicable Law, including United States Federal and state securities Laws.



     11.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender, each L/C Issuer and each of their respective Affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by applicable Law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final, in whatever currency)
at any time held and other obligations (in whatever currency) at any time owing by such Lender,
such L/C Issuer or any such Affiliate to or for the credit or the account of any Borrower against
any and all of the obligations of such Borrower now or hereafter existing under this Agreement or
any other Loan Document to such Lender or such L/C Issuer, irrespective of whether or not such
Lender or such L/C Issuer shall have made any demand under this Agreement or any other Loan
Document and although such obligations of such Borrower may be contingent or unmatured or are owed
to a branch or office of such Lender or such L/C Issuer different from the branch or office holding
such deposit or obligated on such indebtedness; provided that in the event that any
Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid
over immediately to the Administrative Agent for further application in accordance with the
provisions of Section 2.18 and, pending such payment, shall be segregated by such
Defaulting Lender from its other funds and deemed held in trust for the benefit of the
Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the
Administrative Agent a statement describing in reasonable detail the Obligations owing to such
Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, each
L/C Issuer and their respective Affiliates under this Section are in addition to other rights and
remedies (including other rights of setoff) that such Lender, such L/C Issuer or their respective
Affiliates may have. Each Lender and each L/C Issuer agrees
to notify the Company and the Administrative Agent promptly after any such setoff and
application, provided that the failure to give such notice shall not affect the validity of
such setoff and application.



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     11.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If
the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Company. In determining whether the interest contracted for,
charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person
may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the
total amount of interest throughout the contemplated term of the Obligations hereunder.



     11.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging
means shall be effective as delivery of a manually executed counterpart of this Agreement.



     11.11 Survival of Representations and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and delivery hereof and thereof.
Such representations and warranties have been or will be relied upon by the Administrative Agent
and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or
on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice
or knowledge of any Default at the time of any Credit Extension, and shall continue in full force
and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied
or any Letter of Credit shall remain outstanding.



     11.12 Severability. If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction. Without limiting the foregoing provisions of this
Section 11.12, if and to the extent that the enforceability of any provisions in this
Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in
good faith by the Administrative Agent, any L/C Issuer or the Swing Line Lender, as applicable,
then such provisions shall be deemed to be in effect only to the extent not so limited.



     11.13 Replacement of Lenders. If (a) any Lender requests compensation under Section
3.04, (b) any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority
for the account of any Lender pursuant to Section 3.01, (c) any Lender is a Defaulting
Lender, (d) any Lender does not consent to a proposed amendment, waiver, consent or release with
respect to any Loan Document that has received the consent of the Required Lenders but requires the
consent of such Lender,



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(e) any Lender gives a notice provided for under Section 3.02, (f)
any Lender (other than the Swing Line Lender) does not consent to (or is deemed to have refused) a
request by the Company under Section 1.06 that Eurocurrency Rate Loans be made and/or
Letters of Credit issued in a currency other than those specifically listed in the definition of
“Alternative Currency” or (g) any Lender does not agree to a request by the Company to approve a
Wholly Owned Foreign Subsidiary of the Company that is a Restricted Subsidiary as a Designated
Borrower under and in accordance with Section 2.14 if the Required Lenders have otherwise
approved such Wholly Owned Foreign Subsidiary, then, in each case, the Company may, at its sole
expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the restrictions contained
in, and consents required by, Section 11.06), all of its interests, rights and obligations
under this Agreement and the related Loan Documents to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such assignment),
provided that:




     (i) the Company shall have paid (or caused another Borrower to pay) to the Administrative
Agent the assignment fee specified in Section 11.06(b);



     (ii) such Lender shall have received payment of an amount equal to the outstanding principal
of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable
to it hereunder and under the other Loan Documents (including any amounts under Section
3.05) from the assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Company or applicable Borrower (in the case of all other amounts);



     (iii) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments thereafter;



     (iv) in the case of any assignment under a situation described in subpart (d), (f) or (g)
above, such replacement, when combined with all other replacements effectuated by this Section for
such purpose, will allow the action or event giving rise to such right of replacement to be
successfully consummated; and



     (v) such assignment does not conflict with applicable Laws.



     A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to
require such assignment and delegation cease to apply. Subject to satisfaction of the conditions
to replace a Lender set forth in this Section 11.13, any Lender that is required to make an
assignment pursuant to this Section 11.13 agrees to execute and deliver, as promptly as
practicable and at the sole expense of the Company, an Assignment and Assumption to effectuate such
assignment.



     11.14 Governing Law; Jurisdiction; Etc.



     (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.



     (b) SUBMISSION TO JURISDICTION. EACH BORROWER IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK SITTING IN THE CITY OF
NEW YORK, BOROUGH OF MANHATTAN AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN
DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS



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AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT
OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL
CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK
STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF
THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY
RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY BORROWER OR
ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.




     (c) WAIVER OF VENUE. EACH BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF
AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.



     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



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



     11.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), each Borrower acknowledges and agrees, and
acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services
regarding this Agreement provided by the Administrative Agent and the Arrangers, are arm’s-length
commercial transactions between such Borrower and its Affiliates, on the one hand, and the
Administrative Agent and
the Arrangers, on the other hand, (B) such Borrower has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate, and (C) such Borrower is
capable of evaluating, and understands and accepts, the terms, risks and conditions of the
transactions contemplated hereby and



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by the other Loan Documents; (ii) (A) each of the
Administrative Agent and the Arrangers is and has been acting solely as a principal and, except as
expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting
as an advisor, agent or fiduciary for such Borrower or any of its Affiliates, or any other Person
and (B) neither the Administrative Agent nor any Arranger has any obligation to such Borrower or
any of its Affiliates with respect to the transactions contemplated hereby except those obligations
expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent and
the Arrangers and their respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of such Borrower and its Affiliates, and neither the
Administrative Agent nor any Arranger has any obligation to disclose any of such interests to the
Borrower or its Affiliates. To the fullest extent permitted by law, each of the Borrowers hereby
waives and releases any claims that it may have against the Administrative Agent and the Arrangers
with respect to any breach or alleged breach of agency or fiduciary duty in connection with any
aspect of any transaction contemplated hereby.




     11.17 Electronic Execution of Assignments and Certain Other Documents. The words “execution,”
“signed,” “signature,” and words of like import in any Assignment and Assumption or in any
amendment or other modification hereof (including waivers and consents) shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.



     11.18 USA PATRIOT Act. Each Lender that is subject to the Act (as hereinafter defined) and
the Administrative Agent (for itself and not on behalf of any 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 “Act”), it is required to obtain, verify and record information
that identifies the Borrowers, which information includes the name and address of each Borrower and
other information that will allow such Lender or the Administrative Agent, as applicable, to
identify such Borrower in accordance with the Act. Each Borrower shall, promptly following a
request by the Administrative Agent or any Lender, provide all documentation and other information
that the Administrative Agent or such Lender requests in order to comply with its ongoing
obligations under applicable “know your customer” and anti-money laundering rules and regulations,
including the Act.



     11.19 Judgment Currency. If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder or any other Loan Document in one currency into another
currency, the rate of exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the first currency with such other currency on
the Business Day preceding that on which final judgment is given. The obligation of each Borrower
in respect of any such sum due from it to the Administrative Agent or any Lender hereunder or under
the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment
Currency”) other than that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent
that on the Business Day following receipt by the Administrative Agent or such Lender, as the case
may be, of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent or such
Lender, as the case may be, may in accordance with normal banking procedures 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 or any Lender from any Borrower in the Agreement Currency, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or
such Lender, as the case may be, against such loss. If the amount of the Agreement Currency so
purchased is



129









 





greater than the sum originally due to the Administrative Agent or any Lender in such
currency, the Administrative Agent or such Lender, as the case may be, agrees to return the amount
of any excess to such Borrower (or to any other Person who may be entitled thereto under applicable
Law).




     11.20 Release and Reinstatement of Collateral.



     (a) Notwithstanding anything to the contrary contained in this Agreement, any Loan Document or
any other document executed in connection herewith, if at any time (including after a Collateral
Reinstatement Event shall have previously occurred) a Collateral Release Event shall have occurred
and be continuing, so long as any Permitted Pari Passu Indebtedness provides for such a release
(and the Administrative Agent is reasonably satisfied that such release is occurring substantially
simultaneously therewith) then all Collateral (other than Cash Collateral) and the Security
Instruments (other than Security Instruments entered into in connection with Cash Collateral) shall
be released automatically and terminated without any further action. In connection with the
foregoing, the Administrative Agent shall, at the Company’s sole expense and at the Company’s
request, promptly execute and file in the appropriate location and deliver to the Company such
termination and full or partial release statements or confirmation thereof, as applicable, and do
such other things as are reasonably necessary to release the Liens to be released pursuant hereto
promptly upon the effectiveness of any such release.



     (b) Notwithstanding clause (a) above, if a Collateral Reinstatement Event shall have occurred,
all Collateral and Security Instruments shall, at the Company’s sole cost and expense, be
reinstated and all actions reasonably necessary, or reasonably requested by the Administrative
Agent, to provide to the Administrative Agent for the benefit of the Secured Parties valid,
perfected, first priority security interests (subject to Liens permitted under Section
7.01) in the Collateral (including without limitation the delivery of documentation and taking
of actions of the type described in Sections 6.14 and 6.15) shall be taken within
30 days of such event, which 30 day period may be extended by the Administrative Agent in its sole
discretion.



     11.21 Limitation on Obligations of Foreign Obligors. Notwithstanding anything to the contrary
in this Agreement or any other Loan Document,



     (a) no Foreign Obligor shall Guarantee or provide Collateral, or be deemed to have Guaranteed
or provided Collateral, supporting or securing any Obligations other than Foreign Obligations; and



     (b) the payment undertaking of any Loan Party incorporated under the laws of the Grand Duchy
of Luxembourg (each such Loan Party, a “Luxembourg Party”) for the obligations of any other
obligor which is not a Subsidiary of that Luxembourg Party shall be limited at any time, to an
aggregate amount not exceeding ninety-five percent (95%) of the greater of:




     (i) the Luxembourg Party’s own funds (“capitaux propres”) and the debt owed by such
Luxembourg Party to any of its direct or indirect shareholders, as determined by Article 34
of the Luxembourg law of 19 December 2002 on the register of commerce and companies,
accounting and companies annual accounts, as amended, as of the Closing Date; and




     (ii) the Luxembourg Party’s own funds (“capitaux propres”) and the debt owed by such
Luxembourg Party to any of its direct or indirect shareholders, as determined by Article 34
of the Luxembourg law of 19 December 2002 on the register of commerce and companies,
accounting and companies annual accounts, as amended, as at the date the guarantee is
called.



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The above limitation shall not apply to any amounts borrowed under any Credit Extension and in each
case made available, in any form whatsoever, to such Luxembourg Party or any of its Subsidiaries.




     (c) the total liability of any Loan Party incorporated or established in Belgium (a
“Belgian Loan Party”) for the obligations of any other obligor under the Loan Documents,
shall at all times be limited to an aggregate amount (without double counting) not exceeding the
higher of:




     (i) the sum of:




     (A) the aggregate of all principal amounts borrowed by such Belgian Loan Party
(or its direct or indirect Subsidiaries) under any intra-group arrangement
(regardless of the form thereof, including through the subscription of debt
instrument); plus




     (B) seventy percent (70%) of such Belgian Loan Party’s own funds (eigen
vermogen/capitaux propres) as referred to in section 88 of the Belgian Royal Decree
of 30 January 2001 implementing the Belgian Companies Code, at the time a demand for
payment under this Agreement is made; and




     (ii) EUR 50,000,000.



The result of the calculation as described above shall in relation to any relevant Belgian Loan
Party be referred to as the “Guaranteed Belgian Amount”. For the avoidance of doubt, no
limitation shall apply to the liability of any Belgian Loan Party for any amounts owed by it or by
its direct or indirect Subsidiaries under the Loan Documents and the Belgian Loan Party shall be
liable for such amounts in full. Each Belgian Loan Party shall provide the Administrative Agent
with an update on the relevant Guaranteed Belgian Amount upon the request of the Administrative
Agent, with such information as the Administrative Agent may reasonably require, it being
understood that the own funds (eigen vermogen/capitaux propres) as specified under Section
11.21(c)(i)(B) above may be derived from the latest audited financial statements of the
respective Belgian Loan Party.




     11.22 Each Lender a PMP. Each Lender (including any Person becoming a Lender after the
Closing Date pursuant to Section 2.16 or 11.06, or otherwise) represents that it is
a PMP and that it is aware that a Borrower organized under the laws of the Netherlands may be in
breach of Dutch law and regulations if such representation is untrue.



     11.23 Release of Guaranties and Collateral. Notwithstanding anything to the contrary
contained in this Agreement, and without limitation of Section 11.20, each Secured Party
that is a party hereto hereby agrees that:



     (a) upon termination of the Aggregate Commitments and payment in full of all Obligations
(other than (A) contingent indemnification obligations as to which no claim has been asserted and
(B) obligations and liabilities under Secured Cash Management Agreements and Secured Hedge
Agreements either (x) as to which arrangements satisfactory to the applicable Cash Management Bank
or Hedge Bank shall have been made or (y) notice has not been received by the Administrative Agent
from the applicable Cash Management Bank or Hedge Bank, as the case may be, that amounts are due
and payable under such Secured Cash Management Agreement or Secured Hedge Agreement, as the case
may be) and the expiration or termination of all Letters of Credit (other than Extended Letters of
Credit and any other Letter of Credit the Outstanding Amount of which has been Cash Collateralized
or back-stopped by a
letter of credit or other credit support in form and substance reasonably satisfactory to the
Administrative Agent and the applicable L/C Issuer), (i) any Lien on any Collateral (including Cash
Collateral, except to the extent intended to remain in place with respect to Extended Letters of
Credit or other Letters of Credit



131









 





by agreement between the Company and the applicable L/C Issuer)
shall be released and (ii) each Guarantor shall be released from its obligations under the
applicable Guaranty;




     (b) any Lien on any asset constituting Collateral shall be released in the event that such
asset is Disposed of as part of or in connection with any Disposition permitted hereunder or under
any other Loan Document; and



     (c) any Guarantor shall be released from its obligations under the applicable Guaranty if such
Person ceases to be a Restricted Subsidiary as a result of a transaction or designation permitted
hereunder, and any Lien on any asset of, or Equity Interests issued by, such Guarantor constituting
Collateral shall be released as well.



In connection with the foregoing, and subject to Section 9.10 (including the right of the
Administrative Agent to obtain confirmation thereof from the Required Lenders), the Administrative
Agent shall, at the Company’s sole expense and at the Company’s request, (x) promptly execute and
file in the appropriate location and deliver to the Company such termination and full or partial
release statements or confirmations thereof, as applicable, and (y) do such other things as are
reasonably necessary to release the Liens and Guarantees to be released pursuant hereto promptly
upon the effectiveness of any such release.




     11.24 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.



[Signature Pages Follow]





132












 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as
of the date first above written.



	 	 	 	 	 
	 	



MOHAWK INDUSTRIES, INC.,
 as Company and a
Borrower

 	 
	 	By:  	/s/ Frank H. Boykin
 	 
	 	 	Name:  	Frank H. Boykin 	 
	 	 	Title:  	Chief Financial Officer 	 
	 





1









 





	 	 	 	 	 
	 	



MOHAWK FOREIGN HOLDINGS,

S.À R.L., as a Foreign Borrower

 	 
	 	By:  	/s/ Edward R. Schleper
 	 
	 	 	Name:  	Edward R. Schleper  	 
	 	 	Title:  	Class A Manager 	 
	 
	 	MOHAWK INTERNATIONAL HOLDINGS, S.À R.L., as a
Foreign Borrower

 	 
	 	By:  	/s/ Edward R. Schleper
 	 
	 	 	Name:  	Edward R. Schleper  	 
	 	 	Title:  	Class A Manager 	 
	 
	 	MOHAWK UNILIN INTERNATIONAL B.V., 
as a Foreign
Borrower

 	 
	 	By:  	

/s/ Edward R. Schleper
 	 
	 	 	Name:  	Edward R. Schleper  	 
	 	 	Title:  	Attorney 	 
	 
	 	UNILIN B.V.B.A., as a Foreign Borrower


 	 
	 	By:  	/s/ Edward R. Schleper
 	 
	 	 	Name:  	Edward R. Schleper  	 
	 	 	Title:  	Attorney 	 



2









 






	 	 	 	 	 



	 	 	 	 	 
	 	



BANK OF AMERICA, N.A., as

Administrative Agent

 	 
	 	By:  	/s/ Ronaldo Naval
 	 
	 	 	Name:  	Ronaldo Naval  	 
	 	 	Title:  	Vice President 	 



3









 






	 	 	 	 	 



	 	 	 	 	 
	 	



BANK OF AMERICA, N.A., 
as a Lender, L/C Issuer
and Swing Line Lender

 	 
	 	By:  	/s/ David McCauley
 	 
	 	 	Name:  	David McCauley  	 
	 	 	Title:  	Director
  	 
	 



4









 





	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,
 as a Lender and L/C
Issuer

 	 
	 	By:  	

/s/ John A. Horst
 	 
	 	 	Name:  	John A. Horst  	 
	 	 	Title:  	Credit Executive 	 



5









 






	 	 	 	 	 



	 	 	 	 	 
	 	



SUNTRUST BANK, 
as a Lender

 	 
	 	By:  	/s/ Carle Felton
 	 
	 	 	Name:  	Carle Felton  	 
	 	 	Title:  	Director
  	 
	 



6









 





	 	 	 	 	 
	 	WELLS FARGO BANK NATIONAL ASSOCIATION,
 as a
Lender and L/C Issuer

 	 
	 	By:  	/s/ Kathleen H. Reedy
 	 
	 	 	Name:  	Kathleen H. Reedy  	 
	 	 	Title:  	Managing Director 	 



7









 






	 	 	 	 	 



	 	 	 	 	 
	 	



BARCLAYS BANK PLC, 
as a Lender

 	 
	 	By:  	/s/ Diane Rolfe
 	 
	 	 	Name:  	Diane Rolfe  	 
	 	 	Title:  	Director 	 



8









 






	 	 	 	 	 



	 	 	 	 	 
	 	



ING Belgium SA/NV, as a Lender and L/C issuer



 	 
	 	By:  	/s/ Luc Houman
 	 
	 	 	Name:  	Luc Houman  	 
	 	 	Title:  	Structured Finance Officer 	 
	 
	 	 	 
	 	By:  	                                                     /s/ Markey Johan
 	 
	 	 	Name:  	Markey Johan  	 
	 	 	Title:  	Director
  	 
	 




9









 




	 	 	 	 	 
	 	MIZUHO CORPORATE BANK, LTD., 
as a Lender

 	 
	 	By:  	/s/ David Lim
 	 
	 	 	Name:  	David Lim  	 
	 	 	Title:  	Authorized Signatory 	 



10









 






	 	 	 	 	 



	 	 	 	 	 
	 	



REGIONS BANK, as a Lender

 	 
	 	By:  	/s/ Michael A. Mezza
 	 
	 	 	Name:  	Michael A. Mezza  	 
	 	 	Title:  	SVP 	 



11









 






	 	 	 	 	 



	 	 	 	 	 
	 	



U.S. BANK NATIONAL ASSOCIATION, 
as a Lender

 	 
	 	By:  	/s/ Michael P. Dickman
 	 
	 	 	Name:  	Michael P. Dickman  	 
	 	 	Title:  	Vice President 	 



12









 






	 	 	 	 	 



	 	 	 	 	 
	 	



THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., 
as a
Lender

 	 
	 	By:  	/s/ Ravneet Mumick
 	 
	 	 	Name:  	Ravneet Mumick  	 
	 	 	Title:  	Director 	 



13









 






	 	 	 	 	 



	 	 	 	 	 
	 	



BRANCH BANKING AND TRUST CORPORATION, 
as a Lender

 	 
	 	By:  	/s/ Robert T. Barnaby
 	 
	 	 	Name:  	Robert T. Barnaby  	 
	 	 	Title:  	Vice President 	 



14









 






	 	 	 	 	 



	 	 	 	 	 
	 	



SOVEREIGN BANK, 
as a Lender

 	 
	 	By:  	/s/ Chris D. Wolfslayer
 	 
	 	 	Name:  	Chris D. Wolfslayer  	 
	 	 	Title:  	Senior Vice President 	 



15









 






	 	 	 	 	 



	 	 	 	 	 
	 	



SYNOVUS BANK, as a Lender

 	 
	 	By:  	/s/ W. Benjamin Shaw
 	 
	 	 	Name:  	W. Benjamin Shaw  	 
	 	 	Title:  	Commercial Lender 	 



16









 






	 	 	 	 	 



	 	 	 	 	 
	 	



BANC OF AMERICA SECURITIES LIMITED, in its

capacity as an Applicable Designee of Bank of

America, N.A. in its role as a Lender and as

the Swing Line Lender for the purposes of

providing Foreign Swing Line Loans

 	 
	 	By:  	/s/ Johanna Hartikainen
 	 
	 	 	Name:  	Johanna Hartikainen  	 
	 	 	Title:  	Director 	 
	 




17











 





SCHEDULE 1.01(a)




APPLICABLE DESIGNEE




	 	 	 
	Lender of Record	 	Applicable Designee
	Bank of America, N.A.

	 	Banc of America Securities Limited
	 

	 	Address:
	 

	 	2 King Edward Street,

London, EC1A 1HQ

United Kingdom

Attention: Adi Khambata/Dovir Miah, Loan Service
	 

	 	Email Address:
	 

	 	emealoanservicebromley@bankofamerica.com
	 

	 	Telephone Numbers:
	 

	 	+44 208 695 3389; +44 208 313 2503
	 

	 	Fax Numbers:
	 

	 	+44 208 313 2149
	 
	 	 
	JPMorgan Chase Bank, N.A.

	 	The JP Morgan Chase Bank, London Branch
	 

	 	Address:
	 

	 	European Loan Operations

C/O J.P. Morgan Chase London

4th Floor Prestige Knowledge Par,

Near Marathalli Junction, Outer Ring Road,

Kadabeesanahalli, Vathur Hobli, Bangalore, 560087
	 

	 	Email Address:
	 

	 	european.loan.operations@jpmchase.com
	 

	 	Telephone Number:
	 

	 	91 80 6676 2333
	 

	 	Fax Numbers:
	 

	 	44 (0)20 7492 3297; 44 (0)20 7492 3298
	 
	 	 
	JPMorgan Chase Bank, N.A.

	 	J.P. Morgan Europe Limited
	 

	 	Address:
	 

	 	JPMorgan Chase,

European Loan Operations,

4th Floor, Prestige Technology Park,

Near Marathahalli Junction, Sarjapur Outer Ring

Road,

Kadabeesanahalli, Vathur Hobli, Bangalore, 560087
	 

	 	Email Address:
	 

	 	european.loan.operations@jpmchase.com
	 

	 	Telephone Number:
	 

	 	91 80 6676 2333
	 

	 	Fax Numbers:
	 

	 	44 (0)20 7492 3297; 44 (0)20 7492 3298






 









 






SCHEDULE 1.01(b)




FOREIGN BORROWER SUBLIMITS




	 	 	 	 	 
	Foreign Borrower	 	Sublimit	 
	Mohawk Foreign Holdings, S.à r.l.
	 	$	700,000,000	 
	Mohawk International Holdings, S.à r.l.
	 	$	700,000,000	 
	Mohawk Unilin International B.V.
	 	$	700,000,000	 
	Unilin B.V.B.A.
	 	$	700,000,000	 






- 2 -









 






SCHEDULE 1.01(c)




MANDATORY COST FORMULAE





	1.	 	The Mandatory Cost (to the extent applicable) 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 Mandatory 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. The
Administrative Agent will, at the request of the Company or any Lender, deliver to the Company
or such Lender as the case may be, a statement setting forth the calculation of any Mandatory
Cost.
	 
	3.	 	The Additional Cost Rate for any Lender lending from a Lending Office in a Participating
Member State will be the percentage notified by that Lender to the Administrative Agent. This
percentage will be certified by such Lender in its notice to the Administrative Agent to be
its reasonable determination of the cost (expressed as a percentage of such Lender’s
participation in all Loans made from such Lending Office) of complying with the minimum
reserve requirements of the European Central Bank in respect of Loans made from that Lending
Office.
	 
	4.	 	The Additional Cost Rate for any Lender lending from a Lending Office in the United Kingdom
will be calculated by the Administrative Agent as follows:






	 	(a)	 	in relation to any Loan in Sterling:





	 	 	 	 	 

	 

	 	AB+C(B-D)+E x 0.01
 

	 	per cent per annum 
	 

	 	100 — (A+C)	 	 







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





	 	 	 	 	 	 	 

	 

	 	 	E x 0.01

 
	 	 	per cent per annum 
	 

	 	 	300	 	 	 






- 3 -









 





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, the
Mandatory Cost and any interest charged on overdue amounts pursuant to
the first sentence of Section 2.08(b) and, in the case of interest
(other than on overdue amounts) charged at the Default Rate, without
counting any increase in interest rate effected by the charging of the
Default Rate) payable for the relevant Interest Period of such 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 Lenders to
the Administrative Agent pursuant to paragraph 7 below and expressed
in pounds per £1,000,000.






	5.	 	For the purposes of this Schedule:






	 	(a)	 	“Eligible Liabilities” and “Special Deposits” have the meanings given to them
from time to time under or pursuant to the Bank of England Act 1998 or (as may be
appropriate) by the Bank of England;
	 
	 	(b)	 	“Fees Rules” means the rules on periodic fees contained in the rules on
periodic fees contained in the Financial Services Authority Fees 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); and




- 4 -









 






	 	(d)	 	“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% 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 or the Company, each Lender with a Lending Office in
the United Kingdom or a Participating Member State shall, as soon as practicable after
publication by the Financial Services Authority, supply to the Administrative Agent and the
Company, the rate of charge payable by such Lender 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 such Lender as being the average of the Fee Tariffs
applicable to such Lender for that financial year) and expressed in pounds per £1,000,000 of
the Tariff Base of such Lender.
	 
	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 in writing on or prior to the date on which it becomes
a Lender:






	 	(a)	 	the jurisdiction of the Lending Office out of which it is making available
its participation in the relevant Loan; and
	 
	 	(b)	 	any other information that the Administrative Agent may reasonably require
for such purpose.




Each Lender shall promptly notify the Administrative Agent in writing 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 Lender 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 lending office in the same
jurisdiction as its Lending 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 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
Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each Lender based
on the information provided by each Lender pursuant to paragraphs 3, 7 and 8 above.




- 5 -









 






	12.	 	Any determination by the Administrative Agent pursuant to this Schedule in relation to a
formula, the Mandatory 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 parties hereto.
	 
	13.	 	The Administrative Agent may from time to time, after consultation with the Company and the
Lenders, determine and notify to all parties any amendments which are required to be made to
this Schedule in order to comply with any change in law, regulation or any requirements from
time to time imposed by the Bank of England, the Financial Services Authority or the European
Central Bank (or, in any case, any other authority which replaces all or any of its functions)
and any such determination shall, in the absence of manifest error, be conclusive and binding
on all parties hereto.




- 6 -









 











SCHEDULE 1.01(d)




EXISTING LETTERS OF CREDIT




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	ISSUING	 	 	 	 	 	 	 	 	 	 	 	 	 
	L/C NUMBER	 	BANK	 	 	ISSUED	 	 	EXPIRATION	 	 	BENEFICIARY	 	 	AMOUNT	 
	FOREIGN VENDORS
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SM237830W
	 	Wachovia	 	 	11/10/04	 	 	 	11/10/2011	 	 	Barclays Bank - Customs & Duties	 	$	227,272.37	 
	SM230614W
	 	Wachovia	 	 	03/26/08	 	 	 	1/31/2012	 	 	Legend Pacific	 	$	2,000,000.00	 
	SM229128
	 	Wachovia	 	 	12/10/07	 	 	 	1/31/2012	 	 	Double F Limited	 	$	250,000.00	 
	SM232852
	 	Wachovia	 	 	09/26/08	 	 	 	12/31/2011	 	 	Sun Life Assurance Co of Canada	 	$	120,000.00	 
	SM235217
	 	Wachovia	 	 	07/14/09	 	 	 	8/15/2011	 	 	Mosaic Color Building Materials	 	$	1,000,000.00	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	TOTAL	 	$	3,597,272.37	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ENVIRONMENTAL
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	P276539 / D-235523
	 	JPMorgan	 	 	02/12/98	 	 	 	2/12/2012	 	 	TNRCC	 	$	561,220.00	 
	P213553 / D-235388
	 	JPMorgan	 	 	05/31/01	 	 	 	12/23/2011	 	 	Commonwealth of Kentucky	 	$	10,000.00	 
	SM233892W
	 	Wachovia	 	 	02/10/09	 	 	 	2/10/2012	 	 	State of Tennessee	 	$	319,900.17	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	TOTAL	 	$	891,120.17	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	UTILITIES
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	S401155
	 	Wachovia	 	 	04/15/03	 	 	 	4/15/2012	 	 	City of Calhoun	 	$	415,000.00	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	TOTAL	 	$	415,000.00	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	INSURANCE PROGRAM
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SM415073C
	 	Wachovia	 	 	10/23/03	 	 	 	10/1/2011	 	 	Liberty Mutual	 	$	34,500,000.00	 
	SM408494C
	 	Wachovia	 	 	12/31/03	 	 	 	12/31/2011	 	 	Travellers Insurance	 	$	25,000.00	 
	SM233574W
	 	Wachovia	 	 	12/31/08	 	 	 	1/14/2012	 	 	Ga Self Insured	 	$	14,130,000.00	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	TOTAL	 	$	48,655,000.00	 






- 7 -









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	ISSUING	 	 	 	 	 	 	 	 	 	 	 	 	 
	L/C NUMBER	 	BANK	 	 	ISSUED	 	 	EXPIRATION	 	 	BENEFICIARY	 	 	AMOUNT	 
	IRB Letters of Credit
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	S116152
	 	Wachovia	 	 	07/05/03	 	 	 	7/5/2012	 	 	Regions Bank	 	$	6,657,340.00	 
	S116153
	 	Wachovia	 	 	06/05/03	 	 	 	6/5/2012	 	 	Regions Bank	 	$	3,181,348.78	 
	870-086228
	 	Wachovia	 	 	07/05/03	 	 	 	7/5/2012	 	 	Regions Bank	 	$	1,039,453.00	 
	870-089659
	 	Wachovia	 	 	10/05/03	 	 	 	10/5/2011	 	 	Regions Bank	 	$	1,039,453.00	 
	870-090142
	 	Wachovia	 	 	11/05/03	 	 	 	11/5/2011	 	 	Regions Bank	 	$	1,039,453.00	 
	870-111632
	 	Wachovia	 	 	08/05/03	 	 	 	8/2/2011	 	 	Regions Bank	 	$	3,222,302.00	 
	870-007339
	 	Wachovia	 	 	01/13/01	 	 	 	1/13/2012	 	 	Bank of New York	 	$	6,745,753.42	 
	S130879
	 	Wachovia	 	 	01/28/01	 	 	 	1/28/2012	 	 	First Union	 	$	30,616,438.36	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	$	53,541,541.56	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	COMMERCIAL TRADE LETTERS OF CREDIT	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	TOTAL COMMERCIAL L/C’S	 	$	0.00	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	TOTAL Letter of Credits	 	$	107,099,934.10	 






- 8 -









 






SCHEDULE 1.01(e)




L/C ISSUER SUBLIMIT




	 	 	 
	L/C Issuer	 	Sublimit
	Bank of America, N.A.
	 	$250,000,000
	JPMorgan Chase Bank, N.A.
	 	$250,000,000
	Wells Fargo Bank, National Association
	 	$75,000,000
	ING Capital LLC
	 	$15,000,000
(available only to Foreign Subsidiaries)
















 






SCHEDULE 2.01




COMMITMENTS AND APPLICABLE PERCENTAGES




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable	 
	Lender	 	Commitment	 	 	Percentage	 
	Bank of America, N.A.
	 	$	100,000,000	 	 	 	11.111111111	%
	JP Morgan Chase Bank, N.A.
	 	$	100,000,000	 	 	 	11.111111111	%
	SunTrust Bank
	 	$	100,000,000	 	 	 	11.111111111	%
	Wells Fargo Bank, National Association
	 	$	100,000,000	 	 	 	11.111111111	%
	Barclays Bank plc
	 	$	72,500,000	 	 	 	8.055555555	%
	ING Belguim SA/NV
	 	$	72,500,000	 	 	 	8.055555555	%
	Mizuho Corporate Bank, Ltd.
	 	$	72,500,000	 	 	 	8.055555555	%
	Regions Bank
	 	$	72,500,000	 	 	 	8.055555555	%
	U.S. Bank National Association
	 	$	72,500,000	 	 	 	8.055555555	%
	The Bank of Tokyo-Mitsubishi UFJ, Ltd.
	 	$	62,500,000	 	 	 	6.944444444	%
	Branch Banking and Trust Company
	 	$	25,000,000	 	 	 	2.777777779	%
	Synovus Bank
	 	$	25,000,000	 	 	 	2.777777779	%
	Sovereign Bank
	 	$	25,000,000	 	 	 	2.777777779	%
	 	 	 	 	 	 	 
	Total
	 	$	900,000,000.00	 	 	 	100.000000000	%
















 






SCHEDULE 5.11(d)




PENSION PLANS



None.

















 





SCHEDULE 5.12




SUBSIDIARIES; OTHER EQUITY INVESTMENTS




A.




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Percentage of	 	 	 	 
	 	 	 	 	 	 	Ownership Interests	 	 	 	 
	Name of Loan Party	 	 	 	 	 	of such Class and	 	Certificate Number,	 	 
	or Subsidiary	 	Name of Equity Holder	 	Class and Series	 	Series	 	if applicable	 	Classification
	


Aladdin Manufacturing 

Corporation

	 	Mohawk Carpet, LLC
	 	Common Stock


Preferred Stock
	 	 	100




100	%




%	 	 	


2	 	 	Domestic Guarantor


Material Subsidiary
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Cevotrans BV

	 	Opstalan BV
	 	Ordinary Shares
	 	 	100	%	 	 	N/A	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 

	 	Dal-Tile I, L.L.C.
	 	 	 	 	83.5	%	 	 	 	 	 	 
	 
	Dal-Italia, LLC

	 	Emilamerica, Inc.
	 	Membership Interests
	 	 	16.5	%	 	 	N/A	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Dal-Elit, LLC

	 	Dal-Tile Shared
Services, Inc.
	 	Membership Interests
	 	 	100	%	 	 	N/A	 	 	Domestic Guarantor


Material Subsidiary
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Dal-Tile Corporation

	 	Dal-Tile Group Inc.
	 	Common Stock
	 	 	100	%	 	 	2	 	 	Domestic Guarantor


Material Subsidiary
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Dal-Tile Distribution,
Inc.

	 	Dal-Tile Corporation
	 	Common Stock
	 	 	100	%	 	 	1	 	 	Domestic Guarantor


Material Subsidiary
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Dal-Tile Group Inc.

	 	Dal-Tile International
Inc.
	 	Common Stock
	 	 	100	%	 	 	3	 	 	Domestic Guarantor






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Percentage of	 	 	 	 
	 	 	 	 	 	 	Ownership Interests	 	 	 	 
	Name of Loan Party	 	 	 	 	 	of such Class and	 	Certificate Number,	 	 
	or Subsidiary	 	Name of Equity Holder	 	Class and Series	 	Series	 	if applicable	 	Classification
	Dal-Tile I, L.L.C.

	 	Dal-Tile Distribution,
Inc.
	 	Membership Interests
	 	 	100	%	 	 	N/A	 	 	Domestic Guarantor
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Dal-Tile Industrias S.
de R.L. de C.V.

	 	Dal-Tile Mexico, S.A.
de C.V.
	 	Common Stock
	 	 	100	%	 	 	N/A	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Dal-Tile International,
Inc.

	 	Mohawk Industries, Inc.
	 	Common Stock
	 	 	100	%	 	 	1	 	 	Domestic Guarantor


Material Subsidiary
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Dal-Tile Mexico, S.A.
de C.V.

	 	DTM/CM Holdings, LLC
	 	Common Stock
	 	 	100	%	 	 	N/A	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Dal-Tile of Canada, Inc.

	 	Mohawk Foreign
Holdings, 

S.à r.l.
	 	Common Stock
	 	 	100	%	 	 	1	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Dal-Tile Operaciones S.
de R.L. de C.V.

	 	Dal-Tile Mexico, S.A.
de C.V.
	 	Common Stock
	 	 	100	%	 	 	N/A	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Dal-Tile Puerto Rico,
Inc.

	 	Dal-Tile Corporation
	 	Common Stock
	 	 	100	%	 	N/A1
	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Dal-Tile Recubrimientos
S. de R.L. de C.V.

	 	Mohawk Finance

 S.a r.l.
	 	Common Stock
	 	 	100	%	 	 	N/A	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Dal-Tile Services, Inc.

	 	Dal-Tile Corporation
	 	Common Stock
	 	 	100	%	 	 	1	 	 	Domestic Guarantor








 




			
	1	 	Note: To be reissued and delivered
post-closing.




 









 










	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Percentage of	 	 	 	 
	 	 	 	 	 	 	Ownership Interests	 	 	 	 
	Name of Loan Party	 	 	 	 	 	of such Class and	 	Certificate Number,	 	 
	or Subsidiary	 	Name of Equity Holder	 	Class and Series	 	Series	 	if applicable	 	Classification
	Dal-Tile Shared
Services, Inc.

	 	Dal-Tile Distribution,
Inc.
	 	Common Stock
	 	 	100	%	 	 	1	 	 	Domestic Guarantor
	 
	DB Wholesale Carpets &
Flooring (India)
Private Ltd.

	 	Mohawk International
Holdings S.a r.l.
	 	Ordinary
	 	 	100	%	 	 	N/A	 	 	 
	 
	DT Mex Holdings, LLC

	 	DTM/CM Holdings, LLC
	 	Membership Interests
	 	 	100	%	 	 	N/A	 	 	 
	 
	DTM/CM Holdings, LLC

	 	Mohawk International
Holdings S.a r.l.
	 	Common Stock
	 	 	100	%	 	 	N/A	 	 	 
	 
	F.I.L.S. Investments

	 	Flooring Industries Ltd.
	 	Common Stock
	 	 	100	%	 	 	N/A	 	 	 
	 
	Flooring Industries,
Ltd.

	 	Mohawk International
Holdings S.a r.l.
	 	Ordinary
	 	 	100	%	 	 	N/A	 	 	Material Subsidiary


Foreign Guarantor
	 
	Horizon Europe, Inc.

	 	Aladdin Manufacturing

Corporation
	 	Common Stock
	 	 	100	%	 	 	1	 	 	 
	 
	Lees Mohawk (UK) Limited

	 	Mohawk Carpet, LLC
	 	Common Stock
	 	 	100	%	 	4, 52
	 	 
	 
	Mohawk Canada 

Corporation

	 	Mohawk Carpet, LLC
	 	Common Stock
	 	 	100	%	 	23
	 	 








 




			
	2	 	Note: To be reissued and delivered
post-closing.
	 
	3	 	Note: To be reissued and delivered
post-closing.




 









 










	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Percentage of	 	 	 	 
	 	 	 	 	 	 	Ownership Interests	 	 	 	 
	Name of Loan Party	 	 	 	 	 	of such Class and	 	Certificate Number,	 	 
	or Subsidiary	 	Name of Equity Holder	 	Class and Series	 	Series	 	if applicable	 	Classification
	Mohawk Carpet
Distribution, Inc.

	 	Aladdin Manufacturing

Corporation
	 	Common Stock
	 	 	100	%	 	 	1	 	 	Domestic Guarantor


Material Subsidiary
	 
	Mohawk Carpet
Transportation of
Georgia, LLC

	 	Mohawk Carpet
Distribution, Inc.
	 	Membership Interests
	 	 	100	%	 	 	N/A	 	 	Domestic Guarantor
	 
	Mohawk Carpet, LLC

	 	Mohawk Industries, Inc.
	 	Membership Interests
	 	 	100	%	 	 	N/A	 	 	Domestic Guarantor


Material Subsidiary
	 
	Mohawk Commercial, Inc.

	 	Mohawk Carpet, LLC
	 	Common Stock
	 	 	100	%	 	 	1	 	 	Domestic Guarantor
	 
	Mohawk ESV, Inc.

	 	Mohawk Carpet, LLC
	 	Common Stock
	 	 	100	%	 	 	1	 	 	Domestic Guarantor
	 
	Mohawk Factoring, Inc.

	 	Mohawk Carpet, LLC


World International,
Inc.
	 	Common Stock
	 	 	79.3




20.7	%



%	 	 	


 1, 4
	 	 	Domestic Guarantor


Material Subsidiary
	 
	Mohawk Finance 

S.à r.l.

	 	Mohawk International
Holdings S.a r.l.
	 	Ordinary
	 	 	100	%	 	 	N/A	 	 	 
	 
	Mohawk Foreign
Holdings, S.à r.l.

	 	Mohawk Global
Investments S.a r.l.
	 	Ordinary
	 	 	100	%	 	 	N/A	 	 	Foreign Borrower


Material Subsidiary
	 
	Mohawk Global
Investments S.à r.l.

	 	Mohawk International

Holdings (DE)

Corporation
	 	Ordinary
	 	 	100	%	 	 	N/A	 	 	Foreign Borrower


Material Subsidiary






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Percentage of	 	 	 	 
	 	 	 	 	 	 	Ownership Interests	 	 	 	 
	Name of Loan Party	 	 	 	 	 	of such Class and	 	Certificate Number,	 	 
	or Subsidiary	 	Name of Equity Holder	 	Class and Series	 	Series	 	if applicable	 	Classification
	Mohawk International
(China) Ltd.

	 	Mohawk International
Holdings S.a r.l.
	 	Ordinary
	 	 	100	%	 	 	N/A	 	 	 
	 
	Mohawk International
(Europe) S.a.r.l.

	 	Unilin Holding BVBA
	 	Common Stock
	 	 	100	%	 	 	N/A	 	 	Foreign Guarantor



Material Subsidiary
	 
	Mohawk International
(Hong Kong) Ltd.

	 	Mohawk International
Holdings S.a r.l.
	 	Common Stock
	 	 	100	%	 	 	N/A	 	 	 
	 
	Mohawk International
(India) Ltd.

	 	Mohawk International
Holdings S.a r.l.
	 	Ordinary
	 	 	100	%	 	 	N/A	 	 	 
	 
	Mohawk International
Holdings (DE) 

Corporation

	 	Mohawk Industries, Inc.
	 	Common Stock
	 	 	100	%	 	 	1	 	 	Material Subsidiary


Domestic Guarantor
	 
	Mohawk International
Holdings S.à r.l.

	 	Mohawk Foreign Holdings
S.a r.l.
	 	Common Stock
	 	 	100	%	 	 	N/A	 	 	Foreign Borrower


Material Subsidiary
	 
	Mohawk Resources, LLC

	 	Mohawk Carpet, LLC
	 	Membership Interests
	 	 	100	%	 	 	N/A	 	 	Domestic Guarantor
	 
	Mohawk Servicing, LLC

	 	Mohawk Carpet, LLC
	 	Membership Interests
	 	 	100	%	 	 	N/A	 	 	Domestic Guarantor
	 
	Mohawk Singapore 

Private Limited

	 	Mohawk International
(India) Ltd.
	 	Common Stock
	 	 	100	%	 	 	N/A	 	 	 
	 
	Mohawk Trading
(Shanghai) Co., Ltd.

	 	Mohawk International

(Hong Kong) Limited
	 	Ordinary
	 	 	100	%	 	 	N/A	 	 	 






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Percentage of	 	 	 	 
	 	 	 	 	 	 	Ownership Interests	 	 	 	 
	Name of Loan Party	 	 	 	 	 	of such Class and	 	Certificate Number,	 	 
	or Subsidiary	 	Name of Equity Holder	 	Class and Series	 	Series	 	if applicable	 	Classification
	Mohawk Unilin
International B.V.

	 	Mohawk Finance 

S.a r.l.


Mohawk International
Holdings S.a r.l.
	 	Common Stock
	 	 	10



90	%



%	 	 	N/A	 	 	Foreign Borrower
	 
	Mohawk Unilin
Luxembourg S.à r.l.

	 	Mohawk International
(Europe) S.a.r.l.
	 	Ordinary
	 	 	100	%	 	 	N/A	 	 	Material Subsidiary
	 
	Opstalan BV

	 	Unilin Beheer BV
	 	Ordinary
	 	 	100	%	 	 	N/A	 	 	 
	 
	Timber Technique 

Finance Ltd

	 	Flooring Industries Ltd.
	 	Ordinary
	 	 	100	%	 	 	N/A	 	 	 
	 
	Syarikat Malaysia Wood
Ind, Sdn. Bhd.

	 	Mohawk International

Holdings (DE)

Corporation
	 	Ordinary
	 	 	100	%	 	S00001, 804
	 	
	 
	Unilin Beheer, BV

	 	Mohawk Unilin
International B.V.
	 	Ordinary
	 	 	100	%	 	 	N/A	 	 	 
	 
	Unilin BVBA

	 	Mohawk International
Holdings S.a r.l.
	 	Common Stock
	 	 	100	%	 	 	N/A	 	 	Foreign Borrower


Material Subsidiary
	 
	Unilin Distribution, Ltd

	 	Mohawk Foreign Holdings
S.a r.l.
	 	Common Stock
	 	 	100	%	 	 	N/A	 	 	 
	 
	Unilin Flooring NC, LLC

	 	Mohawk Industries, Inc.
	 	Membership Interests
	 	 	100	%	 	 	N/A	 	 	Material Subsidiary


Domestic Guarantor








 




			
	4	 	NOTE: To be reissued and delivered
post-closing.




 









 










	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Percentage of	 	 	 	 
	 	 	 	 	 	 	Ownership Interests	 	 	 	 
	Name of Loan Party	 	 	 	 	 	of such Class and	 	Certificate Number,	 	 
	or Subsidiary	 	Name of Equity Holder	 	Class and Series	 	Series	 	if applicable	 	Classification
	Unilin GmbH

	 	Unilin BVBA
	 	Ordinary
	 	 	100	%	 	N/A	 	 
	 
	Unilin Holding BVBA

	 	Unilin BVBA
	 	Common Stock
	 	 	100	%	 	N/A
	 	Foreign Guarantor



Material Subsidiary
	 
	Unilin Holding SAS

	 	Unilin BVBA
	 	Ordinary
	 	 	100	%	 	N/A	 	 
	 
	Unilin Industries, BVBA

	 	Mohawk International
(Europe) S.a r.l.
	 	Common Stock
	 	 	100	%	 	N/A	 	 
	 
	Unilin Russia

	 	Mohawk Unilin
International B.V.
	 	Ordinary
	 	 	100	%	 	N/A	 	 
	 
	Unilin SAS

	 	Unilin Holding SAS
	 	Ordinary
	 	 	100	%	 	N/A	 	 
	 
	Unilin Systems, SAS

	 	Unilin BVBA
	 	Ordinary
	 	 	100	%	 	N/A	 	 
	 
	Unilin Systems, SUD SAS

	 	Unilin Systems, SAS
	 	Ordinary
	 	 	100	%	 	N/A	 	 
	 
	Unilin UK, Ltd.

	 	Unilin BVBA
	 	Ordinary
	 	 	100	%	 	N/A	 	 
	 
	Unilin/Multipre BV

	 	Unilin Beheer BV
	 	Ordinary
	 	 	100	%	 	N/A	 	 
	 
	Wayn-Tex LLC

	 	Aladdin Manufacturing

Corporation
	 	Membership Interests
	 	 	 100	%	 	N/A
	 	Domestic Guarantor






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Percentage of	 	 	 	 
	 	 	 	 	 	 	Ownership Interests	 	 	 	 
	Name of Loan Party	 	 	 	 	 	of such Class and	 	Certificate Number,	 	 
	or Subsidiary	 	Name of Equity Holder	 	Class and Series	 	Series	 	if applicable	 	Classification
	World International,
Inc.

	 	Mohawk Carpet, LLC
	 	Common Stock
	 	 	100	%	 	1, 25	 	 






B.





	 	1.	 	China Ceramics, Inc.: The Company indirectly owns approximately 34.18% of the
outstanding equity interests of China Ceramics, Inc. and has an option to purchase
additional equity interests of such entity.
	 
	 	2.	 	Recubrimientos Interceramic S.A. de C.V.: The Company indirectly owns
approximately 49.99% of the outstanding equity interests of Recubrimientos Interceramic
S.A. de C.V.
	 
	 	3.	 	Dal-Italia, LLC: The Company indirectly owns approximately 83.5% of the
outstanding equity interests of Dal-Italia, LLC.







 




			
	5	 	Note: To be reissued and delivered
post-closing.






 











 





SCHEDULE 5.16




IDENTIFICATION NUMBERS FOR DESIGNATED BORROWERS THAT ARE FOREIGN SUBSIDIARIES




	 	 	 	 	 
	LOAN PARTY	 	FEIN/ UNIQUE IDENTIFICATION NO.
	Mohawk Foreign Holdings, S.á r.l.

	 	 	XXXXX	 
	 
	 	 	 	 
	Mohawk International Holdings S.á r.l.

	 	 	XXXXX	 
	 

	 	 	XXXXX	 
	 
	 	 	 	 
	Mohawk Unilin International BV

	 	 	XXXXX	 
	 

	 	 	XXXXX	 
	 
	 	 	 	 
	Unilin BVBA

	 	 	XXXXX	 






 









 






SCHEDULE 6.18




POST-CLOSING MATTERS





	1.	 	First-Tier Foreign Subsidiary Stock Certificates. Within 45 days after the
Closing Date (unless extended by the Administrative Agent in its sole discretion), the
Company and any Domestic Guarantor that owns certificated Equity Interests in a First-Tier
Foreign Subsidiary required to be pledged pursuant to the Pledge Agreement shall deliver
to the Administrative Agent original stock certificates (or the equivalent thereof)
evidencing the pledged Equity Interests issued by such First-Tier Foreign Subsidiary,
together with transfer powers duly executed by the Company or the applicable Domestic
Guarantor in blank.
	 
	2.	 	Amendment to LLC Operation Agreements Within 30 days after the
Closing Date (unless extended by the Administrative Agent in its sole discretion), the
Company shall deliver to the Administrative Agent a duly authorized and executed amendment
to the operating agreement of each domestic limited liability company that is an Issuer of
Pledged Equity to incorporate a provision, in form and substance acceptable to the
Administrative Agent, that explicitly authorizes a transferee of a membership interest in
such limited liability company to be admitted as a member in all respects and to have all
rights, powers and benefits of a member of such limited liability company.
	 
	3.	 	Replacement Stock Certificates. Within 45 days after the Closing Date
(unless extended by the Administrative Agent in its sole discretion), the Company shall
deliver to the Administrative Agent (replacement stock certificates together with an
undated stock power for each certificate duly executed in blank) evidencing the Equity
Interests pledged by (i) Aladdin Manufacturing Corporation in Mohawk Carpet Distribution,
Inc; (ii) Mohawk Carpet, LLC in Mohawk Factoring, Inc.; (iii) Aladdin Manufacturing
Corporation in Horizon Europe, Inc.; (iv) Mohawk Carpet, LLC in Mohawk Commercial, Inc.;
(v) Mohawk Carpet, LLC in Mohawk ESV, Inc.; (vi) the Company in Dal-Tile International,
Inc.; (vii) Dal-Tile Corporation in Dal-Tile Distribution, Inc.; and (viii) Dal-Tile
Distribution, Inc. in Dal-Tile Shared Services, Inc.




 









 











SCHEDULE 7.01




EXISTING LIENS




	 	 	 	 	 	 	 
	Debtor	 	Secured Party or Parties	 	Description of Collateral	 	Description of Lien
	Mohawk Industries, Inc.

	 	South Carolina Jobs —
Economic Development
Authority and
Regions Bank as Trustee
	 	Accounts and contract
rights under the Loan
Agreement dated as of
4/1/1997
	 	UCC Financing Statement
#2258481 5 Filed 10/07/02
Delaware Secretary of
State
	 
	 	 	 	 	 	 
	Mohawk Industries, Inc

	 	CIT Financial USA, Inc.
	 	All computer equipment
and peripherals,
wherever located,
referenced in Loan
Agreement #007520585-152
dated June 2, 2006 and
any modifications to
Loan and all
substitutions,
additions, etc. to
Equipment now or
hereafter installed
therein and the proceeds
thereof together with
all payments, other
proceeds and payments
due and to become due
and arising from or
relating to Loan.
	 	UCC Financing Statement
#6193917 2 Filed 6/7/06
Delaware Secretary of
State
	 
	 	 	 	 	 	 
	Mohawk Industries, Inc

	 	CIT Financial USA, Inc.
	 	All computer equipment
and peripherals,
wherever located,
referenced in Loan
Agreement #007520585-157
dated June 16, 2006 and
any modifications to
Loan and all
substitutions,
additions, etc. to
Equipment, now or
hereafter installed
therein and the proceeds
thereof together with
all payments, other
proceeds and payments
due and to become due
and arising from or
relating to Loan.
	 	UCC Financing Statement
#6211150 8 Filed 6/20/06
Delaware Secretary of
State






 









 






	 	 	 	 	 	 	 
	Debtor	 	Secured Party or Parties	 	Description of Collateral	 	Description of Lien
	Mohawk Industries, Inc

	 	CIT Financial USA, Inc.
	 	All computer equipment
and peripherals,
wherever located,
referenced in Loan
Agreement #007520585-159
dated June 19, 2006 and
any modifications to
Loan and all
substitutions,
additions, etc. to
Equipment now or
hereafter installed
therein and the proceeds
thereof together with
all payments, other
proceeds and payments
due and to become due
and arising from or
relating to Loan.
	 	UCC Financing Statement
#6215315 3 Filed 6/22/06
Delaware Secretary of
State
	 
	 	 	 	 	 	 
	Mohawk Industries, Inc

	 	CIT Financial USA, Inc.
	 	All computer equipment
and peripherals,
wherever located,
referenced in Loan
Agreement #007520585-163
dated June 28, 2006 and
any modifications to
Loan and all
substitutions,
additions, etc. to
Equipment, now or
hereafter installed
therein and the proceeds
thereof together with
all payments, other
proceeds and payments
due and to become due
and arising from or
relating to Loan.
	 	UCC Financing Statement
#6231110 8 Filed 7/5/06
Delaware Secretary of
State
	 
	 	 	 	 	 	 
	Mohawk Industries, Inc

	 	Dell Equipment Funding
L.P.
	 	All computer equipment
and peripherals wherever
located referenced in
Loan Agreement
#007520585-164 dated
July 3, 2006 and any
modifications to Loan
and all substitutions,
additions, etc. to
Equipment now or
hereafter installed
therein and the proceeds
thereof together with
all payments, other
proceeds and payments
due and to become due
and arising from or
relating to Loan.
	 	UCC Financing Statement
#6236750 6 Filed 7/10/06
Delaware Secretary of
State
	 
	 	 	 	 	 	 





 









 






	 	 	 	 	 	 	 
	Debtor	 	Secured Party or Parties	 	Description of Collateral	 	Description of Lien
	Mohawk Industries, Inc

	 	Dell Equipment Funding
L.P.
	 	All computer equipment
and peripherals wherever
located referenced in
Loan Agreement
#007520585-166 dated
July 6, 2006 and any
modifications to Loan
and all substitutions,
additions, etc. to
Equipment now or
hereafter installed
therein and the proceeds
thereof together with
all payments, other
proceeds and payments
due and to become due
and arising from or
relating to Loan.
	 	UCC Financing Statement
#6240123 0 Filed 7/12/06
Delaware Secretary of
State
	 
	 	 	 	 	 	 
	Mohawk Industries, Inc

	 	Dell Equipment Funding
L.P.
	 	All computer equipment
and peripherals wherever
located referenced in
Loan Agreement
#007520585-167 dated
July 7, 2006 and any
modifications to Loan
and all substitutions,
additions, etc. to
Equipment now or
hereafter installed
therein and the proceeds
thereof together with
all payments, other
proceeds and payments
due and to become due
and arising from or
relating to Loan.
	 	UCC Financing Statement
#6242201 2 Filed 7/13/06
Delaware Secretary of
State
	 
	 	 	 	 	 	 
	Mohawk Industries, Inc

	 	CIT Financial USA, Inc.
	 	All computer equipment
and peripherals wherever
located referenced in
Loan Agreement
#007520585-173 dated
July 24, 2006 and any
modifications to Loan
and all substitutions,
additions, etc. to
Equipment now or
hereafter installed
therein and the proceeds
thereof together with
all payments, other
proceeds and payments
due and to become due
and arising from or
relating to Loan.
	 	UCC Financing Statement
#6262174 6 Filed 7/28/06
Delaware Secretary of
State






 









 






	 	 	 	 	 	 	 
	Debtor	 	Secured Party or Parties	 	Description of Collateral	 	Description of Lien
	Mohawk Industries, Inc

	 	Dell Equipment Funding
L.P.
	 	All computer equipment
and peripherals wherever
located referenced in
Loan Agreement
#007520585-174 dated
July 25, 2006 and any
modifications to Loan
and all substitutions,
additions, etc. to
Equipment now or
hereafter installed
therein and the proceeds
thereof together with
all payments, other
proceeds and payments
due and to become due
and arising from or
relating to Loan
	 	UCC Financing Statement
#6262244 7 Filed 7/28/06
Delaware Secretary of
State
	 
	 	 	 	 	 	 
	Mohawk Industries, Inc

	 	CIT Financial USA, Inc.
	 	All computer equipment
and peripherals wherever
located referenced in
Loan Agreement
#007520585-180 dated
August 8, 2006 and any
modifications to Loan
and all substitutions,
additions, etc. to
Equipment now or
hereafter installed
therein and the proceeds
thereof together with
all payments, other
proceeds and payments
due and to become due
and arising from or
relating to Loan.
	 	UCC Financing Statement
#6284495 9 Filed 8/16/06
Delaware Secretary of
State
	 
	 	 	 	 	 	 
	Mohawk Industries, Inc.

	 	NMHG Financial
Services, Inc.
	 	All equipment now or
hereafter leased by
Lessor to Lessee and al
accessions, additions,
replacements and
substitutions thereto
and all proceeds
including insurance
proceeds.
	 	UCC Financing Statement
#6433622 8 Filed 12/12/06
Delaware Secretary of State
	 
	 	 	 	 	 	 
	Mohawk Industries, Inc.

	 	Regions Bank as Trustee
	 	Accounts and contract
rights under Loan
Agreement dated May 1,
1997 between Debtor and
South Carolina
Jobs-Economic
Development Authority,
as amended
	 	UCC Financing Statement
#2007 1209591 Filed
3/30/07 Delaware Secretary
of State







 











 





	 	 	 	 	 	 	 
	Debtor	 	Secured Party or Parties	 	Description of Collateral	 	Description of Lien
	Mohawk Industries, Inc.

	 	Banc of America Leasing
& Capital, LLC
	 	Certain goods described as
manufacturing equipment more
particularly described on
Lease Schedule No.
15556-11500-002 together with
all parts, attachments,
accounts, chattel paper,
general intangibles,
insurance, warranty and other
claims against 3rd
parties, all software and
other IP rights, proceeds and
books and records re the
foregoing.
	 	UCC Financing Statement
#2007 3722823 Filed
10/3/07 Delaware Secretary
of State
	 
	 	 	 	 	 	 
	Mohawk Industries, Inc.

	 	Banc of America Leasing
& Capital, LLC
	 	Certain goods generally
described as hardwood floor
manufacturing line subject to
Lease Schedule No.
15556-11500-001 in which
Debtor now or hereafter has
rights together with all
parts, attachments, all
accounts, chattel paper and
general intangibles arising
from sale, all insurance,
warranty and claims against
3rd parties, all
software and other IP rights,
proceeds and all books and
records re the foregoing.
	 	UCC Financing Statement
#2007 3723201 Filed
10/3/07 Delaware Secretary
of State
	 
	 	 	 	 	 	 
	Mohawk Industries, Inc.
and
Mohawk Carpet
Corporation

	 	Banc of America Leasing
& Capital, LLC
	 	Specific items listed on UCC
including all replacements,
parts, repairs and
attachments.
	 	UCC Financing Statement
#2008 0274298 Filed
1/23/08 Delaware Secretary
of State
	 
	 	 	 	 	 	 
	Mohawk Industries, Inc.

	 	AT&T Capital Services,
Inc.
	 	All telecommunications and
data equipment including
telephones, modems, private
branch exchanges, switch-
boards, etc. along with all
other Equipment and items
provided to Lessee under
Schedule No. 001-2890600-040
and all supplements,
schedules, exhibits and
attachments thereto including
Cisco Routers;
	 	UCC Financing Statement
#2009 1056164 Filed 4/2/09
Delaware Secretary of
State






 









 






	 	 	 	 	 	 	 
	Debtor	 	Secured Party or Parties	 	Description of Collateral	 	Description of Lien
	Mohawk Industries, Inc.

	 	AT&T Capital Services,
Inc.
	 	All telecommunications and
data equipment including
telephones, modems, private
branch exchanges,
switchboards, etc. along with
all other Equipment provided
to Lessee under Schedule No.
001-2890600-041 and all
supplements, schedules,
exhibits and attachments
thereto including Cisco
Maintenance.
	 	UCC Financing Statement
#2009 1056222 Filed 4/2/09
Delaware Secretary of
State
	 
	 	 	 	 	 	 
	Mohawk Industries, Inc.

	 	General Electric Capital
Corporation
	 	All equipment leased to or
financed for the Debtor by SP
under certain Master
Equipment Lease Agreement No.
8418046-003 including all
replacements, additions, etc.
and proceeds therefrom.
	 	UCC Financing Statement
#2009 1479259 Filed
5/11/09 Delaware Secretary
of State
	 
	 	 	 	 	 	 
	Mohawk Industries, Inc.

	 	General Electric Capital
Corporation
	 	All equipment leased to or
financed for the Debtor by SP
under certain Master
Equipment Lease Agreement No.
8418046-004 including all
replacements, additions, etc.
and proceeds therefrom.
	 	UCC Financing Statement
#2009 1482477 Filed
5/11/09 Delaware Secretary
of State
	 
	 	 	 	 	 	 
	Mohawk Industries, Inc.

	 	General Electric Capital
Corporation
	 	All equipment leased to or
financed for the Debtor by SP
under certain Master
Equipment Lease Agreement No.
8418046-001 including all
replacements, additions, etc.
and proceeds therefrom.
	 	UCC Financing Statement
#2009 1485231 Filed
5/11/09 Delaware Secretary
of State
	 
	 	 	 	 	 	 
	Mohawk Industries, Inc.

	 	General Electric Capital
Corporation
	 	All equipment leased to or
financed for the Debtor by SP
under certain Master
Equipment Lease Agreement No.
8418046-002 including all
replacements, additions, etc.
and proceeds therefrom.
	 	UCC Financing Statement
#2009 1835526 Filed 6/9/09
Delaware Secretary of
State
	 
	 	 	 	 	 	 
	Mohawk Industries, Inc.

	 	MAX Leasing USA and
TCP Leasing, Inc.
	 	All equipment leased by
Debtor pursuant to Lease
Agreement dated 4/16/09,
Schedule 1 together with all
proceeds thereof — specific
equipment listed located in
GA.
	 	UCC Financing Statement
#2009 1935474 Filed
6/17/09 Delaware Secretary
of State






 









 






	 	 	 	 	 	 	 
	Debtor	 	Secured Party or Parties	 	Description of Collateral	 	Description of Lien
	Mohawk Industries, Inc.

	 	Rockwell Automation
	 	All equipment and all
proceeds owned or later
acquired by Debtor together
with all books and records of
Debtor relating to the
equipment and proceeds;
Equipment means all
equipment, furniture,
furnishings and fixtures
listed on Schedule 1 to UCC.
	 	UCC Financing Statement
#2009 2451117 Filed
7/31/09 Delaware Secretary
of State
	 
	 	 	 	 	 	 
	Mohawk Industries, Inc.
and
Mohawk Carpet

	 	United Rentals (North
America), Inc.
	 	Debtor grants a security
interest in specific
Equipment and the proceeds of
the Equipment to secure the
prompt payment and
performance of Customer’s
purchase price and other
obligations.
	 	UCC Financing Statement
#2009 4122575 Filed
12/23/09 Delaware
Secretary of State
	 
	 	 	 	 	 	 
	Mohawk Industries, Inc.

	 	United Rentals (North
America), Inc.
	 	Customer grants to SP a
security interest in the
specific Equipment and the
proceeds of the Equipment to
secure the prompt payment and
performance of Customer’s
purchase price and other
obligations.
	 	UCC Financing Statement
#2010 0310056 Filed
1/28/10 Delaware Secretary
of State
	 
	 	 	 	 	 	 
	Mohawk Industries, Inc.

	 	General Electric Capital
Corporation
	 	All Equipment leased to or
financed for the Debtor by SP
under Lease Agreement No.
8418046-009 including all
accessories, accessions,
replacements, additions,
substitutions, add-ons and
upgrades thereto and any
proceeds therefrom.
	 	UCC Financing Statement
#2010 2389751 Filed 7/9/10
Delaware Secretary of
State
	 
	 	 	 	 	 	 
	Mohawk Industries, Inc.

	 	Wells Fargo Bank, N.A.
	 	1- Used Mitsubishi Forklift
and all equipment parts,
accessories, substitutions,
additions, etc. installed in
or used therewith and
proceeds thereof, together
with all installment
payments, proceeds and
payments due, relating to
said equipment.
	 	UCC Financing Statement
#2010 4039024 Filed
11/17/10 Delaware
Secretary of State






 









 






	 	 	 	 	 	 	 
	Debtor	 	Secured Party or Parties	 	Description of Collateral	 	Description of Lien
	Mohawk Industries, Inc.

	 	Wells Fargo Bank, N.A.
	 	2- Used 2005 Mitsubishi
Forklifts and all equipment
parts, accessories,
substitutions, additions,
etc. installed in or used
therewith and proceeds
thereof, together with all
installment payments,
proceeds and payments due,
relating to said equipment.
	 	UCC Financing Statement
#2011 0858715 Filed 3/8/11
Delaware Secretary of
State
	 
	 	 	 	 	 	 
	Aladdin Manufacturing
Corporation

	 	Toyota Motor Credit
Corporation
	 	Forklifts, rug poles,

batteries, chargers
	 	UCC Financing Statement
#6256943 2 Filed 7/25/06
Delaware Secretary of
State
	 
	 	 	 	 	 	 
	Aladdin Manufacturing
Corporation

	 	Greater Bay Bank N.A.
	 	Forklifts, chargers,
batteries and all equipment
parts, additions, etc. and
proceeds thereof together
with all installment
payments, proceeds and other
payments due or arising from
or relating to equipment.
	 	UCC Financing Statement
#6343154 1 Filed 10/4/06
Delaware Secretary of
State
	 
	 	 	 	 	 	 
	Aladdin Manufacturing
Corporation

	 	Toyota Motor Credit
Corporation
	 	Forklifts, batteries, chargers
	 	UCC Financing Statement
#6432444 8 Filed 12/11/06
Delaware Secretary of
State
	 
	 	 	 	 	 	 
	Aladdin Manufacturing
Corp

	 	Raymond Leasing
Corporation
	 	Specific equipment, install
and freight
	 	UCC Financing Statement
#2007 0507953 Filed 2/8/07
Delaware Secretary of
State
	 
	 	 	 	 	 	 
	Aladdin Manufacturing
Corporation

	 	Toyota Motor Credit
Corporation
	 	One new Toyota forklift
	 	UCC Financing Statement
#2007 1686889 Filed 5/4/07
Delaware Secretary of
State
	 
	 	 	 	 	 	 
	Aladdin Manufacturing
Corporation

	 	Toyota Motor Credit
Corporation
	 	3 Toyota forklifts
	 	UCC Financing Statement
#2007 2191434 Filed
6/11/07 Delaware Secretary
of State
	 
	 	 	 	 	 	 
	Aladdin Manufacturing
Corporation

	 	Toyota Motor Credit
Corporation
	 	1 Toyota forklift
	 	UCC Financing Statement
#2007 2509734 Filed 7/2/07
Delaware Secretary of
State
	 
	 	 	 	 	 	 
	Aladdin Manufacturing
Corporation

	 	Toyota Motor Credit
Corporation
	 	1 Toyota forklift
	 	UCC Financing Statement
#2007 2509825 Filed 7/2/07
Delaware Secretary of
State
	 
	 	 	 	 	 	 
	Aladdin Manufacturing
Corporation

	 	NMHG Financial
Services, Inc.
	 	All equipment now or
hereafter leased by Lessor to
Lessee and all additions,
replacements, etc. thereto
and all proceeds thereof
	 	UCC Financing Statement
#2007 3253241 Filed
8/27/07 Delaware Secretary
of State
	 
	 	 	 	 	 	 
	Aladdin Manufacturing
Corporation

	 	Toyota Motor Credit
Corporation
	 	Toyota forklifts, batteries,

chargers, casacade clamps
	 	UCC Financing Statement
#2007 3254967 Filed 8/27/07
Delaware Secretary of State






 









 






	 	 	 	 	 	 	 
	Debtor	 	Secured Party or Parties	 	Description of Collateral	 	Description of Lien
	Aladdin Manufacturing
Corporation

	 	Toyota Motor Credit
Corporation
	 	11 -2007 New Toyota

forklifts
	 	UCC Financing Statement
#2007 4450952 Filed
11/26/07 Delaware
Secretary of State
	 
	 	 	 	 	 	 
	Aladdin Manufacturing
Corporation

	 	Toyota Motor Credit
Corporation
	 	2-forklifts; 5-batteries
	 	UCC Financing Statement
#2008 0663284 Filed
2/25/08 Delaware Secretary
of State
	 
	 	 	 	 	 	 
	Dal-Tile Corporation

	 	Raymond Leasing
Corporation
	 	Specific equipment
	 	UCC Financing Statement
#2006062300369 Filed
6/23/06 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	Dal-Tile Corporation

	 	US Express Leasing, Inc.
	 	All items of personal
property leased pursuant to
Lease Agreement dated 8/10/06
between SP and Debtor
together with all related
software and all additions,
etc. and proceeds;
Equipment — Tennant 5400
Fast Scrubbers
	 	UCC Financing Statement
#2006081100166 Filed
8/11/06 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	Dal-Tile Corporation

	 	US Express Leasing, Inc.
	 	All items of personal
property leased pursuant to
Lease Agreement dated 8/10/06
between SP and Debtor
together with all related
software and all additions,
etc. and proceeds;
Equipment — Tennant 8410
Sweeper/ Scrubber
	 	UCC Financing Statement
#2006081100178 Filed
8/11/06 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	Dal-Tile Corporation

	 	US Express Leasing, Inc.
	 	All items of personal
property leased pursuant to
Lease Agreement dated 8/10/06
between SP and Debtor
together with all related
software and all additions,
etc. and proceeds;
Equipment — 2 Tennant 5400
Scrubbers
	 	# 2006081100180
Filed 8/11/06
Pennsylvania Department of
State
	 
	 	 	 	 	 	 
	Dal-Tile Corporation

	 	Crown Credit Company
	 	Lift truck and battery
	 	UCC Financing Statement
#2006103001896 Filed
10/30/06 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	Dal-Tile Corporation

	 	Crown Credit Company
	 	Crown Lift Truck, battery
and charger
	 	UCC Financing Statement
#2006110800332 Filed
11/8/06 Pennsylvania
Department of State






 









 






	 	 	 	 	 	 	 
	Debtor	 	Secured Party or Parties	 	Description of Collateral	 	Description of Lien
	DAL-TILE 

CORPORATION

	 	Toyota Motor Credit
Corporation
	 	11 new Toyota forklifts and
1 used Toyota Forklift
	 	UCC Financing Statement
#2006110902403 Filed
11/9/06 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	Dal-Tile Corporation &
Dal-Tile
International, Inc.
as Co-Lessees

	 	Citicorp Leasing, Inc.
	 	One New 2006 Caterpillar

Model #C5000LP
	 	UCC Financing Statement
#2007011105049 Filed
1/11/07 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	Dal-Tile Corporation &
Dal-Tile
International, Inc.
as Co-Lessees

	 	Citicorp Leasing, Inc.
	 	One New MHF Model

#70DMHT14C
	 	UCC Financing Statement
#2007020600014 Filed
2/6/07 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	Dal-Tile Corporation

	 	Crown Credit Company
	 	Crown Lift Truck, Battery
and Charger
	 	UCC Financing Statement
#2007030507260 Filed
3/5/07 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	TFS Capital Funding,
Operations Counsel —
Construction
	 	One Genie Z45/25
Articulating Boom and all
accessions, replacements,
add-ons
	 	UCC Financing Statement
#2007051802932 Filed
5/18/07 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	Raymond Leasing
Corporation
	 	Specific equipment
	 	UCC Financing Statement
#2007070605610 Filed
7/6/07 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	Raymond Leasing
Corporation
	 	Specific equipment
	 	UCC Financing Statement
#2007090608735 Filed
9/6/07 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	Raymond Leasing
Corporation
	 	Specific equipment
	 	UCC Financing Statement
#2008021407740 Filed
2/14/08 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	Raymond Leasing
Corporation
	 	Specific equipment
	 	UCC Financing Statement
#2008022001917 Filed
2/19/08 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	Raymond Leasing
Corporation
	 	Raymond Reach trucks,
exide batteries and Raymond
Orderpicker Trucks
	 	UCC Financing Statement
#2008031100920 Filed
3/10/08 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	Raymond Leasing
Corporation
	 	Specific equipment
	 	UCC Financing Statement
#2008070906127 Filed
7/9/08 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	Raymond Leasing
Corporation
	 	Specific equipment
	 	UCC Financing Statement
#2008081806685 Filed
8/18/08 Pennsylvania
Department of State






 









 






	 	 	 	 	 	 	 
	Debtor	 	Secured Party or Parties	 	Description of Collateral	 	Description of Lien
	DAL-TILE
CORPORATION

	 	Raymond Leasing
Corporation
	 	Specific equipment
	 	UCC Financing Statement
#2008081806700 Filed
8/18/08 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	Raymond Leasing
Corporation
	 	Specific equipment
	 	UCC Financing Statement
#2008110406900 Filed
11/4/08 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	Raymond Leasing
Corporation
	 	Specific equipment
	 	UCC Financing Statement
#2008110605407 Filed
11/6/08Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	General Electric Capital
Corporation
	 	All Equipment leased to or
financed for Debtor by SP
under Master Equipment Lease
Agreement No. 8404978-006
including all accessories,
replacements, etc. and
proceeds
	 	UCC Financing Statement
#2008121602327 Filed
12/16/08 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	Raymond Leasing
Corporation
	 	Specific equipment
	 	UCC Financing Statement
#2008122305708 Filed
12/23/08 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	Raymond Leasing
Corporation
	 	Specific equipment
	 	UCC Financing Statement
#2009010707252 Filed
1/7/09 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	Raymond Leasing
Corporation
	 	Specific equipment
	 	UCC Financing Statement
#2009010707288 Filed
1/7/09 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	Dal-Tile Corporation

	 	Crown Credit Company
	 	Crown lift truck and Battery
	 	UCC Financing Statement
#2009012104561 Filed
1/21/09 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	Raymond Leasing
Corporation
	 	Specific equipment
	 	UCC Financing Statement
#2009012605284 Filed
1/26/09 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	Raymond Leasing
Corporation
	 	Specific equipment
	 	UCC Financing Statement
#2009012605309 Filed
1/26/09 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	Raymond Leasing
Corporation
	 	Specific equipment
	 	UCC Financing Statement
#2009031105910 Filed
3/11/09 Pennsylvania
Department of State






 









 






	 	 	 	 	 	 	 
	Debtor	 	Secured Party or Parties	 	Description of Collateral	 	Description of Lien
	Dal-Tile Corporation

	 	Wells Fargo Bank, N.A.
	 	2 Clark forklifts and all
equipment parts,
substitutions, additions,
etc. and proceeds thereof
together with all installment
payments, insurance proceeds,
payments due relating to
equipment
	 	UCC Financing Statement
#2009041304774 Filed
4/13/09 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	Dal-Tile Corporation

	 	Crown Credit Company
	 	Crown Lift Trucks, Batteries
and Exide Chargers
	 	UCC Financing Statement
#2009041305891 Filed
4/13/09 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	Raymond Leasing
Corporation
	 	Specific equipment
	 	UCC Financing Statement
#2009052006218 Filed
5/20/09 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	Dal-Tile Corporation

	 	Crown Credit Company
	 	All equipment now or
hereafter leased from Lessor
by Lessee pursuant to Master
Lease Agreement dated 11/1/01
together with all schedules,
exhibits, etc. including
material handling equipment,
batteries, chargers, trucks,
etc. and related equipment
and all additions, etc. and
all proceeds
	 	UCC Financing Statement
#2009060107793 Filed
6/1/09 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	Dal-Tile Corporation

	 	Wells Fargo Bank, N.A.
	 	3 Caterpillar forklifts and
all equipment parts,
substitutions, etc. and
proceeds together with all
installment payments,
insurance proceeds and
payments due and arising from
said equipment
	 	UCC Financing Statement
#2009061807243 Filed
6/18/09 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	Toyota Motor Credit
Corporation
	 	Forklifts, batteries, chargers
	 	UCC Financing Statement
#2009062303032 Filed
6/23/09 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	Dal-Tile Corporation

	 	Wells Fargo Bank, N.A.
	 	Specific equipment and all
equipment parts,
substitutions, etc. and
proceeds together with all
installment payments,
insurance proceeds and
payments due and arising from
said equipment
	 	UCC Financing Statement
#2009091104441 Filed
9/11/09 Pennsylvania
Department of State






 









 






	 	 	 	 	 	 	 
	Debtor	 	Secured Party or Parties	 	Description of Collateral	 	Description of Lien
	DAL-TILE
CORPORATION

	 	Raymond Leasing
Corporation
	 	Specific Equipment
	 	UCC Financing Statement
#2009100706805 Filed
10/7/09 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	Toyota Motor Credit
Corporation
	 	Fifteen New Toyota Forklifts
	 	UCC Financing Statement
#2009111002173 Filed
11/9/09 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	Toyota Motor Credit
Corporation
	 	Nine Toyota Forklifts

A true lease
	 	UCC Financing Statement
#2009111605979 Filed
11/16/09 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	Dal-Tile Corporation

	 	Wells Fargo Bank, N.A.
	 	Specific equipment and all
equipment parts,
substitutions, etc. and
proceeds together with all
installment payments,
insurance proceeds and
payments due and arising from
said equipment
	 	UCC Financing Statement
#2009122305724 Filed
12/23/09 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	Toyota Motor Credit
Corporation
	 	One New 2010 Toyota

Forklift

A true lease
	 	UCC Financing Statement
#2010022205154 Filed
2/22/10 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	Toyota Motor Credit
Corporation
	 	Four New 2010 Toyota
Forklifts —
	 	UCC Financing Statement
#2010022205318 Filed
2/22/10 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	General Electric Capital
Corporation
	 	1-2004 Forklift and
attachments plus all
replacements, exchanges, etc
lease, and other proceeds
thereof.
	 	UCC Financing Statement
#2010051861995 Filed
5/18/10 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	General Electric Capital
Corporation
	 	Mitsubishi Forklift and
attachments plus all
replacements, exchanges, etc
lease, and other proceeds
thereof.
	 	UCC Financing Statement
#2010052503683 Filed
5/25/10 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	Dal-Tile Corporation

	 	De Lage Landen
Financial Services,
Inc.
	 	All equipment of any make or
manufacture, together with
all accessories and
attachments financed by or
leased to Lessee by Lessor
under Master Lease Agreement
Number 782.
	 	UCC Financing Statement
#2010060805479 Filed
6/8/10 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	Toyota Motor Credit
Corporation
	 	Five Toyota Forklifts
	 	UCC Financing Statement
#2010102505703 Filed
10/25/10 Pennsylvania
Department of State






 









 






	 	 	 	 	 	 	 
	Debtor	 	Secured Party or Parties	 	Description of Collateral	 	Description of Lien
	DAL-TILE
CORPORATION

	 	Raymond Leasing
Corporation
	 	Specific items
	 	UCC Financing Statement
#2010120303846 Filed
12/3/10 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	Toyota Motor Credit
Corporation
	 	Two Toyota Forklifts
	 	UCC Financing Statement
#2010120606153 Filed
12/6/10 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE
CORPORATION

	 	Toyota Motor Credit
Corporation
	 	Three Toyota Forklifts and
Six Batteries
	 	UCC Financing Statement
#2011033004204 Filed
3/30/11 Pennsylvania
Department of State
	 
	 	 	 	 	 	 
	DAL-TILE GROUP INC.

	 	De Lage Landen
Financial Services,
Inc.
	 	All equipment of any make or
manufacture together with all
accessories and attachments
financed by or leased to
Lessee by Lessor under Master
Lease Agreement No. 555
	 	UCC Financing Statement
#5256781 7 Filed 8/17/05
and continued 6/21/10
Delaware Secretary of
State
	 
	 	 	 	 	 	 
	Mohawk Industries, Inc.
and
Mohawk Carpet
Corporation

	 	Banc of America Leasing
& Capital, Inc.
	 	Specific equipment including
all replacements, parts,
repairs and attachments
affixed thereto, now owned or
hereafter acquired.
	 	UCC Financing Statement
#2008 0274298 Filed
1/23/08 Delaware Secretary
of State
	 
	 	 	 	 	 	 
	MOHAWK CARPET
CORPORATION

	 	Cisco Systems Capital
Corporation
	 	Specific items listed on
Schedule A to Lease Agreement
including all additions,
substitutions, etc. and
proceeds
	 	UCC Financing Statement
#2008 2583266 Filed
7/23/08 Delaware Secretary
of State
	 
	 	 	 	 	 	 
	MOHAWK CARPET
CORPORATION

	 	Banc of America Leasing
& Capital, LLC
	 	Specific items including all
replacements, parts, repairs
and attachments affixed
thereto, now owned or
hereafter acquired.
	 	UCC Financing Statement
#2008 4086037 Filed
12/09/08 Delaware
Secretary of State
	 
	 	 	 	 	 	 
	MOHAWK CARPET
CORPORATION

	 	IBM Credit LLC
	 	Specific equipment, together
with all related software and
all additions, upgrades, etc.
replacements or exchanges and
all proceeds including
payments under insurance,
etc.
	 	UCC Financing Statement
#2009 0019882 Filed 1/5/09
Delaware Secretary of
State







 











 





	 	 	 	 	 	 	 
	Debtor	 	Secured Party or Parties	 	Description of Collateral	 	Description of Lien
	MOHAWK CARPET, LLC

	 	AT&T Capital
Services, Inc.
	 	All
telecommunications
and data equipment
including all
additions, upgrades
etc. and all
proceeds along with
any other Equipment
and other items and
rights, leased,
licensed or
otherwise provided
to Lessee by
Lessor.
	 	UCC Financing
Statement #2009
1851978 Filed
6/10/09 Delaware
Secretary of State
	 
	MOHAWK CARPET, LLC

	 	AT&T Capital
Services, Inc.
	 	All
telecommunications
and data equipment
including all
additions,
upgrades, etc. and
all proceeds along
with any other
Equipment and other
items and rights,
leased, licensed or
otherwise provided
to Lessee under
Schedule No.
001-4561100-004
between Lessee and
Lessor and all
supplementary
schedules, exhibits
including CISCO
2811 Routers.
	 	UCC Financing
Statement #2009
2051180 Filed
6/26/09 Delaware
Secretary of State
	 
	MOHAWK CARPET, LLC

	 	AT&T Capital
Services, Inc.
	 	All
telecommunications
and data equipment
including all
additions,
upgrades, etc. and
all proceeds along
with any other
Equipment and other
items and rights,
leased, licensed or
otherwise provided
to Lessee under
Schedule No.
001-4561100-005
between Lessee and
Lessor and all
supplementary
schedules, exhibits
including CISCO
Maintenance for
2811 Routers
	 	UCC Financing
Statement #2009
2052204 Filed
6/26/09 Delaware
Secretary of State






 









 






	 	 	 	 	 	 	 
	Debtor	 	Secured Party or Parties	 	Description of Collateral	 	Description of Lien
	Mohawk Carpet, LLC

	 	AT&T Capital
Services, Inc.
	 	All
telecommunications
and data equipment
including all
additions, upgrades
etc. and all
proceeds along with
any other Equipment
and other items and
rights, leased,
licensed or
otherwise provided
to Lessee under
Schedule no.
001-4561100-014
between Lessee and
Lessor and all
supplementary
schedules, exhibits
including specific
CISCO Routers and
related
peripherals.
	 	UCC Financing
Statement #2009
3449599 Filed
10/27/09 Delaware
Secretary of State
	 
	Mohawk Carpet, LLC

	 	AT&T Capital
Services, Inc.
	 	All
telecommunications
and data equipment
including all
additions,
upgrades, etc. and
all proceeds along
with any other
Equipment and other
items and rights,
leased, licensed or
otherwise provided
to Lessee under
Schedule No.
001-4561100-007
between Lessee and
Lessor and all
supplementary
schedules, exhibits
including specific
CISCO Routers and
related
peripherals.
	 	UCC Financing
Statement #2009
3453963 Filed
10/27/09 Delaware
Secretary of State
	 
	Mohawk Carpet, LLC

	 	AT&T Capital
Services, Inc.
	 	All
telecommunications
and data equipment
including all
additions,
upgrades, etc. and
all proceeds along
with any other
Equipment and other
items and rights,
leased, licensed or
otherwise provided
to Lessee under
Schedule No.
001-4561100-011
between Lessee and
Lessor and all
supplementary
schedules, exhibits
including specific
CISCO modules and
related
peripherals.
	 	UCC Financing
Statement #2009
3456412 Filed
10/28/09 Delaware
Secretary of State






 









 






	 	 	 	 	 	 	 
	Debtor	 	Secured Party or Parties	 	Description of Collateral	 	Description of Lien
	Mohawk Carpet, LLC

	 	AT&T Capital
Services, Inc.
	 	All
telecommunications
and data equipment
including all
additions,
upgrades, etc. and
all proceeds along
with any other
Equipment and other
items and rights,
leased, licensed or
otherwise provided
to Lessee under
Schedule No.
001-4561100-009
between Lessee and
Lessor and all
supplementary
schedules, exhibits
including specific
Wave Modules and
related
peripherals.
	 	UCC Financing
Statement #2009
3456420 Filed
10/28/09 Delaware
Secretary of State
	 
	Mohawk Industries,
Inc. and
Mohawk Carpet
Corporation

	 	United Rentals (North
America), Inc.
	 	Debtor grants a
security interest
in specific
Equipment to secure
the prompt payment
and performance of
Customer’s purchase
price and other
obligations.
	 	UCC Financing
Statement #2009
4122575 Filed
12/23/09 Delaware
Secretary of State
	 
	Mohawk Carpet, LLC

	 	Banc of America
Leasing & Capital,
LLC
	 	Specific equipment
including all
replacements,
parts, repairs and
attachments now
owned or hereafter
acquired.
	 	UCC Financing
Statement #2010
0023170 Filed
1/5/10 Delaware
Secretary of State
	 
	Mohawk Carpet, LLC

	 	Banc of America
Leasing & Capital,
LLC
	 	Specific equipment
including all
replacements,
parts, repairs and
attachments now
owned or hereafter
acquired.
	 	UCC Financing
Statement #2010
0023212 Filed
1/5/10 Delaware
Secretary of State
	 
	Mohawk Carpet, LLC

	 	AT&T Capital
Services, Inc.
	 	All
telecommunications
and data equipment
including all
additions,
upgrades, etc. and
all proceeds along
with any other
Equipment and other
items and rights,
leased, licensed or
otherwise provided
to Lessee under
Schedule No.
001-4561100-019
between Lessee and
Lessor and all
supplementary
schedules, exhibits
including specific
CISCO Modules and
related
peripherals.
	 	UCC Financing
Statement #2010
1631914 Filed
4/27/10 Delaware
Secretary of State






 









 






	 	 	 	 	 	 	 
	Debtor	 	Secured Party or Parties	 	Description of Collateral	 	Description of Lien
	Mohawk Carpet, LLC

	 	AT&T Capital
Services, Inc.
	 	All
telecommunications
and data equipment,
including all
additions, upgrades
and accessions
thereto and all
proceeds thereof
along with any
other Equipment and
other items and
rights, leased,
licensed or
provided to Lessee
under Schedule No.
001-4561100-022
between Lessor and
Lessee and all
supplementary
schedules, exhibits
and attachments
thereto.
	 	UCC Financing
Statement #2010
2869620 Filed
8/17/10 Delaware
Secretary of State
	 
	Mohawk Carpet, LLC

	 	AT&T Capital
Services, Inc.
	 	All
telecommunications
and data equipment,
including all
additions, upgrades
and accessions
thereto and all
proceeds thereof
along with any
other Equipment and
other items and
rights, leased,
licensed or
provided to Lessee
under Schedule No.
001-4561100-024
between Lessor and
Lessee and all
supplementary
schedules, exhibits
and attachments
thereto.
	 	UCC Financing
Statement #2010
4000778 Filed
11/15/10 Delaware
Secretary of State
	 
	Mohawk Carpet, LLC

	 	Banc of America
Leasing & Capital, LC
	 	Specific items
including all
replacements,
parts, repairs and
attachments affixed
thereto, now owned
or hereafter
acquired and all
proceeds thereof.
	 	UCC Financing
Statement #2010
4393702 Filed
12/13/10 Delaware
Secretary of State
	 
	Mohawk Carpet, LLC

	 	Banc of America
Leasing & Capital, LC
	 	Specific items
including all
replacements,
parts, repairs and
attachments affixed
thereto, now owned
or hereafter
acquired and all
proceeds thereof.
	 	UCC Financing
Statement #2010
4393751 Filed
12/13/10 Delaware
Secretary of State
	 
	MOHAWK CARPET 

DISTRIBUTION, LP

	 	Greater Bay Bank N.A.
	 	Komatsu Forklifts
and all equipment
parts,
substitutions, etc.
now or hereafter
installed therein
and proceeds
thereof, together
with all
installment
payments, insurance
proceeds or
payments due
relating to said
equipment.
	 	UCC Financing
Statement #5197769
4 Filed 6/28/05
Delaware Secretary
of State






 









 






	 	 	 	 	 	 	 
	Debtor	 	Secured Party or Parties	 	Description of Collateral	 	Description of Lien
	MOHAWK CARPET
DISTRIBUTION, L.P.

	 	Wells Fargo Bank, N.A.
	 	Clark Forklift
Trucks and all
equipment parts,
substitutions, etc.
now or hereafter
installed therein
and proceeds
thereof, together
with all
installment
payments, insurance
or payments due
from said
equipment.
	 	UCC Financing
Statement #2008
2311692 Filed
7/7/08 Delaware
Secretary of State
	 
	MOHAWK CARPET 

TRANSPORTATION OF 

GEORGIA, LLC

	 	SunTrust Equipment
Finance & Leasing
Corp.
	 	Equipment leased
pursuant to
Equipment Lease
Agreement dated
7/29/03 between
Lessor and Lessee,
together with all
improvements,
additions, etc. and
proceeds thereof —
collateral includes
Great Dane Trailers
	 	UCC Financing
Statement #4337635
9 Filed 11/29/04
and continued
11/4/09 Delaware
Secretary of State
	 
	MOHAWK CARPET 

TRANSPORTATION OF 

GEORGIA, LLC

	 	SunTrust Leasing

Corporation
	 	Equipment leased
pursuant to
Equipment Lease
Agreement dated
7/29/03 between
Lessor and Lessee,
together with all
improvements,
additions, etc. and
proceeds thereof—
collateral includes
Roland Curtainside
Upper Structure
installed on
Trailer
	 	UCC Financing
Statement #6448435
8 Filed 12/21/06
Delaware Secretary
of State
	 
	MOHAWK CARPET 

TRANSPORTATION OF 

GEORGIA, LLC

	 	Max Leasing USA and
TCP Leasing, Inc.
	 	All equipment
leased by Debtor
pursuant to Master
Lease Agreement
dated 4/16/09,
Schedule 1,
together with all
insurance proceeds
thereon and
proceeds thereof.
Asset listed on UCC
is located in GA.
	 	UCC Financing
Statement #2009
1936050 Filed
6/17/09 Delaware
Secretary of State
	 
	UNILIN FLOORING NC, LLC

	 	Banc of America
Leasing & Capital,
LLC
	 	Certain goods
generally described
as Hardwood
Flooring
Manufacturing Line
subject to Lease
Schedule No.
15556-11500-001,
together with all
parts, etc.,
accounts, chattel
paper and general
intangibles related
to disposition of
goods, all
insurance,
warranty, software
and other IP
rights, proceeds
and all books and
records.
	 	UCC Financing
Statement
#20070094833H Filed
10/4/07 North
Carolina Secretary
of State






 









 






	 	 	 	 	 	 	 
	Debtor	 	Secured Party or Parties	 	Description of Collateral	 	Description of Lien
	UNIULIN FLOORING NC,
LLC

	 	NMHG Financial
Services, Inc.
	 	All equipment now
or hereafter leased
by Lessor to Lessee
and all additions,
replacements and
substitutions
thereto and all
proceeds thereof
	 	UCC Financing
Statement
#20080068763A Filed
7/28/08 North
Carolina Secretary
of State
	 
	Unilin Flooring NC, LLC

	 	NMHG Financial
Services, Inc.
	 	All equipment now
or hereafter leased
by Lessor to Lessee
and all additions,
replacements and
substitutions
thereto and all
proceeds thereof.
	 	UCC Financing
Statement
#20090003955E Filed
1/15/09 North
Carolina Secretary
of State
	 
	Unilin Flooring NC, LLC

	 	Crown Credit Company
	 	All of Lessee’s
interest in all
equipment now or
hereafter leased
from Lessor by
Lessee pursuant to
Master Lease
Agreement dated
1/6/09 together
with all schedules,
exhibits, etc.
thereto, including
all material
handling equipment,
batteries,
chargers, trucks
and related
equipment and all
substitutions, etc.
and all proceeds
thereof.
	 	UCC Financing
Statement
#20090013058K Filed
2/19/09 North
Carolina Secretary
of State
	 
	Unilin Flooring NC, LLC

	 	Stearns Bank N.A.
	 	Industrial sweeper
with all
attachments,
upgrades, etc.
	 	UCC Financing
Statement
#20100012518A Filed
2/17/10 North
Carolina Secretary
of State
	 
	Unilin Flooring NC, LLC

	 	TCF Equipment
Finance, Inc.
	 	New Taylor
Industrial Lift
Truck, together
with all
accessories,
attachments, parts,
etc.; all software
embedded in an
integrated
transaction with
the Lift Truck and
all modifications,
etc.; and all
proceeds of
foregoing.
	 	UCC Financing
Statement
#20110000759G Filed
1/3/11 North
Carolina Secretary
of State
	 
	Unilin Flooring NC, LLC

	 	VFS Leasing Co.
	 	2- 2011 Volvo L110F
with attachments,
together with all
parts, accessories,
attachments, etc.
and any and all
cash and non-cash
proceeds thereof.
	 	UCC Financing
Statement
#20110011212B Filed
2/8/11 North
Carolina Secretary
of State






 









 






	 	 	 	 	 	 	 
	Debtor	 	Secured Party or Parties	 	Description of Collateral	 	Description of Lien
	Unilin Flooring NC, LLC

	 	TCF Equipment
Finance, Inc.
	 	New Taylor
Industrial Lift
Truck, together
with all
accessories,
attachments, parts,
etc.; all software
embedded in an
integrated
transaction with
the Lift Truck and
all modifications,
etc.; and all
proceeds of
foregoing.
	 	UCC Financing
Statement
#20110017334C Filed
3/1/11 North
Carolina Secretary
of State







 












 





SCHEDULE 7.02




EXISTING INVESTMENTS



1. Investments by the Loan Parties and their Subsidiaries as described on Schedule 5.12.



2. Guarantee by Mohawk Industries, Inc. of the obligations of Mohawk International Holdings
S.á r.l. under that certain Euro Overdraft Facility with ING Belgium SA/NV.



3. All Guarantees by Unilin B.V.B.A. llisted on Schedule 7.03.
















 








SCHEDULE 7.03




EXISTING INDEBTEDNESS




	 	 	 	 	 
	1.	 	 	 	 
	1991 Development Authority of Catoosa County, Georgia, Tax
exempt Industrial Development Revenue Refunding Bonds due
2011

	 	$	6,500,000	 
	 
	 	 	 	 
	1999 Development Authority of Whitfield County Solid Waste
Disposal Revenue Bonds due 2019

	 	$	3,100,000	 
	 
	 	 	 	 
	1997 Laurens County ($1MM) & Gordon County ($2MM)
Industrial Development Revenue Bonds due 2017

	 	$	3,000,000	 
	 
	 	 	 	 
	1997 Development Authority of the City of Summerville,
Georgia Exempt Facility Revenue Bonds due 2017

	 	$	30,000,000	 
	 
	 	 	 	 
	1997-C South Carolina Economic Development Authority
Economic Development Revenue Bonds due 2017

	 	$	6,473,368	 
	 
	 	 	 	 
	1997-B South Carolina Economic Development Authority
Economic Development Revenue Bonds due 2017

	 	$	3,000,000	 
	 
	 	 	 	 
	Mohawk Industries, Inc. 7.20% Senior Notes due 2012 issued
pursuant to that certain Indenture dated as of April 2,
2002 by and between Mohawk Industries, Inc., as Issuer and
U.S. Bank, as Trustee

	 	$	400,000,000	 
	 
	 	 	 	 
	Mohawk Industries, Inc. 6.125% Senior Notes due 2016 issued
pursuant to that certain First Supplemental Indenture dated
as of January 17, 2006 by and between Mohawk Industries,
Inc., as Issuer and SunTrust Bank, as Trustee

	 	$	900,000,000	 
	 
	 	 	 	 
	Guarantee by Mohawk Industries, Inc. of the obligations of
Mohawk International Holdings S.á r.l. under that certain
Euro Overdraft Facility with ING Belgium SA/NV

	 	€	30,000,000	 
	 
	 	 	 	 
	Credit facility between ING Belgium SA/NV, as lender, and
Mohawk International Holdings S.à r.l. as Borrower

	 	€	30,000,000	 
	 
	 	 	 	 
	Credit facility between ING Belgium SA/NV, as lender, and
Unilin B.V.B.A. as Borrower

	 	€	6,000,000	 
	 
	 	 	 	 
	Credit facility between EON Bank Bhd., as lender, and
Syarikat Malaysia Wood Industries Sdn. Bhd. as Borrower

	 	MYR 24,000,000






3. All Existing Letters of Credit listed on Schedule 1.01(d).



4. The following capital leases:





	 	•	 	Lease for 550 Cloniger Drive, Thomasville, North Carolina, dated June 1, 2004, between
Unilin Flooring NC, LLC and Davidson County Finance Department.
	 
	 	•	 	Lease for 1200 Sunrise Avenue, Thomasville, North Carolina, dated August 1, 2010,
between Unilin Flooring NC, LLC and Washbury LLC.














 












	 	•	 	Lease for Rue de L’usine 29, Castelsarassin, France, dated June 1, 2003, between Unilin
Systems SAS and Ville de Castersarassin.
	 
	 	•	 	Master Equipment Lease between Unilin Roofing Netherlands and Leaseplan, dated May 1,
2004 (as amended by schedules BSGN74, BSGN76, BSLV56, BSZP72, BTDD58, BTFD92, OH49DF,
OH51DF, OH64RX, OH65RX, OH66RX, OH67RX, OJO5RS, OJ26TB, OJ57TT, OJ64HJ, OJ64SH, OJ68RZ,
CE0311, CE0615, CE0792, CE0846, CE0958, CE3616, CE3652, OP9304, OP9314, OP9324, OP90H8,
OP2374, OP3751.
	 
	 	•	 	Master Equipment Lease, between Unilin Distribution Limited and NiiB Finance (as
amended by schedules 06LH2237, 08LH2315, 09D14732, DY60UKZ, MJZ7386, MJZ7387,
O50960002246, 050960002254, R16N50045 (050960002505), MJZ8514, MJZ8515, MJZ8513, NJZ4619,
PE08LMM, ND08JPV, RUI7898, YF56RJY, LJZ6245, MJZ2600, MJZ5570.
	 
	 	•	 	Automobile Lease, dated September 20, 2006, between Unilin Distribution Limited and NIB
– A Bank of Ireland.
	 
	 	•	 	Master Equipment Lease, dated January 14, 2010, between Mohawk Carpet Transportation of
Georgia, LLC and GE Capital.
	 
	 	•	 	Forklift Lease, dated August 2, 2008, between Dal Tile Distribution, Inc. (successor in
interest to Marble Point Inc.) and First Citizens Bank.
	 
	 	•	 	Forklift Lease, dated July 1, 2008, between Dal Tile Distribution, Inc. (successor in
interest to Marble Point Inc.) and First Citizens Bank.




5. Obligations to purchase equity interests in Dal-Italia, LLC, pursuant to the provisions of the
Dal-Italia, LLC Operating Agreement, as amended.



6. The following Guarantees by Unilin B.V.B.A.




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ACCOUNT	 	GUARANTEE	 	NUMBER	 	CURR.	 	AMOUNT	 	BENEFICIARY
	385031192940

	 	MISSING BILLS OF LADING
	 	 	1338025	 	 	EUR
	 	 	34,487.45	 	 	CMA CGM
	385031192940

	 	GOOD PERFORMANCE
	 	 	1347533	 	 	EUR
	 	 	500.00	 	 	DOUANE EN ACCIJ
	385031192940

	 	HOUSEHOLD — OTHERS
	 	 	80709379	 	 	EUR
	 	 	350,000.00	 	 	OVAM
	385031192940

	 	INTERNAL GUARANTEE
CREDIT SUBSTITUTE
	 	 	1346160	 	 	GBP
	 	 	70,000.00	 	 	ING BANK NV UK
	385031192940

	 	PERFORMANCE BOND
	 	 	1344645	 	 	EUR
	 	 	360,000.00	 	 	OFF NAT FORETS
	385031192940

	 	INTERNATIONAL
OPERATIONS — SUNDRY
	 	 	1340717	 	 	GBP
	 	 	404,000.00	 	 	COM HV REV CUST
	385031192940

	 	INTERNATIONAL
OPERATIONS — SUNDRY
	 	 	1348992	 	 	EUR
	 	 	1,500.00	 	 	AGENSCHAP NL
	385031192940

	 	RENT
	 	 	10676367	 	 	EUR
	 	 	8,400.00	 	 	DUBOIS LUC
	385031192940

	 	SUNDRY
	 	 	1345279	 	 	EUR
	 	 	1,600,000.00	 	 	UCI SUISSE
















 






SCHEDULE 7.08(e)




TRANSACTIONS WITH AFFILIATES



None.















 








SCHEDULE 7.09




BURDENSOME AGREEMENTS



None.

















 





SCHEDULE 11.02




ADMINISTRATIVE AGENT’S OFFICE;

CERTAIN ADDRESSES FOR NOTICES




COMPANY

and LOAN PARTIES:

c/o Mohawk Industries, Inc.

160 S. Industrial Boulevard

Calhoun, Georgia 30701

Attention: James T. Lucke, General Counsel

Telephone: 706-624-2103

Telecopier: 706-625-3851

Electronic Mail: jim_lucke@mohawkind.com

Website Address: www.mohawkind.com

U.S. Taxpayer Identification Number(s): XXXXX




ADMINISTRATIVE AGENT:




Administrative Agent’s Office




(for payments and Requests for Credit Extensions):




Bank of America, N.A.

901 Main Street

Mail Code: TX1-492-14-14

Dallas, Texas 75202

Attention: Eric E. Evans

Telephone: 214-209-1634

Telecopier: 214-290-8313

Electronic Mail: eric.evans@baml.com




Bank of America, N.A.

New York, NY

ABA# XXXXX

Account No. (for Dollars): XXXXX

Attn: Credit Services

Ref: Mohawk Industries




Bank of America

London Branch

Swift Code: XXXXX


Account No. (for Euro): XXXXX

Ref: Mohawk




 









 





Bank of America

London Branch

Swift Code: XXXXX

Account No. (for Sterling): XXXXX

Ref: Mohawk




Bank of America

Sydney

Swift Code: XXXXX

Account No. (for Australian Dollars): XXXXX

Ref: Mohawk




Bank of America Canada

Toronto (Transit: 01312)

Swift Code: XXXXX

Account No. (for Canadian Dollars): XXXXX

Ref: Mohawk




Other Notices as Administrative Agent:




Bank of America, N.A.

Agency Management

901 Main Street

Mail Code: TX1-492-14-11

Dallas, Texas 75202

Attention: Ronaldo Naval

Telephone: 214-209-1162

Telecopier: 877-511-6124

Electronic Mail: ronaldo.naval@baml.com




L/C ISSUER:




Bank of America, N.A.

Trade Operations

1 Fleet Way

Mail Code: PA6-580-02-30

Scranton, PA 18507

Attention: John P. Yzeik

Telephone: 570-330-4315

Telecopier: 570-330-4186

Electronic Mail: john.p.yzeik@baml.com




 









 





SWING LINE LENDER:




Domestic in US Dollars




Bank of America, N.A.

901 Main Street

Mail Code: TX1-492-14-14

Dallas, Texas 75202

Attention: Eric E. Evans

Telephone: 214-209-1634

Telecopier: 214-290-8313

Electronic Mail: eric.evans@baml.com




Bank of America, N.A.

New York, NY

ABA # XXXXX

Account No. (for Dollars): XXXXX

Attn: Credit Services

Ref: Mohawk Industries




Foreign




Banc of America Securities Limited,

2 King Edward Street,

London, EC1A 1HQ

United Kingdom

Attention: Adi Khambata/Dovir Miah, Loan Service

Tel: +44 208 695 3389/+44 208 313 2503

Fax: +44 208 313 2149

Email: emealoanservicebromley@bankofamerica.com




	 	 	 	 	 	 	 	 	 
	Currency	 	Payment Instructions	 	Swift Code	 	Account Number
	EUR

	 	Pay: Bank Of America
N.A., London Branch
Credit: Banc of America
Securities Limited
	 	XXXXX
XXXXX	 	 	XXXXX	 
	 
	 	 	 	 	 	 	 	 
	USD

	 	Pay: Bank Of America New
York 


Favour: Bank Of America
NA, London Branch


Credit: Banc of America
Securities Limited
	 	XXXXX
XXXXX
XXXXX
XXXXX	 	 	XXXXX	 
	 
	 	 	 	 	 	 	 	 
	GBP

	 	Pay: Bank Of America
NA, London Branch
Credit: Banc of America
Securities Limited
	 	XXXXX
XXXXX	 	 	XXXXX	 







 











 








EXHIBIT A




FORM OF COMMITTED LOAN NOTICE




Date: ___________, _____



To:      Bank of America, N.A., as Administrative Agent



Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement, dated as of July 8, 2011 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among MOHAWK
INDUSTRIES, INC., a Delaware corporation (the “Company”), MOHAWK UNILIN INTERNATIONAL B.V.,
a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid)
incorporated under the laws of the Netherlands, having its official seat (statutaire zetel) in
Oisterwijk, the Netherlands and its office at Beneluxstraat 1 (5061 KD) Oisterwijk, the
Netherlands,registered with the Dutch Trade Register of the Chambers of Commerce under
number 17229715, MOHAWK FOREIGN HOLDINGS, S.À R.L., a company organized and existing under the laws
of Luxembourg as a société a responsibilité limitée, MOHAWK INTERNATIONAL HOLDINGS, S.À R.L., a
company organized and existing under the laws of Luxembourg as a société a responsibilité limitée,
UNILIN B.V.B.A., a private limited liability company (besloten vennootschap met beperkte
aansprakelijkheid) organized under the laws of Belgium, the Designated Borrowers from time to time
party thereto, the Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent, Swing Line Lender and a L/C Issuer.



     The Company hereby requests, on behalf of [APPLICABLE BORROWER] (select one):



			
	 	 	 
	o A Committed Borrowing
	 	o A conversion of Committed Loans or
continuation of Eurocurrency Rate Loans







	 	1.	 	On ________________________ (a Business Day).
	 
	 	2.	 	In the amount of ________________________.
	 
	 	3.	 	Comprised of ________________________.
	 	 	 	           
             
      [Type of Committed Loan requested]
	 
	 	4.	 	In the following currency: ________________________
	 
	 	5.	 	For Eurocurrency Rate Loans: with an Interest Period of _____ months.





     The Committed Borrowing, if any, requested herein complies with the provisos to the first
sentence of Section 2.01 of the Agreement.






 









 








	 	 	 	 	 
	 	MOHAWK INDUSTRIES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 











 





EXHIBIT B




FORM OF SWING LINE LOAN NOTICE




     Date: ___________, _____




	To: 	 	 Bank of America, N.A., as Swing Line Lender
	 
	 	 	Bank of America, N.A., as Administrative Agent




Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement, dated as of July 8, 2011 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among MOHAWK
INDUSTRIES, INC., a Delaware corporation (the “Company”), MOHAWK UNILIN INTERNATIONAL B.V.,
a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid)
incorporated under the laws of the Netherlands, having its official seat (statutaire zetel) in
Oisterwijk, the Netherlands and its office at Beneluxstraat 1 (5061 KD) Oisterwijk, the
Netherlands, registered with the Dutch Trade Register of the Chambers of Commerce under
number 17229715, MOHAWK FOREIGN HOLDINGS, S.À R.L., a company organized and existing under the laws
of Luxembourg as a société a responsibilité limitée, MOHAWK INTERNATIONAL HOLDINGS, S.À R.L., a
company organized and existing under the laws of Luxembourg as a société a responsibilité limitée,
UNILIN B.V.B.A., a private limited liability company (besloten vennootschap met beperkte
aansprakelijkheid) organized under the laws of Belgium, the Designated Borrowers from time to time
party thereto, the Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent, Swing Line Lender and a L/C Issuer.




	 	 	The undersigned hereby requests a Swing Line Loan:






	 	1.


2.	 	On           
            
             
               
               
                (a Business Day).




In the amount of $                                        .





     The Swing Line Borrowing requested herein complies with the requirements of the provisos to
the first sentence of Section 2.04(a) of the Agreement.



 









 





	 	 	 	 	 
	 	MOHAWK INDUSTRIES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



EXHIBIT C




FORM OF NOTE




                                                            





     FOR VALUE RECEIVED, each of the undersigned (each a “Borrower”) hereby promises to pay
to _____________________ or registered assigns (the “Lender”), in accordance with the
provisions of the Agreement (as hereinafter defined), the principal amount of each Loan from time
to time made by the Lender to such Borrower under that certain Credit Agreement, dated as of July
8, 2011 (as amended, restated, extended, supplemented or otherwise modified in writing from time to
time, the “Agreement;” the terms defined therein being used herein as therein defined),
among MOHAWK INDUSTRIES, INC., a Delaware corporation (the “Company”), MOHAWK UNILIN
INTERNATIONAL B.V., a private limited liability company (besloten vennootschap met beperkte
aansprakelijkheid) incorporated under the laws of the Netherlands, having its official seat
(statutaire zetel) in Oisterwijk, the Netherlands and its office at Beneluxstraat 1 (5061 KD)
Oisterwijk, the Netherlands, registered with the Dutch Trade Register of the Chambers of
Commerce under number 17229715, MOHAWK FOREIGN HOLDINGS, S.À R.L., a company organized and existing
under the laws of Luxembourg as a société a responsibilité limitée, MOHAWK INTERNATIONAL HOLDINGS,
S.À R.L., a company organized and existing under the laws of Luxembourg as a société a
responsibilité limitée, UNILIN B.V.B.A., a private limited liability company (besloten vennootschap
met beperkte aansprakelijkheid) organized under the laws of Belgium, the Designated Borrowers from
time to time party thereto, the Lenders from time to time party thereto, and Bank of America, N.A.,
as Administrative Agent, Swing Line Lender and a L/C Issuer.



     Each Borrower promises to pay interest on the unpaid principal amount of each Loan from the
date of such Loan until such principal amount is paid in full, at such interest rates and at such
times as provided in the Agreement. Except as otherwise provided in Section 2.04(f) of the
Agreement with respect to Swing Line Loans, all payments of principal and interest shall be made to
the Administrative Agent for the account of the Lender in the currency in which such Committed Loan
was denominated and in Same Day Funds at the Administrative Agent’s Office for such currency. If
any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be
paid upon demand, from the due date thereof until the date of actual payment (and before as well as
after judgment) computed at the per annum rate set forth in the Agreement.



     This Note is one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and conditions provided
therein. This Note is also entitled to the benefits of the Domestic Guaranty and the Foreign
Guaranty, as applicable, and is secured by the Collateral. Upon the occurrence and continuation of
one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid
on this Note shall become, or may be declared to be, immediately due and payable all as provided in
the Agreement. Loans made by the Lender shall be evidenced by one or more loan accounts or records
maintained by the Lender in the ordinary course of business. The Lender may also attach schedules
to this Note and endorse thereon the date, amount, currency and maturity of its Loans and payments
with respect thereto.



     Each Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this Note.



 









 





     THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.



	 	 	 	 	 
	 	MOHAWK INDUSTRIES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOHAWK UNILIN INTERNATIONAL B.V.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOHAWK FOREIGN HOLDINGS, S.À R.L.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOHAWK INTERNATIONAL HOLDINGS,

S.À R.L.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	UNILIN B.V.B.A.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



LOANS AND PAYMENTS WITH RESPECT THERETO




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Amount of Principal	 	Outstanding	 	 
	 	 	 	 	Currency and Amount	 	End of Interest	 	or Interest Paid	 	Principal Balance	 	 
	Date	 	Type of Loan Made	 	of Loan Made	 	Period	 	This Date	 	This Date	 	Notation Made By
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 










 









 








EXHIBIT D




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date: ________,





	To: Bank of America, N.A., as Administrative Agent





Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement, dated as of July 8, 2011 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among MOHAWK
INDUSTRIES, INC., a Delaware corporation (the “Company”), MOHAWK UNILIN INTERNATIONAL B.V.,
a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid)
incorporated under the laws of the Netherlands, having its official seat (statutaire zetel) in
Oisterwijk, the Netherlands and its office at Beneluxstraat 1 (5061 KD) Oisterwijk, the
Netherlands, registered with the Dutch Trade Register of the Chambers of Commerce under
number 17229715, MOHAWK FOREIGN HOLDINGS, S.À. R.L., a company organized and existing under the
laws of Luxembourg as a société a responsibilité limitée, MOHAWK INTERNATIONAL HOLDINGS, S.À R.L.,
a company organized and existing under the laws of Luxembourg as a société a responsibilité
limitée, UNILIN B.V.B.A., a private limited liability company (besloten vennootschap met beperkte
aansprakelijkheid) organized under the laws of Belgium, certain other Wholly Owned Foreign
Subsidiaries of the Company that are Restricted Subsidiaries that become party hereto pursuant to
Section 2.14 of the Agreement (each a “Designated Borrower” and, collectively, with
Mohawk BV, Mohawk Foreign, Mohawk International and Unilin, the “Foreign Borrowers” and
together with the Company, the “Borrowers”), the Lenders from time to time party thereto,
and Bank of America, N.A., as Administrative Agent, Swing Line Lender and a L/C Issuer.



     The undersigned, solely in his/her capacity as a Responsible Officer of the Company and not in
his/her individual capacity, hereby certifies as of the date hereof that he/she is the
               
               
               
               
of the
Company, and that, as such, he/she is authorized to execute and deliver this Certificate to the
Administrative Agent on the behalf of the Company, and that:



     [Use following paragraph 1 for fiscal year-end financial statements]



     1. The Company has delivered the year-end audited financial statements required by Section
6.01(a) of the Agreement for the fiscal year of the Company ended as of the above date,
together with the report and opinion of an independent certified public accountant required by such
section.



     [Use following paragraph 1 for fiscal quarter-end financial statements]



     1. The Company has delivered the unaudited financial statements required by Section
6.01(b) of the Agreement for the fiscal quarter of the Company ended as of the above date.
Such financial statements fairly present in all material respects the financial condition, results
of operations and cash flows of the Company and its Subsidiaries in accordance with GAAP, subject
only to normal year-end audit adjustments and the absence of footnotes.



 









 





     2. The undersigned has reviewed the terms of the Agreement and has made, or has caused to be
made under his/her supervision, a review in reasonable detail of the transactions and condition
(financial or otherwise) of the Company during the accounting period covered by such financial
statements.



     3. A review of the activities of the Company during such fiscal period has been made under the
supervision of the undersigned with a view to determining whether during such fiscal period the
Company performed and observed all its Obligations under the Loan Documents, and



[select one:]




     [to the best knowledge of the undersigned, during such fiscal period the Company performed and
observed each covenant and condition of the Loan Documents applicable to it, and no Default has
occurred and is continuing.]



—or—




     [to the best knowledge of the undersigned, during such fiscal period the following covenants
or conditions have not been performed or observed and the following is a list of each such Default
and its nature and status:]



     4. The representations and warranties of (i) the Borrowers contained in Article V of
the Agreement and (ii) each Loan Party contained in each other Loan Document or in any document
furnished at any time under or in connection with the Loan Documents, are true and correct in all
material respects (or, if qualified by materiality or Material Adverse Effect, in all respects) on
and as of the date hereof, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct as of such earlier
date, and except that for purposes of this Certificate, the representations and warranties
contained in subsections (a) and (b) of Section 5.05 of the Agreement shall be deemed to
refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of
Section 6.01 of the Agreement, including the statements in connection with which this
Certificate is delivered.



     5. The financial covenant analyses, calculations and information set forth on Schedules
1, 2, 3 and 4 attached hereto are true and accurate on and as of the
date of this Certificate.




IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of                                        ,                     .



	 	 	 	 	 
	 	MOHAWK INDUSTRIES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



SCHEDULES




[To be provided by the Company]






 









 








EXHIBIT E




ASSIGNMENT AND ASSUMPTION





     This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [the][each]1 Assignor
identified in item 1 below ([the][each, an] “Assignor”) and [the][each]2
Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and
agreed that the rights and obligations of [the Assignors][the Assignees]3 hereunder are
several and not joint.] 4 Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (the “Credit Agreement”),
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and
Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth herein in full.



     For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and
assumes from [the Assignor][the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’]
rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under
the Credit Agreement and any other documents or instruments delivered pursuant thereto to the
extent related to the amount and percentage interest identified below of all of such outstanding
rights and obligations of [the Assignor][the respective Assignors] under the respective facilities
identified below (including, without limitation, the Letters of Credit and the Swing Line Loans
included in such facilities5) and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its
capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)]
against any Person, whether known or unknown, arising under or in connection with the Credit
Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions
governed thereby or in any way based on or related to any of the foregoing, including, but not
limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims
at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i)
above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee
pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an]
“Assigned Interest”). Each such sale and assignment is without recourse to [the][any]
Assignor and, except as expressly provided in this Assignment and Assumption, without
representation or warranty by [the][any] Assignor.



	 	 	 	 	 

	1.      Assignor[s]:

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 








 




			
	1	 	For bracketed language here and elsewhere in
this form relating to the Assignor(s), if the assignment is from a single
Assignor, choose the first bracketed language. If the assignment is from
multiple Assignors, choose the second bracketed language.
	 
	2	 	For bracketed language here and elsewhere in
this form relating to the Assignee(s), if the assignment is to a single
Assignee, choose the first bracketed language. If the assignment is to
multiple Assignees, choose the second bracketed language.
	 
	3	 	Select as appropriate.
	 
	4	 	Include bracketed language if there are
either multiple Assignors or multiple Assignees.
	 
	5	 	Include all applicable subfacilities.




 









 










	 	 	 	 	 

	2.      Assignee[s]:

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 






     [for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]


3. Borrowers: MOHAWK INDUSTRIES, INC., a Delaware corporation, MOHAWK UNILIN INTERNATIONAL
B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid)
incorporated under the laws of the Netherlands, having its official seat (statutaire zetel) in
Oisterwijk, the Netherlands and its office at Beneluxstraat 1 (5061 KD) Oisterwijk, the
Netherlands, registered with the Dutch Trade Register of the Chambers of Commerce under
number 17229715, MOHAWK FOREIGN HOLDINGS, S.À R.L., a company organized and existing under the laws
of Luxembourg as a société a responsibilité limitée, MOHAWK INTERNATIONAL HOLDINGS, S.À R.L., a
company organized and existing under the laws of Luxembourg as a société a responsibilité limitée,
UNILIN B.V.B.A., a private limited liability company (besloten vennootschap met beperkte
aansprakelijkheid) organized under the laws of Belgium and the Designated Borrowers from time to
time party to the Credit Agreement.



4. Administrative Agent: Bank of America, N.A., as the administrative agent under the
Credit Agreement



5. Credit Agreement: Credit Agreement, dated as of July 8, 2011, among the Borrowers, the
Designated Borrowers from time to time party thereto, the Lenders from time to time party thereto,
and Bank of America, N.A., as Administrative Agent, Swing Line Lender and a L/C Issuer.



6. Assigned Interest[s]:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Aggregate Amount	 	Amount of	 	Percentage	 	 
	 	 	 	 	 	 	of	 	Commitment	 	Assigned of	 	 
	 	 	 	 	Facility	 	Commitment/Loans	 	/Loans	 	Commitment/	 	CUSIP
	Assignor[s]6	 	Assignee[s]7	 	Assigned8	 	for all Lenders9	 	Assigned	 	Loans10	 	Number
	 

	 	 	 	 

	 	$ 

	 	$ 

	 	  
	%  	 








 




			
	6	 	List each Assignor, as appropriate.
	 
	7	 	List each Assignee, as appropriate.
	 
	8	 	Fill in the appropriate terminology for the
types of facilities under the Credit Agreement that are being assigned under
this Assignment.
	 
	9	 	Amounts in this column and in the column
immediately to the right to be adjusted by the counterparties to take into
account any payments or prepayments made between the Trade Date and the
Effective Date.
	 
	10	 	Set forth, to at least 9 decimals, as a
percentage of the Commitment/Loans of all Lenders thereunder.




 









 










	 	 	 	 	 	 	 	 	 	 	 	 	 

	 

	 	 	 	 

	 	$ 

	 	$ 

	 	  
	%  	 
	 

	 	 	 	 

	 	$ 

	 	$ 

	 	 
	%  	 




[7. Trade Date: __________________]11



Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE
THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]




     The terms set forth in this Assignment and Assumption are hereby agreed to:



	 	 	 	 	 
	 	ASSIGNOR


[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 



	 	 	 	 	 
	 	ASSIGNEE


[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 


[Consented to and] 12 Accepted:




	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as



Administrative Agent

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 


[Consented to:]13



MOHAWK INDUSTRIES, INC.






 




			
	11	 	To be completed if the Assignor and the
Assignee intend that the minimum assignment amount is to be determined as of
the Trade Date.
	 
	12	 	To be added only if the consent of the
Administrative Agent is required by the terms of the Credit Agreement.
	 
	13	 	To be added only if the consent of the
Company and/or other parties (e.g. Swing Line Lender, L/C Issuer) is required
by the terms of the Credit Agreement.






 











 





	 	 	 	 	 
	 	 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



ANNEX 1 TO ASSIGNMENT AND ASSUMPTION




[___________________]14




STANDARD TERMS AND CONDITIONS FOR



ASSIGNMENT AND ASSUMPTION




     1. Representations and Warranties.



     1.1. Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such] Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or
any other Person obligated in respect of any Loan Document or (iv) the performance or observance by
the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.



     1.2. Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all the requirements to be an assignee under Section
11.06(b)(iii), (v)[,][and] (vi) [and (vii)] of the Credit Agreement (subject to
such consents, if any, as may be required under Section 11.06(b)(iii) of the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the
Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned
Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect
to decisions to acquire assets of the type represented by [the][such] Assigned Interest and either
it, or the Person exercising discretion in making its decision to acquire [the][such] Assigned
Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit
Agreement, and has received or has been accorded the opportunity to receive copies of the most
recent financial statements delivered pursuant to Section 6.01 thereof, as applicable, and
such other documents and information as it deems appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned
Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Assignment and Assumption and to purchase
[the][such] Assigned Interest, and (vii) if it is a Foreign Lender, attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit
Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will,
independently and





 




			
	14	 	Describe Credit Agreement at option of
Administrative Agent.




 









 









without reliance upon the Administrative Agent, [the][any] Assignor or any other
Lender, and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under the Loan Documents,
and (ii) it will perform in accordance with their terms all of the obligations which by the terms
of the Loan Documents are required to be performed by it as a Lender.




     2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of [the][each] Assigned Interest (including payments of principal,
interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to
but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued
from and after the Effective Date.



     3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.



 









 





 EXHIBIT F-1


FORM OF DOMESTIC GUARANTY

DOMESTIC GUARANTY




     THIS DOMESTIC GUARANTY (as amended, restated, extended, supplemented or otherwise modified
from time to time, this “Guaranty”), dated as of July 8, 2011, is made by Mohawk
Industries, Inc., a Delaware corporation (the “Company”), certain Subsidiaries of the
Company identified on the signature pages hereto and any Additional Guarantor (as defined below)
who may become a party to this Guaranty (such signatories and the Additional Guarantors,
collectively, the “Guarantors” and each individually, a “Guarantor”), in favor of
Bank of America, N.A., as Administrative Agent (in such capacity, the “Administrative
Agent”) for the ratable benefit of itself and the Secured Parties.



PRELIMINARY STATEMENTS




     Pursuant to that certain Credit Agreement dated as of the date hereof (as amended, restated,
extended, supplemented or otherwise modified from time to time, the “Credit Agreement”),
among the Company, Mohawk Unilin International B.V., a private limited liability company
incorporated under the laws of the Netherlands, Mohawk Foreign Holdings, S.à r.l., a limited
liability company organized under the laws of Luxembourg, Mohawk International Holdings, S.à r.l.,
a limited liability company organized under the laws of Luxembourg and Unilin B.V.B.A., a private
limited liability company organized under the laws of Belgium (collectively with the Company, the
“Borrowers”), the Lenders from time to time party thereto, the Administrative Agent, the
Swing Line Lender and each L/C Issuer, the Lenders and the L/C Issuers have agreed to make Credit
Extensions to the Borrowers upon the terms and subject to the conditions set forth therein.



     Each Guarantor will materially benefit from the Credit Extensions made and to be made under
the Credit Agreement.



     Each Guarantor is required to enter into this Guaranty pursuant to the terms of the Credit
Agreement.



     For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, and to induce the Administrative Agent and the other Secured
Parties to make their respective Credit Extensions and other financial accommodations under the
Loan Documents, the Secured Cash Management Agreements or the Secured Hedge Agreements, the
Guarantors hereby agree with the Administrative Agent, for the ratable benefit of the Secured
Parties, as follows:



     1. Defined Terms. Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed thereto in the Credit Agreement. The following terms when used herein shall
have the meanings set forth below:



     “Additional Guarantor” means each Person which hereafter becomes a Guarantor pursuant
to Section 19 hereof and Section 6.14 of the Credit Agreement.



     “Contribution Share” means, for any Guarantor in respect of any Excess Payment made by
any other Guarantor, the ratio (expressed as a percentage) as of the date of such Excess Payment of
(a) the amount by which the aggregate present fair salable value of all of its assets and
properties exceeds the amount of all debts and liabilities of such Guarantor (including probable
contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of
such Guarantor hereunder) to (b) the amount by which the aggregate present fair salable value of
all assets and other properties of the Guarantors other than the maker of such Excess Payment
exceeds the amount of all of the debts and liabilities (including probable contingent,
subordinated, unmatured, and unliquidated liabilities, but



 









 




excluding the obligations of the Guarantors hereunder) of the Guarantors other than the maker
of such Excess Payment; provided that for purposes of calculating the Contribution Shares
of the Guarantors in respect of any Excess Payment, any Guarantor that became a Guarantor
subsequent to the date of any such Excess Payment shall be deemed to have been a Guarantor on the
date of such Excess Payment and the financial information for such Guarantor as of the date such
Guarantor became a Guarantor shall be utilized for such Guarantor in connection with such Excess
Payment.




     “Excess Payment” means the amount paid by any Guarantor in excess of its Ratable Share
of any Guaranteed Obligations.



     “Guaranteed Obligations” has the meaning set forth in Section 2.



     “Ratable Share” means, for any Guarantor in respect of any payment of Guaranteed
Obligations, the ratio (expressed as a percentage) as of the date of such payment of Guaranteed
Obligations of (a) the amount by which the aggregate present fair salable value of all of its
assets and properties exceeds the amount of all debts and liabilities of such Guarantor (including
probable contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of such Guarantor hereunder) to (b) the amount by which the aggregate present fair
salable value of all assets and other properties of all of the Guarantors exceeds the amount of all
of the debts and liabilities (including probable contingent, subordinated, unmatured, and
unliquidated liabilities, but excluding the obligations of the Guarantors hereunder) of the
Guarantors; provided that for purposes of calculating the Ratable Shares of the Guarantors
in respect of any payment of Guaranteed Obligations, any Guarantor that became a Guarantor
subsequent to the date of any such payment shall be deemed to have been a Guarantor on the date of
such payment and the financial information for such Guarantor as of the date such Guarantor became
a Guarantor shall be utilized for such Guarantor in connection with such payment.



     2. Guaranty. Each Guarantor hereby, jointly and severally, with the other Guarantors,
absolutely and unconditionally guarantees, as a guaranty of payment and performance and not merely
as a guaranty of collection, prompt payment when due, whether at stated maturity, by required
prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of all
Obligations, including any and all existing and future indebtedness and liabilities of every kind,
nature and character, direct or indirect, absolute or contingent, liquidated or unliquidated,
voluntary or involuntary and whether for principal, interest, premiums, fees indemnities, damages,
costs, expenses or otherwise, of any Borrower to any Secured Party arising under the Credit
Agreement or any other Loan Document (including all renewals, extensions, amendments, restatements
and other modifications thereof and all reasonable costs, attorneys’ fees of outside counsel and
out-of-pocket expenses incurred by the Administrative Agent or any other Secured Party in
connection with the collection or enforcement thereof), and whether recovery upon such indebtedness
and liabilities may be or hereafter become unenforceable or shall be an allowed or disallowed claim
under any proceeding or case commenced by or against any Guarantor or any Borrower under any Debtor
Relief Law, and including interest that accrues after the commencement by or against any Borrower
of any proceeding under any Debtor Relief Laws (collectively, the “Guaranteed
Obligations”). The books and records of the Administrative Agent and the books and records of
each Secured Party showing the amount of the Guaranteed Obligations shall be admissible in evidence
in any action or proceeding, and shall be conclusive absent manifest error of the amount of the
Credit Extensions made by the Lenders to the Borrowers and the interest and payments thereon. This
Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the
Guaranteed Obligations or any instrument or agreement evidencing any Guaranteed Obligations, or by
the existence, validity, enforceability, perfection, non-perfection or extent of any collateral
therefor, or by any fact or circumstance relating to the Guaranteed Obligations which might
otherwise constitute a defense to the obligations of each Guarantor under this Guaranty, and such
Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way
relating to any or all of the foregoing.



2









 




Anything contained herein to the contrary notwithstanding, the obligations of each Guarantor
hereunder at any time shall be limited to an aggregate amount equal to the largest amount that
would not render its obligations hereunder subject to avoidance as a fraudulent transfer or
conveyance under Section 548 of the Bankruptcy Code (Title 11, United States Code) or any
comparable provisions of any similar federal or state law.




     3. No Setoff or Deductions; Taxes; Payments. Each Guarantor shall make all payments
hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes,
levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political
subdivision thereof or taxing or other authority therein (other than Excluded Taxes) unless such
Guarantor is compelled by applicable Law to make such deduction or withholding and each Guarantor
shall, jointly and severally, pay and indemnify each Secured Party for Taxes and Other Taxes. The
obligations of each Guarantor under this paragraph shall survive the payment in full of the
Guaranteed Obligations and termination of this Guaranty.



     4. Rights of Secured Parties. To the fullest extent not prohibited by applicable Law,
each Guarantor consents and agrees that the Secured Parties may, at any time and from time to time,
without notice or demand, and without affecting the enforceability or continuing effectiveness
hereof: (a) amend, extend, renew, compromise, discharge, accelerate or otherwise change the time
for payment or the terms of the Guaranteed Obligations or any part thereof, (b) take, hold,
exchange, enforce, waive, release, fail to perfect, sell, or otherwise dispose of any security for
the payment of this Guaranty or any Guaranteed Obligations, (c) apply such security and direct the
order or manner of sale thereof as the Secured Parties in their sole discretion may determine and
(d) release or substitute one or more of any endorsers or other guarantors of any of the Guaranteed
Obligations. Without limiting the generality of the foregoing, to the fullest extent not
prohibited by applicable Law, each Guarantor consents to the taking of, or failure to take, any
action which might in any manner or to any extent vary the risks of such Guarantor under this
Guaranty or which, but for this provision, might operate as a discharge of such Guarantor.



     5. Certain Waivers. To the fullest extent permitted by applicable Law, each Guarantor
waives (a) any defense arising by reason of any disability or other defense of any Borrower or any
other Guarantor, or the cessation from any cause whatsoever (including any act or omission of any
Secured Party) of the liability of any Borrower other than indefeasible payment and performance in
full of the Guaranteed Obligations, (b) any defense based on any claim that such Guarantor’s
obligations exceed or are more burdensome than those of any Borrower, (c) the benefit of any
statute of limitations affecting such Guarantor’s liability hereunder, (d) any right to require any
Secured Party to proceed against any Borrower, proceed against or exhaust any security for the
Guaranteed Obligations, or pursue any other remedy in any Secured Party’s power whatsoever, (e) any
benefit of and any right to participate in any security now or hereafter held by any Secured Party
and (f) any and all other defenses or benefits that may be derived from or afforded by applicable
Law limiting the liability of or exonerating guarantors or sureties. To the fullest extent not
prohibited by applicable Law, each Guarantor expressly waives all setoffs and counterclaims and all
presentments, demands for payment or performance, notices of nonpayment or nonperformance,
protests, notices of protest, notices of dishonor and all other notices or demands of any kind or
nature whatsoever with respect to the Guaranteed Obligations, and all notices of acceptance of this
Guaranty or of the existence, creation or incurrence of new or additional Guaranteed Obligations.



     6. Obligations Independent. The obligations of each Guarantor hereunder are those of
primary obligor, and not merely as surety, and are independent of the Guaranteed Obligations and
the obligations of any other Guarantor, and a separate action may be brought against such Guarantor
to enforce this Guaranty whether or not any Borrower or any other person or entity is joined as a
party.



3









 





     7. Subrogation. Each Guarantor shall not exercise any right of subrogation,
contribution, indemnity, reimbursement or similar rights with respect to any payments it makes
under this Guaranty until all of the Guaranteed Obligations and any amounts payable under this
Guaranty have been indefeasibly paid and performed in full and any commitments of each Secured
Party or facilities provided by each Secured Party with respect to the Guaranteed Obligations are
terminated. If any amounts are paid to any Guarantor in violation of the foregoing limitation,
then such amounts shall be held in trust for the benefit of the Secured Parties and shall forthwith
be paid to the Administrative Agent (for the benefit of itself and the other Secured Parties) to
reduce the amount of the Guaranteed Obligations, whether matured or unmatured.



     8. Contribution. Subject to Section 7, each Guarantor hereby agrees with each
other Guarantor that if any Guarantor shall make an Excess Payment, such Guarantor shall have a
right of contribution from each other Guarantor in an amount equal to such other Guarantor’s
Contribution Share of such Excess Payment. The payment obligations of any Guarantor under this
Section shall be subordinate and subject in right of payment to the Guaranteed Obligations until
such time as the Guaranteed Obligations have been indefeasibly paid and performed in full, and no
Guarantor shall exercise any right or remedy under this Section against any other Guarantor until
such Guaranteed Obligations have been indefeasibly paid and performed in full. Each Guarantor
recognizes and acknowledges that the rights to contribution arising hereunder shall constitute an
asset in favor of the party entitled to such contribution. This Section shall not be deemed to
affect any right of subrogation, indemnity, reimbursement or contribution that any Guarantor may
have under applicable Law against any Borrower in respect of any payment of Guaranteed Obligations.



     9. Termination; Reinstatement. This Guaranty is a continuing and irrevocable guaranty
of all Guaranteed Obligations now or hereafter existing and shall remain in full force and effect
until all Guaranteed Obligations and any other amounts payable under this Guaranty are indefeasibly
paid in full in cash (other than (i) contingent indemnification obligations as to which no claim
has been asserted and (ii) obligations and liabilities under Secured Cash Management Agreements and
Secured Hedge Agreements either (x) as to which arrangements satisfactory to the applicable Cash
Management Bank or Hedge Bank shall have been made or (y) notice has not been received by the
Administrative Agent from the applicable Cash Management Bank or Hedge Bank, as the case may be,
that amounts are due and payable under such Secured Cash Management Agreement or Secured Hedge
Agreement, as the case may be), the expiration or termination of all Letters of Credit (other than
Extended Letters of Credit and any other Letter of Credit the Outstanding Amount of which has been
Cash Collateralized or back-stopped by a letter of credit or other credit support in form and
substance reasonably satisfactory to the Administrative Agent and the applicable L/C Issuer) and
any commitments of each Secured Party or facilities provided by each Secured Party with respect to
the Guaranteed Obligations are terminated. Notwithstanding the foregoing, this Guaranty shall
continue in full force and effect or be revived, as the case may be, if any payment by or on behalf
of any Borrower or any Guarantor is made, or any Secured Party exercises its right of setoff, in
respect of the Guaranteed Obligations and such payment or the proceeds of such setoff or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or
required (including pursuant to any settlement entered into by any Secured Party in its discretion)
to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any
Debtor Relief Laws or otherwise, all as if such payment had not been made or such setoff had not
occurred and whether or not any Secured Party is in possession of or has released this Guaranty and
regardless of any prior revocation, rescission, termination or reduction. The obligations of each
Guarantor under this paragraph shall survive termination of this Guaranty.



     10. Subordination. Each Guarantor hereby subordinates the payment of all obligations
and indebtedness of any Borrower owing to such Guarantor, whether now existing or hereafter
arising, including but not limited to any obligation of any Borrower to such Guarantor as subrogee
of any Secured



4









 




Party or resulting from such Guarantor’s performance under this Guaranty, to the indefeasible
payment in full in cash of all Guaranteed Obligations; provided that any Borrower may make
ordinary course payments pursuant to such Borrower’s and its Subsidiaries’ cash management systems
unless an Event of Default has occurred and is continuing. If the Administrative Agent so requests
when an Event of Default has occurred and is continuing, any such obligation or indebtedness of any
Borrower to any Guarantor shall be enforced and performance received by such Guarantor as trustee
for the Administrative Agent and the proceeds thereof, as well as any other amounts received by
such Guarantor in violation of this Section, shall be paid over to the Administrative Agent on
account of the Guaranteed Obligations, but without reducing or affecting in any manner the
liability of such Guarantor under this Guaranty.




     11. Stay of Acceleration. In the event that acceleration of the time for payment of
any of the Guaranteed Obligations is stayed, in connection with any case commenced by or against
any Borrower or any Guarantor under any Debtor Relief Laws, or otherwise, all such amounts shall
nonetheless be payable by such Guarantor immediately upon demand by the Administrative Agent.



     12. Condition of Borrowers. Each Guarantor acknowledges and agrees that it has the
sole responsibility for, and has adequate means of, obtaining from the Borrowers and any other
Guarantor such information concerning the financial condition, business and operations of the
Borrowers and any such other guarantor as such Guarantor requires, and that no Secured Party has a
duty, and such Guarantor is not relying on any Secured Party at any time, to disclose to such
Guarantor any information relating to the business, operations or financial condition of the
Borrowers or any other guarantor (the guarantor waiving any duty on the part of any Secured Parties
to disclose such information and any defense relating to the failure to provide the same).



     13. Representations and Warranties. Each Guarantor represents and warrants that each
representation and warranty contained in Article V of the Credit Agreement relating to such
Guarantor is true and correct as if made by such Guarantor herein.



     14. Amendments, Waivers and Consents. None of the terms or provisions of this
Guaranty may be waived, amended, supplemented or otherwise modified, nor any consent be given,
except in accordance with Section 11.01 of the Credit Agreement.



     15. Notices. All notices and communications hereunder shall be given to the addresses
and otherwise made in accordance with Section 11.02 of the Credit Agreement;
provided that notices and communications to the Guarantors shall be directed to the
Guarantors, at the address of the Company set forth in Section 11.02 of the Credit
Agreement.



     16. Expenses; Indemnification and Survival. The Guarantors shall, jointly and
severally, (a) pay all reasonable out-of-pocket expenses actually incurred by the Administrative
Agent and each other Secured Party and (b) indemnify each Indemnitee (which for purposes of this
Guaranty shall include, without limitation, all Secured Parties), in each case, to the extent any
Borrower would be required to do so pursuant to Section 11.04 of the Credit Agreement. The
obligations of the Guarantors under this paragraph shall survive the payment in full of the
Guaranteed Obligations and termination of this Guaranty in accordance with its terms.



     17. Right of Setoff; Governing Law; Submission to Jurisdiction; Venue; WAIVER OF JURY
TRIAL; Judgment Currency. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK. Without limiting the general applicability of the
foregoing and the terms of the other Loan Documents to this Guaranty and the parties hereto, the
terms of Sections 11.08, 11.14, 11.15 and 11.19 of the Credit
Agreement are incorporated herein by reference, mutatis mutandis, with each reference to the
“Borrowers” therein (whether express or



5









 




by reference to the Borrowers as a “party” thereto) being a reference to the Guarantors, and
the parties hereto agree to such terms.




     18. Counterparts; Electronic Execution. This Guaranty may be executed in counterparts
(and by different parties hereto in different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single contract. Delivery of an
executed counterpart of a signature page of this Guaranty by telecopy or other electronic imaging
means shall be effective as delivery of a manually executed counterpart of this Guaranty.



     19. Additional Guarantors. At any time after the date of this Guaranty, one or more
additional Persons may become a party hereto by executing and delivering to the Administrative
Agent a joinder agreement in form and substance reasonably satisfactory to the Administrative
Agent, pursuant to Section 6.14 of the Credit Agreement. Immediately upon such execution
and delivery of such joinder agreement, and without any further action, each such additional Person
will become a party to this Guaranty as a “Guarantor” and have all of the rights and obligations of
a Guarantor hereunder and this Guaranty shall be deemed amended by such joinder agreement.



     20. Miscellaneous. No failure by the Administrative Agent or any Secured Party to
exercise, and no delay in exercising, any right, remedy or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, remedy or power hereunder
preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein provided are cumulative and not exclusive of any remedies provided by law or
in equity. The unenforceability or invalidity of any provision of this Guaranty shall not affect
the enforceability or validity of any other provision herein. Unless otherwise agreed by the
Administrative Agent and each Guarantor in writing, this Guaranty is not intended to supersede or
otherwise affect any other guaranty now or hereafter given by any Guarantor or any other guarantor
for the benefit of the Secured Parties or any term or provision thereof.



     21. Acknowledgments. Each Guarantor hereby acknowledges that (a) it has been advised
by counsel in the negotiation, execution and delivery of this Guaranty and the other Loan Documents
to which it is a party and (b) it has received a copy of the Credit Agreement and the other Loan
Documents and has reviewed and understands the same.



     22. Severability. If any provision of this Guaranty is held to be illegal, invalid or
unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this
Guaranty shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith
negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.



     23. Titles and Captions. Titles and captions of Articles, Sections and subsections in
this Guaranty are for convenience only, and neither limit nor amplify the provisions of this
Guaranty.



     24. USA PATRIOT Act. Each Secured Party that is subject to the USA PATRIOT Act (Title
III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”) and the
Administrative Agent (for itself and not on behalf of any Secured Party) hereby notifies the
Guarantors that pursuant to the requirements of the Act, it is required to obtain, verify and
record information that identifies each Guarantor, which information includes the name and address
of each Guarantor and other information that will allow such Secured Party or the Administrative
Agent, as applicable, to identify each Guarantor in accordance with the Act. Each Guarantor shall,
promptly following a request by the Administrative



6









 




Agent or any Secured Party, provide all documentation and other information that the
Administrative Agent or such Secured Party requests in order to comply with its ongoing obligations
under applicable “know your customer” and anti-money laundering rules and regulations, including
the Act.




     25. Successors and Assigns. The provisions of this Guaranty shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and permitted assigns;
except that no Guarantor may assign or otherwise transfer any of its rights or obligations under
this Guaranty without the prior written consent of the Administrative Agent and the other Secured
Parties (in accordance with the Credit Agreement).



     26. ENTIRE AGREEMENT. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.



[Signature Pages Follow]






7









 








     IN WITNESS WHEREOF, each of the parties hereto has caused this Guaranty to be duly executed as
of the date first above written.



	 	 	 	 	 
	GUARANTORS: 	 MOHAWK INDUSTRIES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOHAWK CARPET, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOHAWK INTERNATIONAL HOLDINGS (DE)

CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	UNILIN FLOORING NC, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DAL-TILE INTERNATIONAL INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DAL-TILE GROUP INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Mohawk Industries, Inc.

Domestic Guaranty

Signature Page



 









 





	 	 	 	 	 
	 	DAL-TILE CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DAL-TILE DISTRIBUTION, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DAL-TILE SERVICES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DAL-TILE I, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DAL-TILE SHARED SERVICES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DAL-ELIT, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 
	 
	 	MOHAWK ESV, INC.
 	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 
	 



Mohawk Industries, Inc.

Domestic Guaranty

Signature Page



 









 





	 	 	 	 	 
	 	MOHAWK COMMERCIAL, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ALADDIN MANUFACTURING CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	WAYN-TEX LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOHAWK CARPET DISTRIBUTION, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOHAWK CARPET TRANSPORTATION OF 

GEORGIA, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOHAWK RESOURCES, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOHAWK SERVICING, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Mohawk Industries, Inc.

Domestic Guaranty

Signature Page



 









 





	 	 	 	 	 
	 	MOHAWK FACTORING, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Mohawk Industries, Inc.

Domestic Guaranty

Signature Page



 









 





	 	 	 	 	 
	 	Acknowledged and accepted:




BANK OF AMERICA, N.A.,

as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Mohawk Industries, Inc.

Domestic Guaranty

Signature Page




 











 





EXHIBIT F-2




FORM OF FOREIGN GUARANTY



FOREIGN GUARANTY




     THIS FOREIGN GUARANTY (as amended, restated, extended, supplemented or otherwise modified from
time to time, this “Guaranty”), dated as of July 8, 2011, is made by certain Foreign
Subsidiaries of Mohawk Industries, Inc., a Delaware corporation (the “Company”) identified
on the signature pages hereto and any Additional Guarantor (as defined below) who may become a
party to this Guaranty (such signatories and the Additional Guarantors, collectively, the
“Guarantors” and each individually, a “Guarantor”), in favor of Bank of America,
N.A., as Administrative Agent (in such capacity, the “Administrative Agent”) for the
ratable benefit of itself and the Secured Parties.



PRELIMINARY STATEMENTS




     Pursuant to that certain Credit Agreement dated as of the date hereof (as amended, restated,
extended, supplemented or otherwise modified from time to time, the “Credit Agreement”),
among the Company, Mohawk Unilin International B.V., a private limited liability company (besloten
vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands
registered with the Dutch Trade Register of the Chambers of Commerce under number 17229715, Mohawk
Foreign Holdings, S.à r.l., a limited liability company (société a responsibilité limitée)
organized and existing under the laws of the Grand Duchy of Luxembourg having its registered at
10B, Rue des Mérovingiens, L-8070 Bertrange, Grand Duchy of Luxembourg, registered with the
Luxembourg Register of Commerce and Companies under number B-147.820 and having a corporate capital
of EUR 72,995,850, Mohawk International Holdings, S.à r.l., a limited liability company (société a
responsibilité limitée) organized and existing under the laws of Luxembourg having its registered
at 10B, Rue des Mérovingiens, L-8070 Bertrange, Grand Duchy of Luxembourg, registered with the
Luxembourg Register of Commerce and Companies under number B-110.608 and having a corporate capital
of EUR 12,550 and Unilin B.V.B.A., a private limited liability company (besloten vennootschap met
beperkte aansprakelijkheid) organized under the laws of Belgium (collectively, the “Foreign
Borrowers” and together with the Company, the “Borrowers”), the Lenders from time to
time party thereto, the Administrative Agent, the Swing Line Lender and each L/C Issuer, the
Lenders and the L/C Issuers have agreed to make Credit Extensions to the Borrowers upon the terms
and subject to the conditions set forth therein.



     Each Guarantor will materially benefit from the Credit Extensions made and to be made under
the Credit Agreement.



     Each Guarantor is required to enter into this Guaranty pursuant to the terms of the Credit
Agreement.



     For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, and to induce the Administrative Agent and the other Secured
Parties to make their respective Credit Extensions and other financial accommodations under the
Loan Documents, the Secured Cash Management Agreements or the Secured Hedge Agreements, the
Guarantors hereby agree with the Administrative Agent, for the ratable benefit of the Secured
Parties, as follows:



     1. Defined Terms. Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed thereto in the Credit Agreement. The following terms when used herein shall
have the meanings set forth below:



     “Additional Guarantor” means each Person which hereafter becomes a Guarantor pursuant
to Section 19 hereof and Section 6.14 of the Credit Agreement.



 









 





     “Contribution Share” means, for any Guarantor in respect of any Excess Payment made by
any other Guarantor, the ratio (expressed as a percentage) as of the date of such Excess Payment of
(a) the amount by which the aggregate present fair salable value of all of its assets and
properties exceeds the amount of all debts and liabilities of such Guarantor (including probable
contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of
such Guarantor hereunder) to (b) the amount by which the aggregate present fair salable value of
all assets and other properties of the Guarantors other than the maker of such Excess Payment
exceeds the amount of all of the debts and liabilities (including probable contingent,
subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of the
Guarantors hereunder) of the Guarantors other than the maker of such Excess Payment;
provided that for purposes of calculating the Contribution Shares of the Guarantors in
respect of any Excess Payment, any Guarantor that became a Guarantor subsequent to the date of any
such Excess Payment shall be deemed to have been a Guarantor on the date of such Excess Payment and
the financial information for such Guarantor as of the date such Guarantor became a Guarantor shall
be utilized for such Guarantor in connection with such Excess Payment.



     “Dutch Guarantors” means Mohawk Unilin International B.V. and any Additional Guarantor
that is incorporated under the laws of the Netherlands.



     “Excess Payment” means the amount paid by any Guarantor in excess of its Ratable Share
of any Guaranteed Obligations.



     “Guaranteed Obligations” has the meaning set forth in Section 2.



     “Irish Guarantors” means Flooring Industries Limited and any Additional Guarantor that
is incorporated under the laws of Ireland.



     “Ratable Share” means, for any Guarantor in respect of any payment of Guaranteed
Obligations, the ratio (expressed as a percentage) as of the date of such payment of Guaranteed
Obligations of (a) the amount by which the aggregate present fair salable value of all of its
assets and properties exceeds the amount of all debts and liabilities of such Guarantor (including
probable contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of such Guarantor hereunder) to (b) the amount by which the aggregate present fair
salable value of all assets and other properties of all of the Guarantors exceeds the amount of all
of the debts and liabilities (including probable contingent, subordinated, unmatured, and
unliquidated liabilities, but excluding the obligations of the Guarantors hereunder) of the
Guarantors; provided that for purposes of calculating the Ratable Shares of the Guarantors
in respect of any payment of Guaranteed Obligations, any Guarantor that became a Guarantor
subsequent to the date of any such payment shall be deemed to have been a Guarantor on the date of
such payment and the financial information for such Guarantor as of the date such Guarantor became
a Guarantor shall be utilized for such Guarantor in connection with such payment.



     2. Guaranty. Each Guarantor hereby, jointly and severally, with the other Guarantors,
absolutely and unconditionally guarantees, as a guaranty of payment and performance and not merely
as a guaranty of collection, prompt payment when due, whether at stated maturity, by required
prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of all Foreign
Obligations, including any and all existing and future indebtedness and liabilities of every kind,
nature and character, direct or indirect, absolute or contingent, liquidated or unliquidated,
voluntary or involuntary and whether for principal, interest, premiums, fees indemnities, damages,
costs, expenses or otherwise, of any Foreign Borrower to any Secured Party arising under the Credit
Agreement or any other Loan Document (including all renewals, extensions, amendments, restatements
and other modifications thereof and all reasonable costs, attorneys’ fees of outside counsel and
out-of-pocket expenses incurred by the Administrative Agent or any other Secured Party in
connection with the collection or enforcement



2









 





thereof), and whether recovery upon such indebtedness and liabilities may be or hereafter
become unenforceable or shall be an allowed or disallowed claim under any proceeding or case
commenced by or against any Guarantor or any Foreign Borrower under any Debtor Relief Law, and
including interest that accrues after the commencement by or against any Foreign Borrower of any
proceeding under any Debtor Relief Laws (collectively, the “Guaranteed Obligations”). The
books and records of the Administrative Agent and the books and records of each Secured Party
showing the amount of the Guaranteed Obligations shall be admissible in evidence in any action or
proceeding, and shall be conclusive absent manifest error of the amount of the Credit Extensions
made by the Lenders to the Foreign Borrowers and the interest and payments thereon. This Guaranty
shall not be affected by the genuineness, validity, regularity or enforceability of the Guaranteed
Obligations or any instrument or agreement evidencing any Guaranteed Obligations, or by the
existence, validity, enforceability, perfection, non-perfection or extent of any collateral
therefor, or by any fact or circumstance relating to the Guaranteed Obligations which might
otherwise constitute a defense to the obligations of each Guarantor under this Guaranty, and such
Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way
relating to any or all of the foregoing. Anything contained herein to the contrary
notwithstanding, the obligations of each Guarantor hereunder at any time shall be limited to an
aggregate amount equal to the largest amount that would not render its obligations hereunder
subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy
Code (Title 11, United States Code) or any comparable provisions of any similar federal or state
law. Notwithstanding any other provision of this Guaranty or any other Loan Document, the
guarantee, indemnity and other obligations of (i) any Irish Guarantor expressed to be assumed in
this Guaranty shall be deemed not to be and not to have been assumed by such Irish Guarantor to the
extent that the same would constitute (or would have constituted) unlawful financial assistance
within the meaning of section 60 of the Irish Companies Act 1963 (as amended) or any other
applicable financial assistance rules of any relevant jurisdiction (the “Irish
Prohibition”) and the provisions of this Guaranty and the other Loan Documents shall be
construed accordingly and (ii) any Dutch Guarantor or any direct or indirect Subsidiary of such
Dutch Guarantor expressed to be assumed under this Guaranty or any other Loan Document shall be
deemed not to be and not to have been assumed by such Dutch Guarantor or direct or indirect
Subsidiary of such Dutch Guarantor to the extent that the same would constitute (or would have
constituted) unlawful financial assistance within the meaning of section 2:207(c) or 2:98(c) of the
Dutch Civil Code (the “Dutch Prohibition”). For the avoidance of doubt, it is expressly
acknowledged that (i) any such Irish Guarantor will continue to guarantee all Guaranteed
Obligations that do not constitute a violation of the Irish Prohibition and (ii) any such Dutch
Guarantor will continue to guarantee all Guaranteed Obligations that do not constitute a violation
of the Dutch Prohibition.




     3. No Setoff or Deductions; Taxes; Payments. Each Guarantor shall make all payments
hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes,
levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political
subdivision thereof or taxing or other authority therein (other than Excluded Taxes) unless such
Guarantor is compelled by applicable Law to make such deduction or withholding and each Guarantor
shall, jointly and severally, pay and indemnify each Secured Party for Taxes and Other Taxes. The
obligations of each Guarantor under this paragraph shall survive the payment in full of the
Guaranteed Obligations and termination of this Guaranty.



     4. Rights of Secured Parties. To the fullest extent not prohibited by applicable Law,
each Guarantor consents and agrees that the Secured Parties may, at any time and from time to time,
without notice or demand, and without affecting the enforceability or continuing effectiveness
hereof: (a) amend, extend, renew, compromise, discharge, accelerate or otherwise change the time
for payment or the terms of the Guaranteed Obligations or any part thereof, (b) take, hold,
exchange, enforce, waive, release, fail to perfect, sell, or otherwise dispose of any security for
the payment of this Guaranty or any Guaranteed



3









 





Obligations, (c) apply such security and direct the order or manner of sale thereof as the
Secured Parties in their sole discretion may determine and (d) release or substitute one or more of
any endorsers or other guarantors of any of the Guaranteed Obligations. Without limiting the
generality of the foregoing, to the fullest extent not prohibited by applicable Law, each Guarantor
consents to the taking of, or failure to take, any action which might in any manner or to any
extent vary the risks of such Guarantor under this Guaranty or which, but for this provision, might
operate as a discharge of such Guarantor.




     5. Certain Waivers. To the fullest extent permitted by applicable Law, each Guarantor
waives (a) any defense arising by reason of any disability or other defense of any Foreign Borrower
or any other Guarantor, or the cessation from any cause whatsoever (including any act or omission
of any Secured Party) of the liability of any Foreign Borrower other than indefeasible payment and
performance in full of the Guaranteed Obligations, (b) any defense based on any claim that such
Guarantor’s obligations exceed or are more burdensome than those of any Foreign Borrower, (c) the
benefit of any statute of limitations affecting such Guarantor’s liability hereunder, (d) any right
to require any Secured Party to proceed against any Foreign Borrower, proceed against or exhaust
any security for the Guaranteed Obligations, or pursue any other remedy in any Secured Party’s
power whatsoever, (e) any benefit of and any right to participate in any security now or hereafter
held by any Secured Party and (f) any and all other defenses or benefits that may be derived from
or afforded by applicable Law limiting the liability of or exonerating guarantors or sureties. To
the fullest extent not prohibited by applicable Law, each Guarantor expressly waives all setoffs
and counterclaims and all presentments, demands for payment or performance, notices of nonpayment
or nonperformance, protests, notices of protest, notices of dishonor and all other notices or
demands of any kind or nature whatsoever with respect to the Guaranteed Obligations, and all
notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or
additional Guaranteed Obligations.



     6. Obligations Independent. The obligations of each Guarantor hereunder are those of
primary obligor, and not merely as surety, and are independent of the Guaranteed Obligations and
the obligations of any other Guarantor, and a separate action may be brought against such Guarantor
to enforce this Guaranty whether or not any Foreign Borrower or any other person or entity is
joined as a party.



     7. Subrogation. Each Guarantor shall not exercise any right of subrogation,
contribution, indemnity, reimbursement or similar rights with respect to any payments it makes
under this Guaranty until all of the Guaranteed Obligations and any amounts payable under this
Guaranty have been indefeasibly paid and performed in full and any commitments of each Secured
Party or facilities provided by each Secured Party with respect to the Guaranteed Obligations are
terminated. If any amounts are paid to any Guarantor in violation of the foregoing limitation,
then such amounts shall be held in trust for the benefit of the Secured Parties and shall forthwith
be paid to the Administrative Agent (for the benefit of itself and the other Secured Parties) to
reduce the amount of the Guaranteed Obligations, whether matured or unmatured.



     8. Contribution. Subject to Section 7, each Guarantor hereby agrees with each
other Guarantor that if any Guarantor shall make an Excess Payment, such Guarantor shall have a
right of contribution from each other Guarantor in an amount equal to such other Guarantor’s
Contribution Share of such Excess Payment. The payment obligations of any Guarantor under this
Section shall be subordinate and subject in right of payment to the Guaranteed Obligations until
such time as the Guaranteed Obligations have been indefeasibly paid and performed in full, and no
Guarantor shall exercise any right or remedy under this Section against any other Guarantor until
such Guaranteed Obligations have been indefeasibly paid and performed in full. Each Guarantor
recognizes and acknowledges that the rights to contribution arising hereunder shall constitute an
asset in favor of the party entitled to such contribution. This Section shall not be deemed to
affect any right of subrogation,



4









 





indemnity, reimbursement or contribution that any Guarantor may have under applicable Law
against any Foreign Borrower in respect of any payment of Guaranteed Obligations. For the purposes
of this Section 8 and the definitions contained herein, each reference to “Guarantor” shall
include any other guarantor of the Foreign Obligations, whether under this Guaranty or otherwise.




     9. Termination; Reinstatement. This Guaranty is a continuing and irrevocable guaranty
of all Guaranteed Obligations now or hereafter existing and shall remain in full force and effect
until all Guaranteed Obligations and any other amounts payable under this Guaranty are indefeasibly
paid in full in cash (other than (i) contingent indemnification obligations as to which no claim
has been asserted and (ii) obligations and liabilities under Secured Cash Management Agreements and
Secured Hedge Agreements either (x) as to which arrangements satisfactory to the applicable Cash
Management Bank or Hedge Bank shall have been made or (y) notice has not been received by the
Administrative Agent from the applicable Cash Management Bank or Hedge Bank, as the case may be,
that amounts are due and payable under such Secured Cash Management Agreement or Secured Hedge
Agreement, as the case may be), the expiration or termination of all Letters of Credit (other than
Extended Letters of Credit and any other Letter of Credit the Outstanding Amount of which has been
Cash Collateralized or back-stopped by a letter of credit or other credit support in form and
substance reasonably satisfactory to the Administrative Agent and the applicable L/C Issuer) and
any commitments of each Secured Party or facilities provided by each Secured Party with respect to
the Guaranteed Obligations are terminated. Notwithstanding the foregoing, this Guaranty shall
continue in full force and effect or be revived, as the case may be, if any payment by or on behalf
of any Foreign Borrower or any Guarantor is made, or any Secured Party exercises its right of
setoff, in respect of the Guaranteed Obligations and such payment or the proceeds of such setoff or
any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by any Secured Party in its
discretion) to be repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Laws or otherwise, all as if such payment had not been made or
such setoff had not occurred and whether or not any Secured Party is in possession of or has
released this Guaranty and regardless of any prior revocation, rescission, termination or
reduction. The obligations of each Guarantor under this paragraph shall survive termination of
this Guaranty.



     10. Subordination. Each Guarantor hereby subordinates the payment of all obligations
and indebtedness of any Foreign Borrower owing to such Guarantor, whether now existing or hereafter
arising, including but not limited to any obligation of any Foreign Borrower to such Guarantor as
subrogee of any Secured Party or resulting from such Guarantor’s performance under this Guaranty,
to the indefeasible payment in full in cash of all Guaranteed Obligations; provided that
any Foreign Borrower may make ordinary course payments pursuant to such Foreign Borrower’s and its
Subsidiaries’ cash management systems unless an Event of Default has occurred and is continuing.
If the Administrative Agent so requests when an Event of Default has occurred and is continuing,
any such obligation or indebtedness of any Foreign Borrower to any Guarantor shall be enforced and
performance received by such Guarantor as trustee for the Administrative Agent and the proceeds
thereof, as well as any other amounts received by such Guarantor in violation of this Section,
shall be paid over to the Administrative Agent on account of the Guaranteed Obligations, but
without reducing or affecting in any manner the liability of such Guarantor under this Guaranty.



     11. Stay of Acceleration. In the event that acceleration of the time for payment of
any of the Guaranteed Obligations is stayed, in connection with any case commenced by or against
any Foreign Borrower or any Guarantor under any Debtor Relief Laws, or otherwise, all such amounts
shall nonetheless be payable by such Guarantor immediately upon demand by the Administrative Agent.



     12. Condition of Foreign Borrowers. Each Guarantor acknowledges and agrees that it
has the sole responsibility for, and has adequate means of, obtaining from the Foreign Borrowers
and any other



5









 





Guarantor such information concerning the financial condition, business and operations of the
Foreign Borrowers and any such other guarantor as such Guarantor requires, and that no Secured
Party has a duty, and such Guarantor is not relying on any Secured Party at any time, to disclose
to such Guarantor any information relating to the business, operations or financial condition of
the Foreign Borrowers or any other guarantor (the guarantor waiving any duty on the part of any
Secured Parties to disclose such information and any defense relating to the failure to provide the
same).




     13. Representations and Warranties. Each Guarantor represents and warrants that each
representation and warranty contained in Article V of the Credit Agreement relating to such
Guarantor is true and correct as if made by such Guarantor herein.



     14. Amendments, Waivers and Consents. None of the terms or provisions of this
Guaranty may be waived, amended, supplemented or otherwise modified, nor any consent be given,
except in accordance with Section 11.01 of the Credit Agreement.



     15. Notices. All notices and communications hereunder shall be given to the addresses
and otherwise made in accordance with Section 11.02 of the Credit Agreement;
provided that notices and communications to the Guarantors shall be directed to the
Guarantors, at the address of the Company set forth in Section 11.02 of the Credit
Agreement.



     16. Expenses; Indemnification and Survival. The Guarantors shall, jointly and
severally, (a) pay all reasonable out-of-pocket expenses actually incurred by the Administrative
Agent and each other Secured Party and (b) indemnify each Indemnitee (which for purposes of this
Guaranty shall include, without limitation, all Secured Parties), in each case, to the extent any
Foreign Borrower would be required to do so pursuant to Section 11.04 of the Credit
Agreement. The obligations of the Guarantors under this paragraph shall survive the payment in
full of the Guaranteed Obligations and termination of this Guaranty in accordance with its terms.



     17. Right of Setoff; Governing Law; Submission to Jurisdiction; Venue; WAIVER OF JURY
TRIAL; Judgment Currency. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK. Without limiting the general applicability of the
foregoing and the terms of the other Loan Documents to this Guaranty and the parties hereto, the
terms of Sections 11.08, 11.14, 11.15 and 11.19 of the Credit
Agreement are incorporated herein by reference, mutatis mutandis, with each reference to the
“Borrowers” therein (whether express or by reference to the Borrowers as a “party” thereto) being a
reference to the Guarantors, and the parties hereto agree to such terms.



     18. Counterparts; Electronic Execution. This Guaranty may be executed in counterparts
(and by different parties hereto in different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single contract. Delivery of an
executed counterpart of a signature page of this Guaranty by telecopy or other electronic imaging
means shall be effective as delivery of a manually executed counterpart of this Guaranty.



     19. Additional Guarantors. At any time after the date of this Guaranty, one or more
additional Persons may become a party hereto by executing and delivering to the Administrative
Agent a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent
pursuant to Section 6.14 of the Credit Agreement. Immediately upon such execution and
delivery of such joinder agreement, and without any further action, each such additional Person
will become a party to this Guaranty as a “Guarantor” and have all of the rights and obligations of
a Guarantor hereunder and this Guaranty shall be deemed amended by such joinder agreement.



6









 





     20. Limitations on Guaranteed Obligations. Notwithstanding anything to the contrary
in this Guaranty, the Guaranteed Obligations shall be subject to the limitations set forth in
Section 11.21 of the Credit Agreement.



     21. Miscellaneous. No failure by the Administrative Agent or any Secured Party to
exercise, and no delay in exercising, any right, remedy or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, remedy or power hereunder
preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein provided are cumulative and not exclusive of any remedies provided by law or
in equity. The unenforceability or invalidity of any provision of this Guaranty shall not affect
the enforceability or validity of any other provision herein. Unless otherwise agreed by the
Administrative Agent and each Guarantor in writing, this Guaranty is not intended to supersede or
otherwise affect any other guaranty now or hereafter given by any Guarantor or any other guarantor
for the benefit of the Secured Parties or any term or provision thereof.



     22. Acknowledgments. Each Guarantor hereby acknowledges that (a) it has been advised
by counsel in the negotiation, execution and delivery of this Guaranty and the other Loan Documents
to which it is a party and (b) it has received a copy of the Credit Agreement and the other Loan
Documents and has reviewed and understands the same.



     23. Severability. If any provision of this Guaranty is held to be illegal, invalid or
unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this
Guaranty shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith
negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.



     24. Titles and Captions. Titles and captions of Articles, Sections and subsections in
this Guaranty are for convenience only, and neither limit nor amplify the provisions of this
Guaranty.



     25. USA PATRIOT Act. Each Secured Party that is subject to the USA PATRIOT Act (Title
III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”) and the
Administrative Agent (for itself and not on behalf of any Secured Party) hereby notifies the
Guarantors that pursuant to the requirements of the Act, it is required to obtain, verify and
record information that identifies each Guarantor, which information includes the name and address
of each Guarantor and other information that will allow such Secured Party or the Administrative
Agent, as applicable, to identify each Guarantor in accordance with the Act. Each Guarantor shall,
promptly following a request by the Administrative Agent or any Secured Party, provide all
documentation and other information that the Administrative Agent or such Secured Party requests in
order to comply with its ongoing obligations under applicable “know your customer” and anti-money
laundering rules and regulations, including the Act.



     26. Successors and Assigns. The provisions of this Guaranty shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and permitted assigns;
except that no Guarantor may assign or otherwise transfer any of its rights or obligations under
this Guaranty without the prior written consent of the Administrative Agent and the other Secured
Parties (in accordance with the Credit Agreement).



7









 





     27. ENTIRE AGREEMENT. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.



[Signature Pages Follow]




 









 








     IN WITNESS WHEREOF, each of the parties hereto has caused this Guaranty to be duly executed as of
the date first above written.



	 	 	 	 	 
	GUARANTORS: 	MOHAWK FOREIGN HOLDINGS, S.Á R.L.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOHAWK INTERNATIONAL HOLDINGS,

S.Á R.L.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	UNILIN B.V.B.A.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOHAWK UNILIN INTERNATIONAL B.V.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOHAWK INTERNATIONAL (EUROPE)

S.Á R.L.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOHAWK GLOBAL INVESTMENTS S.Á R.L.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Mohawk Industries, Inc.

Foreign Guaranty

Signature Page







 









 








	 	 	 	 	 
	 	



UNILIN HOLDINGS, BVBA

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Present when the COMMON SEAL of FLOORING INDUSTRIES
LIMITED was affixed to the Guaranty and this Guaranty
was delivered as a deed on the date first written
above:

 	 
	 	 	 
	 	Director 	 
	 	 	 
	 	 	 
	 	Director/Secretary 	 
	 	 	 	 
	 



Mohawk Industries, Inc.

Foreign Guaranty

Signature Page






 









 









	 	 	 	 	 
	 	Acknowledged and accepted:



BANK OF AMERICA, N.A.,

as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Mohawk Industries, Inc.

Foreign Guaranty

Signature Page





 











 





EXHIBIT G-1




FORM OF SECURITY AGREEMENT




SECURITY AGREEMENT



     THIS SECURITY AGREEMENT (as amended, restated, extended, supplemented or otherwise modified
from time to time, this “Agreement”) is entered into as of July 8, 2011 among MOHAWK
INDUSTRIES, INC., a Delaware corporation (the “Company”), the Domestic Subsidiaries of the
Company identified as “Grantors” on the signature pages hereto, each Additional Grantor (as defined
below) party hereto after the date hereof (collectively with the Company, the “Grantors”)
and Bank of America, N.A., in its capacity as administrative agent (in such capacity, the
“Administrative Agent”) for the Secured Parties.



PRELIMINARY STATEMENTS




     Pursuant to that certain Credit Agreement dated as of the date hereof (as amended, restated,
extended, supplemented or otherwise modified from time to time, the “Credit Agreement”)
among the Company, the Foreign Borrowers (as defined therein, and together with the Company, the
“Borrowers”), the lenders from time to time party thereto (the “Lenders”), the
Administrative Agent, the Swing Line Lender and each L/C Issuer, the Lenders and the L/C Issuers
have agreed to make Credit Extensions to the Borrowers upon the terms and subject to the conditions
set forth therein.



     Pursuant to the terms of that certain Domestic Guaranty dated as of the date hereof, certain
Domestic Subsidiaries of the Company have guaranteed the payment and performance of the
Obligations.



     It is a condition precedent to the obligation of the Lenders and the L/C Issuers to make
Credit Extensions to the Borrowers under the Credit Agreement that the Grantors shall have executed
and delivered this Agreement to the Administrative Agent, for the ratable benefit of the Secured
Parties.



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, and to induce the Administrative Agent, the Lenders and
the L/C Issuers to enter into the Credit Agreement and to induce the Lenders and the L/C Issuers to
make Credit Extensions to the Borrowers thereunder, each Grantor hereby agrees with the
Administrative Agent, for the ratable benefit of the Secured Parties, as follows:



     1. Definitions. Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to such terms in the Credit Agreement, and the following terms shall have the
meanings set forth in the UCC: Accession; Account; Account Debtor; As-Extracted Collateral,
Chattel Paper; Commercial Tort Claim; Consumer Goods; Document; Electronic Chattel Paper; Farm
Products; General Intangible; Instrument; Inventory; Investment Property; Letter-of-Credit Right;
Manufactured Home; Proceeds; Securities Account; Supporting Obligation; and Tangible Chattel Paper.
In addition, the following terms shall have the meanings set forth below:



     “Additional Grantor” means each Person that becomes a Grantor pursuant to Section
17.



     “Collateral” has the meaning provided in Section 2.



     “Permitted Liens” means Liens permitted to exist under Section 7.01 of the Credit
Agreement.



     “Secured Obligations” means all “Obligations” as defined in the Credit Agreement,
including, without limitation, the “Guaranteed Obligations” of each Guarantor under the Domestic
Guaranty.



     “UCC” means the Uniform Commercial Code as in effect in the State of New York;
provided that, if perfection or the effect of perfection or non-perfection or the priority
of any security interest in any



 









 




Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of New York, “UCC” means the Uniform Commercial Code as in effect from time to time
in such other jurisdiction for purposes of the provisions hereof relating to such perfection,
effect of perfection or non-perfection or priority.




     With reference to this Agreement and each other Loan Document, unless otherwise specified
herein or in such other Loan Document: (i) the definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined, (ii) whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms, (iii) the words
“include”, “includes” and “including” shall be deemed to be followed by the phrase “without
limitation”, (iv) the word “will” shall be construed to have the same meaning and effect as the
word “shall”, (v) any definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other document, as from
time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (vi) any reference herein to any Person
shall be construed to include such Person’s permitted successors and assigns, (vii) the words
“herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (viii) all references
herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement, (ix) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and contract rights, (x) the
term “documents” includes any and all instruments, documents, agreements, certificates, notices,
reports, financial statements and other writings, however evidenced, whether in physical or
electronic form, (xi) in the computation of periods of time from a specified date to a later
specified date, the word “from” means “from and including;” the words “to” and “until” each mean
“to but excluding;” and the word “through” means “to and including”, (xii) Section headings herein
and in the other Loan Documents are included for convenience of reference only and shall not affect
the interpretation of this Agreement or any other Loan Document and (xiii) where the context
requires, terms relating to the Collateral or any part thereof, when used in relation to a Grantor,
shall refer to such Grantor’s Collateral or the relevant part thereof. Whenever any provision
contained in this Agreement refers to the knowledge (or an analogous phrase) of any Grantor, such
words are intended to signify that such Grantor (or any Responsible Officer of such Grantor) has
actual knowledge or awareness of a particular fact or circumstance or that such Grantor (or any
Responsible Officer of such Grantor), if it had exercised reasonable and customary diligence, would
have known or been aware of such fact or circumstance.



     2. Grant of Security Interest in the Collateral. To secure the prompt payment and
performance in full when due, whether by lapse of time, acceleration, mandatory prepayment or
otherwise, of the Secured Obligations, each Grantor hereby grants, pledges and collaterally assigns
to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest
in any and all right, title and interest of such Grantor in and to all of the following, whether
now owned or existing or owned, acquired, or arising hereafter (collectively, the
“Collateral”):



     (a) all Accounts;



     (b) all Inventory located in the United States;



     (c) all Chattel Paper, Documents, General Intangibles and Instruments, in each case, directly
relating to, or arising from, any of the items described in clauses (a) and (b); and



2









 





     (d) all Proceeds and products of any and all of the foregoing, all Accessions to any of the
foregoing and all collateral security and Supporting Obligations given by any Person with respect
to any of the foregoing;


provided that it is understood and agreed that the security interests granted under this
Agreement shall not extend to, and the Collateral shall not include, any Equity Interests.




     Each of the Grantors and the Administrative Agent, on behalf of the Secured Parties, hereby
acknowledge and agree that the security interest created hereby in the Collateral constitutes
continuing collateral security for all of the Secured Obligations, whether now existing or
hereafter arising.



     3. Representations and Warranties. The Company, as to itself and each other Grantor,
and each other Grantor solely as to itself and its Subsidiaries, hereby represents and warrants to
the Administrative Agent, for the benefit of the Secured Parties, that:



     (a) Ownership. Each Grantor is the legal and beneficial owner of its Collateral free
and clear of any Lien (other than Permitted Liens) and has the right to pledge, sell, assign or
transfer the same. No Grantor has authenticated any agreement authorizing any secured party
thereunder to file a financing statement purporting to cover any of the Collateral, except to
perfect Permitted Liens.



     (b) Security Interest/Priority. This Agreement creates a valid security interest in
the Collateral of such Grantor in favor of the Administrative Agent, for the benefit of the Secured
Parties, as collateral security for the Secured Obligations, free and clear of all Liens (other
than Permitted Liens). The security interests granted pursuant to this Agreement shall constitute
valid and perfected first priority security interests (subject to Permitted Liens) in all of the
Collateral to the extent such security interests can be perfected as follows: (i) upon the filing
by the Administrative Agent, for the benefit of the Secured Parties, of UCC financing statements
(which are in appropriate form and describe the Collateral) with the appropriate offices in the
appropriate states, of the Collateral with respect to which a security interest can be perfected by
filing one or more financing statements, or (ii) upon the taking of possession, delivery or control
by the Administrative Agent, for the benefit of the Secured Parties, of the Collateral with respect
to which a security interest can be perfected only by possession, delivery or control under the
terms of the UCC.



     (c) Places of Business; Acquisitions; Mergers; Tradenames. As of the Closing Date,
(i) the chief executive office of each Grantor and the office where each Grantor keeps its books
and records relating to the Accounts, Documents, General Intangibles, Instruments and Inventory, in
each case constituting Collateral, in which it has any interest is located at the locations
specified on Schedule 3(c) under such Grantor’s name and (ii) except as disclosed on
Schedule 3(c) under such Grantor’s name, no Grantor has (A) acquired assets from any
Person, other than assets acquired in the ordinary course of such Grantor’s business from a Person
engaged in the business of selling goods of such kind, during the past five years or (B) been party
to a merger during the five years prior to the Closing Date except as disclosed on Schedule
3(c) under such Grantor’s name.



     (d) Types of Collateral.




     (i) None of the Collateral consists of, or is the Proceeds of, (A) Consumer Goods, (B)
Farm Products, (C) Manufactured Homes, (D) standing timber, (E) aircraft, airframe, aircraft
engine, aircraft lease or any other related property or (F) any other interest in or to any
of the foregoing.



3









 






     (ii) A material portion of the Collateral is not composed of As-Extracted Collateral or
the Proceeds thereof.



     (e) Accounts. To the knowledge of the Responsible Officers of each Grantor, no
Account Debtor has any defense, set-off, claim or counterclaim against any Grantor that can be
asserted against the Administrative Agent, whether in any proceeding to enforce the Administrative
Agent’s rights in the Collateral or otherwise except defenses, setoffs, claims or counterclaims
that are not, in the aggregate, material to the value of all of the Accounts, taken as a whole.
Except as set forth on Schedule 3(e), as of the Closing Date, none of the Accounts is
evidenced by a promissory note or other Instrument (other than a check) having a principal balance
in excess of $2,000,000. To the extent such Accounts, promissory notes or other evidence of
indebtedness constitutes Collateral for purposes hereof, such Collateral has been pledged to the
Administrative Agent, for the benefit of the Secured Parties, in accordance with the terms hereof.



     (f) Inventory. As of the Closing Date, all Collateral consisting of Inventory
(whether now owned or hereafter acquired) having a value of more than $500,000 is (or will be)
located at the locations identified on Schedule 3(f), except as otherwise permitted
hereunder. Except as could not reasonably be expected to have a Material Adverse Effect,
Collateral consisting of Inventory is of good and merchantable quality, free from any material
defects. No Inventory of a Grantor in excess of $5,000,000 is held by a Person other than a
Grantor pursuant to consignment, sale or return, sale on approval or similar arrangement.



     (g) Consents; Etc. Except for (i) the filing or recording of UCC financing
statements, (ii) obtaining control to perfect the Liens created by this Agreement (to the extent
required under Section 4(a)), and (iii) consents, authorizations, filings or other actions
which have been obtained or made, no consent or authorization of, filing with, or other act by or
in respect of, any arbitrator or Governmental Authority and no consent of any other Person
(including, without limitation, any stockholder, member or creditor of such Grantor), is required
for (A) the grant by such Grantor of the security interest in the Collateral granted hereby or for
the execution and delivery of performance under this Agreement by such Grantor, (B) the perfection
of such security interest (to the extent such security interest can be perfected by filing under
the UCC, the taking possession or the granting of control (to the extent required under Section
4(a)) or (C) to the knowledge of such Grantor, the exercise by the Administrative Agent or any
of the Secured Parties of the rights and remedies provided for in this Agreement.



     (h) Chattel Paper. As of the Closing Date, no individual Account is evidenced by
Chattel Paper in excess of $2,000,000.



     4. Covenants. Each Grantor covenants that until such time as the Secured Obligations
have been paid in full (other than (i) contingent indemnification obligations as to which no claim
has been asserted and (ii) obligations and liabilities under Secured Cash Management Agreements and
Secured Hedge Agreements either (x) as to which arrangements satisfactory to the applicable Cash
Management Bank or Hedge Bank shall have been made or (y) notice has not been received by the
Administrative Agent from the applicable Cash Management Bank or Hedge Bank, as the case may be,
that amounts are due and payable under such Secured Cash Management Agreement or Secured Hedge
Agreement, as the case may be), the Commitments have expired or been terminated, and no Letters of
Credit remain outstanding (other than Extended Letters of Credit and any other Letters of Credit
the Outstanding Amount of which has been Cash Collateralized or back-stopped by a letter of credit
or other credit support in form and substance reasonably satisfactory to the Administrative Agent
and the applicable L/C Issuer), such Grantor shall:



4









 





     (a) Delivery of Certain Collateral.




     (i) Instruments; Tangible Chattel Paper; Documents. If any amount payable
under or in connection with any of the Collateral shall be or become evidenced by any
Instrument or Tangible Chattel Paper having a face value of more than (x) $2,000,000,
individually, or (y) $10,000,000, when aggregated together with the value of all other
Instruments and Tangible Chattel Paper, not yet delivered to the Administrative Agent
pursuant to this Section 4(a), or if any Collateral shall be stored or shipped
subject to a Document, (A) ensure that such Instrument, Tangible Chattel Paper or Document
is either in the possession of such Grantor at all times or, if requested by the
Administrative Agent because possession is required to perfect its first priority security
interest in such Collateral, deliver such Instrument, Tangible Chattel Paper or Document to
the Administrative Agent duly endorsed in a manner reasonably satisfactory to the
Administrative Agent and (B) upon the request of the Administrative Agent, ensure that any
such Tangible Chattel Paper is marked with a legend reasonably acceptable to the
Administrative Agent, indicating the Administrative Agent’s security interest in such
Tangible Chattel Paper.




     (ii) Investment Property; Letter-of-Credit Rights; Electronic Chattel Paper.
Execute and deliver all agreements, assignments, instruments or other documents as
reasonably requested by the Administrative Agent for the purpose of obtaining and
maintaining control with respect to any Collateral consisting of (A) Investment Property not
otherwise addressed in Section 4(a)(i), (B) Letter-of-Credit Rights or (C)
Electronic Chattel Paper, in each case, having a value of more than (x) $1,000,000,
individually, or (y) $5,000,000, when aggregated together with the value of all other
Investment Property not otherwise addressed in Section 4(a)(i), Letter-of-Credit
Rights and Electronic Chattel Paper but not yet delivered to the Administrative Agent
pursuant to this Section 4(a).



     (b) Filing of Financing Statements, Notices, Assignment of Claims Act, Etc. Execute
and deliver to the Administrative Agent such agreements, assignments or instruments (including
affidavits, notices, reaffirmations and amendments and restatements of existing documents) and do
all such other things, in each case, as the Administrative Agent may reasonably deem necessary and
may reasonably request (i) to assure to the Administrative Agent its security interests hereunder,
including such instruments as the Administrative Agent may from time to time reasonably request in
order to perfect and maintain the security interests granted hereunder in accordance with the UCC,
(ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure
the Administrative Agent of its rights and interests hereunder. Furthermore, each Grantor also
hereby irrevocably makes, constitutes and appoints the Administrative Agent, its nominee or any
other person whom the Administrative Agent may designate, as such Grantor’s attorney in fact with
full power and for the limited purpose to sign in the name of such Grantor any financing
statements, or amendments and supplements to financing statements, renewal financing statements,
notices or any similar documents which in the Administrative Agent’s reasonable discretion would be
necessary or appropriate in order to perfect and maintain perfection of the security interests in
the Collateral granted hereunder, such power, being coupled with an interest, being and remaining
irrevocable until such time as the Secured Obligations have been paid in full (other than (i)
contingent indemnification obligations as to which no claim has been asserted and (ii) obligations
and liabilities under Secured Cash Management Agreements and Secured Hedge Agreements either (x) as
to which arrangements satisfactory to the applicable Cash Management Bank or Hedge Bank shall have
been made or (y) notice has not been received by the Administrative Agent from the applicable Cash
Management Bank or Hedge Bank, as the case may be, that amounts are due and payable under such
Secured Cash Management Agreement or Secured Hedge Agreement, as the case may be), the Commitments
have expired or been terminated, and no Letters of Credit remain outstanding (other than Extended
Letters of Credit and any other Letters of Credit the Outstanding Amount of which has been Cash
Collateralized or back-stopped by a letter of credit or other credit support in form and substance



5









 




reasonably satisfactory to the Administrative Agent and the applicable L/C Issuer). Each Grantor
hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such
financing
statement is sufficient for filing as a financing statement by the Administrative Agent
without notice thereof to such Grantor wherever the Administrative Agent may in its sole discretion
desire to file the same. After the Closing Date, upon the reasonable request of the Administrative
Agent and at the sole expense of the Grantors, each Grantor will promptly and duly execute and
deliver such further instruments and documents and take such further actions as the Administrative
Agent may reasonably request for the purpose of obtaining or preserving the full benefits of this
Agreement and of the rights and powers herein granted. In the case of any contract that any
Grantor is a party to which is subject to the Assignment of Claims Act of 1940 (31 U.S.C. Section
3727, 41 U.S.C. Section 15), such Grantor shall take all actions reasonably requested by the
Administrative Agent to evidence compliance therewith.




     (c) Required Notifications. Each Grantor shall (i) promptly notify the Administrative
Agent, in writing, of (A) any Lien (other than any Permitted Lien) on any of the Collateral which
would adversely affect the ability of the Administrative Agent to exercise any of its remedies
hereunder, (B) the occurrence of any other event which could reasonably be expected to have a
Material Adverse Effect on the aggregate value of the Collateral or on the security interests
granted pursuant to the Loan Documents, (C) the acquisition or ownership by such Grantor of any (1)
Commercial Tort Claim seeking damages of more than $5,000,000, directly related to, or arising from
any Collateral or (2) any Investment Property constituting Proceeds of Collateral, which Investment
Property has a value of $5,000,000 or more, (D) any amount payable under or in connection with any
of the Collateral that shall be or become evidenced by any Instrument or Tangible Chattel Paper
having a face value of more than (x) $1,000,000, individually, or (y) $10,000,000, when aggregated
together with the value of all other Instruments and Tangible Chattel Paper not yet delivered to
the Administrative Agent pursuant to Section 4(a), (E) any Collateral having a value of
$5,000,000 or more that is stored or shipped subject to a Document and (F) any Collateral with an
aggregate value in excess of $5,000,000 that is in the possession or control of any single
consignee warehouseman, bailee (other than a common carrier transporting inventory to a purchaser
in the ordinary course of business), processor or any other third party and (ii) not later than 15
days after the delivery of each Compliance Certificate, or each Grantor shall deliver to the
Administrative Agent a supplement to Schedule 3(f) (in form and substance reasonably
acceptable to the Administrative Agent) identifying any leased premises not previously disclosed to
the Administrative Agent on Schedule 3(f) on which Collateral with an aggregate value in
excess of $5,000,000 is located.



     (d) Collateral Located on Leased Premises. If any Collateral with an aggregate value
in excess of $5,000,000 is at any time located on leased premises, and if the Administrative Agent
so reasonably requests, use commercially reasonable efforts to obtain a landlord waiver or
collateral access letter from the lessor of such premises in favor of the Administrative Agent (in
form and substance satisfactory to the Administrative Agent).



     (e) Collateral Held by Warehouseman, Bailee, Etc. If any Collateral with an aggregate
value in excess of $5,000,000 is at any time in the possession or control of any single consignee
warehouseman, bailee (other than a common carrier transporting inventory to a purchaser in the
ordinary course of business), processor or any other third party and if the Administrative Agent so
reasonably requests, (i) notify such Person in writing of the Administrative Agent’s security
interest therein, (ii) instruct such Person to hold all such Collateral for the Administrative
Agent’s account and subject to the Administrative Agent’s instructions, (iii) use commercially
reasonable efforts to obtain a collateral access agreement from such Person that it is holding such
Collateral in favor of the Administrative Agent (in form and substance satisfactory to the
Administrative Agent) and (iv) use commercially reasonable efforts to cause such Person to issue
and deliver to the Administrative Agent warehouse receipts, bills of lading or any similar
documents relating to such Collateral, together with, all such endorsements, assignments and other
instruments of transfer reasonably requested by the Administrative Agent with respect to the



6









 




security interest granted in such Collateral, and in each case, in form and substance reasonably
satisfactory to the Administrative Agent. Further, each Grantor shall perfect and protect such
Grantor’s
ownership interests in all Inventory having a fair market value of more than $500,000 and
stored with a consignee against creditors of the consignee by filing and maintaining financing
statements against the consignee reflecting the consignment arrangement filed in all appropriate
filing offices, providing any written notices required by the UCC to notify any prior creditors of
the consignee of the consignment arrangement, and taking such other actions as may be appropriate
to perfect and protect such Grantor’s interests in such Inventory under Section 2-326, Section
9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements
filed pursuant to this Section shall be assigned to the Administrative Agent, for the ratable
benefit of the Secured Parties.




     (f) Commercial Tort Claims. Execute and deliver such statements, documents and
notices and do and cause to be done all such things as may be reasonably requested by the
Administrative Agent, or required by Law to create, preserve, perfect and maintain the
Administrative Agent’s security interest in any Commercial Tort Claims seeking damages in excess of
$5,000,000 initiated by or in favor of any Grantor directly related to, or arising from,
Collateral.



     (g) Change in Names; Corporate Structure or Location. Not (i) change its jurisdiction
of organization or formation, as applicable, or the location of its chief executive office from
that identified on Schedule 3(c) or (ii) change its legal name, identity or corporate or
organizational structure to such an extent that any financing statement filed by the Administrative
Agent in connection with this Agreement would become seriously misleading within the meaning of the
UCC; provided that a Grantor may make any change described in clause (i) or (ii) so long as
at least thirty (30) days (or such later time as may be determined by the Administrative Agent in
its sole discretion) prior to taking such action, such Grantor notifies the Administrative Agent in
writing and delivers to the Administrative Agent (x) all additional financing statements and other
instruments and documents reasonably requested by the Administrative Agent to maintain the
validity, perfection and priority of the Administrative Agent’s security interest in the Collateral
of such Grantor and (y) if applicable, a written supplement to the Schedules of this Agreement
(upon delivery of which, the Schedules of this Agreement will be deemed amended thereby).



     (h) Maintenance of Insurance. All liability insurance and property insurance
maintained by a Grantor and covering any Collateral shall, (i) provide that no cancellation or
material modification thereof shall be effective until at least thirty (30) days (or such shorter
period as may be acceptable to the Administrative Agent in its sole discretion) after receipt by
the Administrative Agent of written notice thereof, (ii) in the case of each liability policy, name
the Administrative Agent as an additional insured party thereunder and (iii) in the case of each
casualty insurance policy, name the Administrative Agent as lender’s loss payee. On the Closing
Date and from time to time thereafter deliver to the Administrative Agent upon its request
information in reasonable detail as to the insurance then in effect, stating the names of the
insurance companies, the amounts and rates of the insurance, the dates of the expiration thereof
and the properties and risks covered thereby.



     5. Authorization to File Financing Statements. Each Grantor hereby authorizes the
Administrative Agent to prepare and file such financing statements (including continuation
statements) or amendments thereof or supplements thereto or other instruments as the Administrative
Agent may from time to time deem necessary or appropriate in order to perfect and maintain the
security interests granted hereunder in accordance with the UCC.



     6. Remedies.



     (a) General Remedies. Upon the occurrence and during the continuance of an Event of
Default, and to the extent not prohibited by applicable Law, the Administrative Agent shall have,
in



7









 




addition to the rights and remedies provided herein, in the Loan Documents, in any other
documents relating to the Secured Obligations, or by Law (including, but not limited to, levy of
attachment,
garnishment and the rights and remedies set forth in the UCC of the jurisdiction applicable to
the affected Collateral), the rights and remedies of a secured party under the UCC (regardless of
whether the UCC is the law of the jurisdiction where the rights and remedies are asserted and
regardless of whether the UCC applies to the affected Collateral), and further, to the extent not
prohibited by applicable Law, the Administrative Agent may, with or without judicial process or the
aid and assistance of others, (i) enter on any premises on which any of the Collateral may be
located and, without resistance or interference by the Grantors, take possession of the Collateral,
(ii) dispose of any Collateral on any such premises, (iii) require the Grantors to assemble and
make available to the Administrative Agent at the expense of the Grantors any Collateral at any
place and time designated by the Administrative Agent which is reasonably convenient to both
parties, (iv) remove any Collateral from any such premises for the purpose of effecting sale or
other disposition thereof, and/or (v) without demand and without advertisement, notice, hearing or
process of law, all of which each of the Grantors hereby waives to the fullest extent permitted by
Law, at any place and time or times, sell and deliver any or all Collateral held by or for it at
public or private sale, at any exchange or broker’s board or elsewhere, by one or more contracts,
in one or more parcels, for Money, upon credit or otherwise, at such prices and upon such terms as
the Administrative Agent deems advisable, in its sole discretion (subject to any and all mandatory
legal requirements). Each Grantor acknowledges that any such private sale may be at prices and on
terms less favorable to the seller than the prices and other terms which might have been obtained
at a public sale. Neither the Administrative Agent’s compliance with applicable Law nor its
disclaimer of warranties relating to the Collateral shall be considered to adversely affect the
commercial reasonableness of any sale. To the extent the rights of notice cannot be legally waived
hereunder, each Grantor agrees that any requirement of reasonable notice shall be met if such
notice, specifying the place of any public sale or the time after which any private sale is to be
made, is personally served on or mailed, postage prepaid, to the Company in accordance with the
notice provisions of Section 11.02 of the Credit Agreement at least ten (10) days before the time
of sale or other event giving rise to the requirement of such notice. The Administrative Agent may
adjourn any public or private sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time and place to which it was
so adjourned. The Administrative Agent shall not be obligated to make any sale or other
disposition of the Collateral regardless of notice having been given. To the extent not prohibited
by applicable Law, any Secured Party may be a purchaser at any such sale. To the extent not
prohibited by applicable Law, each of the Grantors hereby waives all of its rights of redemption
with respect to any such sale. Subject to the provisions of applicable Law, the Administrative
Agent may postpone or cause the postponement of the sale of all or any portion of the Collateral by
announcement at the time and place of such sale, and such sale may, without further notice, to the
extent permitted by applicable Law, be made at the time and place to which the sale was postponed,
or the Administrative Agent may further postpone such sale by announcement made at such time and
place.




     (b) Advances. Upon the occurrence and during the continuance of an Event of Default,
and to the extent not prohibited by applicable Law, the Administrative Agent may, at its sole
option and in its sole discretion, take such actions as it reasonably deems necessary for the
protection of the security interest in the Collateral granted hereby, or which may be compelled to
make by operation of Law, and in so doing may expend such sums as the Administrative Agent may
reasonably deem advisable in the performance thereof, including, without limitation, the payment of
any insurance premiums, the payment of any taxes, a payment to obtain a release of a Lien or
potential Lien, expenditures made in defending against any adverse claim and all other expenditures
which the Administrative Agent reasonably may make therefor. All such sums and amounts so expended
shall be repayable by the Grantors on a joint and several basis promptly upon timely notice thereof
and demand therefor, shall constitute additional Secured Obligations and shall bear interest from
the date said amounts are expended at the Default Rate. No performance of any covenant or agreement
by the Administrative Agent on behalf of any Grantor, and



8









 




no such advance or expenditure therefor,
shall relieve the Grantors of any Default or Event of Default. Upon the occurrence and during the
continuance of an Event of Default, the Administrative Agent may
make any payment hereby authorized in accordance with any bill, statement or estimate procured
from the appropriate public office or holder of the claim to be discharged without inquiry into the
accuracy of such bill, statement or estimate or into the validity of any tax assessment, sale,
forfeiture, tax lien, title or claim except to the extent the Administrative Agent has knowledge
that such payment is being contested in good faith by a Grantor in appropriate proceedings and
against which adequate reserves are being maintained in accordance with GAAP.




     (c) Remedies relating to Accounts. Upon the occurrence and during the continuance of
an Event of Default, whether or not the Administrative Agent has exercised any or all of its rights
and remedies hereunder, (i) each Grantor will promptly upon request of the Administrative Agent
instruct all Account Debtors to remit all payments in respect of Accounts to a location selected by
the Administrative Agent and (ii) the Administrative Agent shall have the right to enforce any
Grantor’s rights against its customers and Account Debtors, and the Administrative Agent or its
designee may notify any Grantor’s customers and Account Debtors that the Accounts of such Grantor
have been assigned to the Administrative Agent or of the Administrative Agent’s security interest
therein, and may (either in its own name or in the name of a Grantor or both) demand, collect
(including without limitation by way of a lockbox arrangement), receive, take receipt for, sell,
sue for, compound, settle, compromise and give acquittance for any and all amounts due or to become
due on any Account, and, in the Administrative Agent’s reasonable discretion, file any claim or
take any other action or proceeding to protect and realize upon the security interest of the
Administrative Agent, for the benefit of the Secured Parties, in the Accounts. Each Grantor
acknowledges and agrees that upon the occurrence and during the continuance of an Event of Default,
the Proceeds of its Accounts remitted to or on behalf of the Administrative Agent in accordance
with the provisions hereof shall be solely for the Administrative Agent’s own convenience and that
such Grantor shall not have any right, title or interest in such Accounts or in any such other
amounts except as expressly provided herein. Neither the Administrative Agent nor any Secured
Party shall have any liability or responsibility to any Grantor for acceptance of a check, draft or
other order for payment of money bearing the legend “payment in full” or words of similar import or
any other restrictive legend or endorsement or be responsible for determining the correctness of
any remittance.



     (d) Access. In addition to the rights and remedies hereunder, upon the occurrence and
during the continuance of an Event of Default, and to the extent permitted under applicable Law,
the Administrative Agent shall have the right to enter and remain upon the various premises of the
Grantors without cost or charge to the Administrative Agent, and use the same, together with
materials, supplies, books and records of the Grantors for the purpose of collecting and
liquidating the Collateral, or for preparing for sale and conducting the sale of the Collateral,
whether by foreclosure, auction or otherwise. In addition, the Administrative Agent may, to the
full extent permitted under applicable Law, remove Collateral, or any part thereof, from such
premises and/or any records with respect thereto, in order to effectively collect or liquidate such
Collateral.



     (e) Nonexclusive Nature of Remedies. Failure by the Administrative Agent or any
Secured Party to exercise any right, remedy or option under this Agreement, any other Loan
Document, any other document relating to the Secured Obligations, or as provided by applicable Law,
or any delay by the Administrative Agent or any Secured Party in exercising the same, shall not
operate as a waiver of any such right, remedy or option. No waiver hereunder shall be effective
unless it is in writing, signed by the party against whom such waiver is sought to be enforced and
then only to the extent specifically stated, which in the case of the Administrative Agent or the
Secured Parties shall only be granted as provided herein. To the extent permitted by applicable
Law, neither the Administrative Agent, the Secured Parties, nor any party acting as attorney for
the Administrative Agent or the Secured Parties, shall be liable hereunder for any acts or
omissions or for any error of judgment or mistake of fact or law other than their



9









 




gross negligence
or willful misconduct hereunder. The rights and remedies of the Administrative Agent
and the Secured Parties under this Agreement shall be cumulative and not exclusive of any
other right or remedy which the Administrative Agent or the Secured Parties may have.




     (f) Retention of Collateral. In addition to the rights and remedies hereunder, the
Administrative Agent may, in compliance with Sections 9-620 and 9-621 of the UCC or otherwise
complying with the requirements of applicable Law of the relevant jurisdiction, accept or retain
the Collateral in satisfaction of the Secured Obligations. Unless and until the Administrative
Agent shall have provided such notices, however, the Administrative Agent shall not be deemed to
have retained any Collateral in satisfaction of any Secured Obligations for any reason.



     (g) Deficiency. In the event that the proceeds of any sale, collection or realization
are insufficient to pay all amounts to which the Administrative Agent or the Secured Parties are
legally entitled, the Grantors shall be jointly and severally liable for the deficiency, together
with interest thereon at the Default Rate, together with the costs of collection and the fees,
charges and disbursements of counsel as provided in the Loan Documents. Any surplus remaining after
the full payment and satisfaction of the Secured Obligations shall be returned to the Grantors or
to whomsoever a court of competent jurisdiction shall determine to be entitled thereto.



     (h) Application of Proceeds. Upon the acceleration of the Secured Obligations
pursuant to Section 8.02 of the Credit Agreement, any payments in respect of the Secured
Obligations and any proceeds of the Collateral, when received by the Administrative Agent or any
Secured Party in money, will be applied in the manner and in the order set forth in Section 8.03 of
the Credit Agreement.



     7. The Administrative Agent.



     (a) Power of Attorney. In addition to other powers of attorney contained herein, each
Grantor hereby designates and appoints the Administrative Agent, on behalf of the Secured Parties,
and each of its designees or agents, as attorney-in-fact of such Grantor, irrevocably and with
power of substitution, with authority to take any or all of the following actions upon the
occurrence and during the continuance of an Event of Default:




     (i) to demand, collect, settle, compromise, adjust, give discharges and releases, all
as the Administrative Agent may reasonably determine;




     (ii) to commence and prosecute any actions at any court for the purposes of collecting
any Collateral and enforcing any other right in respect thereof;




     (iii) to defend, settle or compromise any action brought and, in connection therewith,
give such discharge or release as the Administrative Agent may deem reasonably appropriate;




     (iv) to receive, open and dispose of mail addressed to a Grantor and endorse checks,
notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other
instruments or documents evidencing payment, shipment or storage of the goods giving rise to
the Collateral of such Grantor on behalf of and in the name of such Grantor, or securing, or
relating to such Collateral;




     (v) to sell, assign, transfer, make any agreement in respect of, or otherwise deal with
or exercise rights in respect of, any Collateral or the goods or services which have given
rise thereto, as fully and completely as though the Administrative Agent were the absolute
owner thereof for all purposes;



10









 






     (vi) to adjust and settle claims under any insurance policy relating thereto;




     (vii) to execute and deliver all assignments, conveyances, statements, financing
statements, renewal financing statements, security agreements, affidavits, notices and other
agreements, instruments and documents that the Administrative Agent may reasonably determine
necessary in order to perfect and maintain the security interests and liens granted in this
Agreement and in order to fully consummate all of the transactions contemplated therein;




     (viii) to the extent permitted by applicable Law, to institute any foreclosure
proceedings that the Administrative Agent may reasonably deem appropriate;




     (ix) to sign and endorse any drafts, assignments, proxies, stock powers, verifications,
notices and other documents relating to the Collateral;




     (x) to pay or discharge taxes, liens, security interests or other encumbrances levied
or placed on or threatened against the Collateral;




     (xi) to direct any parties liable for any payment in connection with any of the
Collateral to make payment of any and all monies due and to become due thereunder directly
to the Administrative Agent or as the Administrative Agent shall direct;




     (xii) to receive payment of and receipt for any and all monies, claims, and other
amounts due and to become due at any time in respect of or arising out of any Collateral;
and




     (xiii) do and perform all such other acts and things as the Administrative Agent may
reasonably deem to be necessary, proper or convenient in connection with the Collateral.


This power of attorney is a power coupled with an interest and shall be irrevocable until such time
as the Secured Obligations have been paid in full (other than (i) contingent indemnification
obligations as to which no claim has been asserted and (ii) obligations and liabilities under
Secured Cash Management Agreements and Secured Hedge Agreements either (x) as to which arrangements
satisfactory to the applicable Cash Management Bank or Hedge Bank shall have been made or (y)
notice has not been received by the Administrative Agent from the applicable Cash Management Bank
or Hedge Bank, as the case may be, that amounts are due and payable under such Secured Cash
Management Agreement or Secured Hedge Agreement, as the case may be), the Commitments have expired
or been terminated, and no Letters of Credit remain outstanding (other than Extended Letters of
Credit and any other Letters of Credit the Outstanding Amount of which has been Cash Collateralized
or back-stopped by a letter of credit or other credit support in form and substance reasonably
satisfactory to the Administrative Agent and the applicable L/C Issuer). The Administrative Agent
shall be under no duty to exercise or withhold the exercise of any of the rights, powers,
privileges and options expressly or implicitly granted to the Administrative Agent in this
Agreement, and shall not be liable for any failure to do so or any delay in doing so. The
Administrative Agent shall not be liable for any act or omission or for any error of judgment or
any mistake of fact or law in its individual capacity or its capacity as attorney-in-fact except
acts or omissions resulting from its gross negligence or willful misconduct. This power of
attorney is conferred on the Administrative Agent solely to protect, preserve and realize upon its
security interest in the Collateral on behalf of the Secured Parties.




     (b) Assignment by the Administrative Agent. The Administrative Agent may from time to
time assign the Secured Obligations or any portion thereof to a successor Administrative Agent
appointed in accordance with the Credit Agreement, and such successor shall be entitled to all of
the rights and remedies of the Administrative Agent under this Agreement in relation thereto.



11









 





     (c) The Administrative Agent’s Duty of Care. The sole duty of Administrative Agent
with respect to the custody, safekeeping and physical preservation of the Collateral in its
possession, under Section 9-207 of the UCC or otherwise, shall be to deal with it in the same
manner as the Administrative Agent deals with similar property for its own account. Neither the
Administrative Agent, any other Secured Party nor any of their respective officers, directors,
employees or agents shall be liable for failure to demand, collect or realize upon any of the
Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise
dispose of any Collateral upon the request of any Grantor or any other Person or to take any other
action whatsoever with regard to the Collateral or any part thereof. The powers conferred on the
Administrative Agent and the other Secured Parties hereunder are solely to protect the interests of
the Administrative Agent and the other Secured Parties in the Collateral and shall not impose any
duty upon the Administrative Agent or any other Secured Party to exercise any such powers. The
Administrative Agent and the other Secured Parties shall be accountable only for amounts that they
actually receive as a result of the exercise of such powers, and neither they nor any of their
officers, directors, employees or agents shall be responsible to any Grantor for any act or failure
to act hereunder, except for their own gross negligence or willful misconduct as determined by a
court of competent jurisdiction in a final, non-appealable judgment with respect thereto. In the
event of a public or private sale of Collateral pursuant to Section 6, the Administrative
Agent shall have no responsibility for (i) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relating to any Collateral, whether or
not the Administrative Agent has or is deemed to have knowledge of such matters, or (ii) taking any
steps to clean, repair or otherwise prepare the Collateral for sale.



     8. Grantors Remain Liable. Anything herein to the contrary notwithstanding, (a) each
Grantor shall remain liable to perform all of its duties and obligations under the contracts and
agreements included in the Collateral to the same extent as if this Agreement had not been
executed, (b) the exercise by the Administrative Agent or any other Secured Party of any of the
rights hereunder shall not release any Grantor from any of its duties or obligations under the
contracts and agreements included in the Collateral, (c) neither the Administrative Agent nor any
other Secured Party shall have any obligation or liability under the contracts and agreements
included in the Collateral by reason of this Agreement, nor shall the Administrative Agent nor any
other Secured Party be obligated to perform any of the obligations or duties of any Grantor
thereunder or to take any action to collect or enforce any claim for payment assigned hereunder,
and (d) neither the Administrative Agent nor any other Secured Party shall have any liability in
contract or tort for any Grantor’s acts or omissions.



     9. Releases of Collateral.



     (i) If (x) any Collateral shall be sold or is to be sold as part of or in connection with any
Disposition permitted under the Credit Agreement or under any other Loan Document or (y) the
release of any Collateral shall be approved, authorized or ratified in writing in accordance with
Section 11.01 of the Credit Agreement, then the Administrative Agent, at the request and sole
expense of such Grantor, shall promptly release the Liens created hereby or by any other Security
Instrument on such Collateral in accordance with Section 9.10 of the Credit Agreement.



     (ii) After the occurrence and during the continuance of Collateral Release Event and in
accordance with Section 11.20(a) of the Credit Agreement, the Administrative Agent, at the request
and sole expense of the Company, shall promptly execute and deliver to the Company all releases and
other documents, and take such other action, reasonably necessary for the release of the Liens
created hereby or by any other Security Instrument on the applicable Collateral.



     (iii) The Administrative Agent may release any of the Collateral from this Agreement in
accordance with Section 9.10 of the Credit Agreement or may substitute any of the Collateral for
other



12









 




Collateral without altering, varying or diminishing in any way the force, effect, lien, pledge
or security interest of this Agreement as to any Collateral not expressly released or substituted,
and this Agreement shall continue as a first priority lien on all Collateral not expressly released
or substituted.




     10. Reinstatement of Collateral. Notwithstanding Section 9(ii) above, if a
Collateral Reinstatement Event shall have occurred and in accordance with Section 11.20(b) of the
Credit Agreement, all Collateral and Security Instruments (including this Agreement) shall, at the
Company’s sole cost and expense, be reinstated and all actions reasonably necessary, or reasonably
requested by the Administrative Agent, to provide to the Administrative Agent for the benefit of
the Secured Parties valid, perfected, first priority security interests (subject to Liens permitted
under Section 7.01 of the Credit Agreement) in the Collateral shall be taken within 30 days of such
event, which 30 day period may be extended by the Administrative Agent in its sole discretion.



     11. Continuing Agreement.



     (a) This Agreement shall remain in full force and effect until such time as the Secured
Obligations have been paid in full (other than (i) contingent indemnification obligations as to
which no claim has been asserted and (ii) obligations and liabilities under Secured Cash Management
Agreements and Secured Hedge Agreements either (x) as to which arrangements satisfactory to the
applicable Cash Management Bank or Hedge Bank shall have been made or (y) notice has not been
received by the Administrative Agent from the applicable Cash Management Bank or Hedge Bank, as the
case may be, that amounts are due and payable under such Secured Cash Management Agreement or
Secured Hedge Agreement, as the case may be), the Commitments have expired or been terminated, and
no Letters of Credit remain outstanding (other than Extended Letters of Credit and any other
Letters of Credit the Outstanding Amount of which has been Cash Collateralized or back-stopped by a
letter of credit or other credit support in form and substance reasonably satisfactory to the
Administrative Agent and the applicable L/C Issuer), at which time this Agreement shall be
automatically terminated and the Administrative Agent shall at the expense of the Grantors,
promptly release all of its liens and security interests hereunder and shall execute and deliver,
or authorize the Grantors to prepare and file, all UCC termination statements and/or other
documents reasonably requested by the Grantors evidencing such termination.



     (b) This Agreement shall continue to be effective or be automatically reinstated, as the case
may be, if at any time payment, in whole or in part, of any of the Secured Obligations is rescinded
or must otherwise be restored or returned by the Administrative Agent or any Secured Party as a
preference, fraudulent conveyance or otherwise under any Debtor Relief Law, all as though such
payment had not been made; provided that in the event payment of all or any part of the
Secured Obligations is rescinded or must be restored or returned, all reasonable costs and expenses
(including without limitation any reasonable legal fees and disbursements) incurred by the
Administrative Agent or any Secured Party in defending and enforcing such reinstatement shall be
deemed to be included as a part of the Secured Obligations.



     12. Amendments; Waivers; Consents. None of the terms or provisions of this Agreement
may be waived, amended, supplemented or otherwise modified, nor any consent be given, except in
accordance with Section 11.01 of the Credit Agreement; provided that any update or revision
to any schedules hereto delivered by any Grantor shall not constitute an amendment for purposes of
this Section or Section 11.01 of the Credit Agreement.



     13. Notices. All notices and communications hereunder shall be given to the addresses
and otherwise made in accordance with Section 11.02 of the Credit Agreement; provided that
notices and



13









 




communications to any Grantor other than the Company shall be directed to such Grantor, at the
address of the Company set forth in Section 11.02 of the Credit Agreement.




     14. Expenses; Indemnification and Survival. The Grantors shall, jointly and
severally, (a) pay all reasonable out-of-pocket expenses actually incurred by the Administrative
Agent and each other Secured Party and (b) indemnify each Indemnitee (which for purposes of this
Agreement shall include, without limitation, all Secured Parties), in each case, to the extent any
Borrower would be required to do so pursuant to Section 11.04 of the Credit Agreement. The
obligations of the Grantors under this paragraph shall survive the payment in full of the Secured
Obligations and termination of this Agreement in accordance with its terms.



     15. Right of Setoff; Governing Law; Submission to Jurisdiction; Venue; WAIVER OF JURY
TRIAL; Judgment Currency. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK. Without limiting the general applicability of the
foregoing and the terms of the other Loan Documents to this Agreement and the parties hereto, the
terms of Sections 11.08, 11.14, 11.15 and 11.19 of the Credit Agreement are incorporated herein by
reference, mutatis mutandis, with each reference to the “Borrower” (whether express or by reference
to the Borrower as a “party” thereto) therein being a reference to the Grantors, and the parties
hereto agree to such terms.



     16. Counterparts; Electronic Execution. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other
electronic imaging means shall be effective as delivery of a manually executed counterpart of this
Agreement.



     17. Additional Grantors. At any time after the date of this Agreement, one or more
additional Persons may become a party hereto by executing and delivering to the Administrative
Agent a joinder agreement in form and substance reasonably satisfactory to the Administrative
Agent, pursuant to Section 6.14 of the Credit Agreement. Immediately upon such execution and
delivery of such joinder agreement and without any further action, each such additional Person will
become a party to this Agreement as a “Grantor” and have all of the rights and obligations of a
Grantor hereunder and this Agreement shall be deemed amended by such joinder agreement.



     18. Severability. If any provision of this Agreement is held to be illegal, invalid
or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this
Agreement shall not be affected or impaired thereby and (b) the parties shall endeavor in good
faith negotiations to replace the illegal, invalid or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of the illegal, invalid
or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.



     19. Titles and Captions. Titles and captions of Articles, Sections and subsections in
this Agreement are provided for convenience only, and neither limit nor amplify the provisions of
this Agreement.



     20. Rights of Required Lenders. All rights of the Administrative Agent hereunder, if
not exercised by the Administrative Agent, may be exercised by the Required Lenders.



     21. USA PATRIOT Act. Each Secured Party that is subject to the USA PATRIOT Act (Title
III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”) and the
Administrative Agent (for



14









 




itself and not on behalf of any Secured Party) hereby notifies the Grantors that pursuant to
the requirements of the Act, it is required to obtain, verify and record information that
identifies each Grantor, which information includes the name and address of each Grantor and other
information that will allow such Secured Party or the Administrative Agent, as applicable, to
identify each Grantor in accordance with the Act. Each Grantor shall, promptly following a request
by the Administrative Agent or any Secured Party, provide all documentation and other information
that the Administrative Agent or such Secured Party requests in order to comply with its ongoing
obligations under applicable “know your customer” and anti-money laundering rules and regulations,
including the Act.




     22. Successors and Assigns. The provisions of this Agreement shall be binding upon
each Grantor, its successors and assigns and shall inure, together with the rights and remedies of
the Administrative Agent and the Secured Parties hereunder, to the benefit of the Administrative
Agent and the Secured Parties and their respective successors and permitted assigns; except that no
Grantor may assign or otherwise transfer any of its rights or obligations under this Agreement
without the prior written consent of the Administrative Agent and the other Secured Parties (in
accordance with the Credit Agreement).



     23. ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.



[Signature Pages Follow]





15











 





     Each of the parties hereto has caused a counterpart of this Agreement to be duly executed
and delivered as of the date first above written.



	 	 	 	 	 
	GRANTORS:  	MOHAWK INDUSTRIES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOHAWK CARPET, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOHAWK INTERNATIONAL HOLDINGS (DE)

CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	UNILIN FLOORING NC, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DAL-TILE INTERNATIONAL INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DAL-TILE GROUP INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Mohawk Industries, Inc.

Security Agreement

Signature Page




 









 








	 	 	 	 	 
	 	DAL-TILE CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DAL-TILE DISTRIBUTION, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DAL-TILE SERVICES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DAL-TILE I, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DAL-TILE SHARED SERVICES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DAL-ELIT, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Mohawk Industries, Inc.

Security Agreement

Signature Page











 









 








	 	 	 	 	 
	 	MOHAWK ESV, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOHAWK COMMERCIAL, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ALADDIN MANUFACTURING
CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	WAYN-TEX LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOHAWK CARPET DISTRIBUTION, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOHAWK CARPET TRANSPORTATION OF

GEORGIA, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Mohawk Industries, Inc.

Security Agreement

Signature Page











 









 








	 	 	 	 	 
	 	MOHAWK RESOURCES, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOHAWK SERVICING, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOHAWK FACTORING, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Mohawk Industries, Inc.

Security Agreement

Signature Pages






 









 







Acknowledged and accepted:




BANK OF AMERICA, N.A.,

as Administrative Agent




	 	 	 	 	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Mohawk Industries, Inc.

Security Agreement

Signature Page





 











 





SCHEDULE 3(c)




PLACES OF BUSINESS; ACQUISITIONS; MERGERS; TRADENAMES



	 	 	 	 	 
	 	 	 	 	Location of Books and
	Grantor	 	Chief Executive Office	 	Records
	Mohawk Industries, Inc.

	 	160 South Industrial Blvd.

Calhoun, GA 30701
	 	160 South Industrial Blvd.

Calhoun, GA 30701


	 

	 	 	 	431 S. Green Street

Dalton, GA 30722
	 
	 	 	 	 
	Mohawk Carpet, LLC

	 	160 South Industrial Blvd.

Calhoun, GA 30701
	 	160 South Industrial Blvd.

Calhoun, GA 30701


431 S. Green Street

Dalton, GA 30722
	 
	 	 	 	 
	Mohawk Resources, LLC

	 	160 South Industrial Blvd.

Calhoun, GA 30701
	 	160 South Industrial Blvd.

Calhoun, GA 30701


431 S. Green Street

Dalton, GA 30722
	 
	 	 	 	 
	Aladdin Manufacturing
Corporation

	 	160 South Industrial Blvd.

Calhoun, GA 30701
	 	160 South Industrial Blvd.

Calhoun, GA 30701


431 S. Green Street

Dalton, GA 30722
	 
	 	 	 	 
	Wayn-Tex LLC

	 	160 South Industrial Blvd.

Calhoun, GA 30701
	 	160 South Industrial Blvd.

Calhoun, GA 30701


431 S. Green Street

Dalton, GA 30722
	 
	 	 	 	 
	Mohawk Carpet
Distribution, Inc.

	 	160 South Industrial Blvd.

Calhoun, GA 30701
	 	160 South Industrial Blvd.

Calhoun, GA 30701


431 S. Green Street

Dalton, GA 30722






 









 






	 	 	 	 	 
	 	 	 	 	Location of Books and
	Grantor	 	Chief Executive Office	 	Records
	Mohawk Carpet
Transportation of Georgia,
LLC

	 	160 South Industrial Blvd.

 Calhoun, GA 30701
	 	160 South Industrial Blvd.

Calhoun, GA 30701


431 S. Green Street

Dalton, GA 30722
	 
	 	 	 	 
	Mohawk ESV, Inc.

	 	160 South Industrial Blvd.

Calhoun, GA 30701
	 	160 South Industrial Blvd.

Calhoun, GA 30701


431 S. Green Street

Dalton, GA 30722
	 
	 	 	 	 
	Mohawk Servicing, LLC

	 	160 South Industrial Blvd.

Calhoun, GA 30701
	 	160 South Industrial Blvd.

Calhoun, GA 30701


431 S. Green Street

Dalton, GA 30722
	 
	 	 	 	 
	Mohawk Factoring, Inc.

	 	300 Delaware Avenue,
Suite 1273

Wilmington, DE 19801
	 	300 Delaware Avenue,

Suite 1273

Wilmington, DE 19801


431 S. Green Street

Dalton, GA 30722
	 
	 	 	 	 
	Dal-Tile International Inc.

	 	 7834 CF Hawn Freeway

Dallas, TX 75217
	 	7834 CF Hawn Freeway

Dallas, TX 75217


431 S. Green Street

Dalton, GA 30722
	 
	 	 	 	 
	Dal-Tile Group Inc.

	 	7834 CF Hawn Freeway

Dallas, TX 75217
	 	7834 CF Hawn Freeway

Dallas, TX 75217


431 S. Green Street

Dalton, GA 30722






 









 






	 	 	 	 	 
	 	 	 	 	Location of Books and
	Grantor	 	Chief Executive Office	 	Records
	Dal-Tile Corporation

	 	7834 CF Hawn Freeway

Dallas, TX 75217
	 	7834 CF Hawn Freeway

Dallas, TX 75217


431 S. Green Street

Dalton, GA 30722
	 
	 	 	 	 
	Dal-Elit, LLC

	 	7834 CF Hawn Freeway

Dallas, TX 75217
	 	7834 CF Hawn Freeway

Dallas, TX 75217


431 S. Green Street

Dalton, GA 30722
	 
	 	 	 	 
	Dal-Tile Distribution, Inc.

	 	 7834 CF Hawn Freeway

Dallas, TX 75217
	 	7834 CF Hawn Freeway

Dallas, TX 75217


431 S. Green Street

Dalton, GA 30722
	 
	 	 	 	 
	Dal-Tile Services, Inc.

	 	7834 CF Hawn Freeway

Dallas, TX 75217
	 	7834 CF Hawn Freeway

Dallas, TX 75217


431 S. Green Street

Dalton, GA 30722
	 
	 	 	 	 
	Dal-Tile Shared Services,
Inc.

	 	7834 CF Hawn Freeway 

Dallas, TX 75217
	 	7834 CF Hawn Freeway

Dallas, TX 75217


431 S. Green Street

Dalton, GA 30722
	 
	 	 	 	 
	Unilin Flooring NC, LLC

	 	7834 CF Hawn Freeway

Dallas, TX 75217
	 	7834 CF Hawn Freeway

Dallas, TX 75217


431 S. Green Street

Dalton, GA 30722
	 
	 	 	 	 
	Mohawk International
Holdings (DE) Corporation

	 	160 South Industrial Blvd.

Calhoun, GA 30701
	 	160 South Industrial Blvd.

Calhoun, GA 30701


431 S. Green Street

Dalton, GA 30722






 









 






	 	 	 	 	 
	 	 	 	 	Location of Books and
	Grantor	 	Chief Executive Office	 	Records
	Mohawk Commercial, Inc.

	 	160 South Industrial Blvd.

Calhoun, GA 30701
	 	160 South Industrial Blvd.

Calhoun, GA 30701


431 S. Green Street

Dalton, GA 30722
	 
	 	 	 	 
	Dal-Tile I, L.L.C.

	 	160 South Industrial Blvd.

Calhoun, GA 30701
	 	160 South Industrial Blvd.

Calhoun, GA 30701


431 S. Green Street

Dalton, GA 30722






	 	 	 	 	 
	GRANTOR	 	DATE OF CHANGE	 	MERGER/ ACQUISITION
	ALADDIN MANUFACTURING
CORPORATION

	 	12/31/08
	 	Aladdin Texas, LLC
	 
	 	 	 	 
	MOHAWK CARPET DISTRIBUTION, INC.

	 	12/31/08
	 	Aladdin of Texas Holding, LLC;
	 
	 	 	 	 
	 

	 	12/31/08
	 	Mohawk Brands, Inc.;
	 
	 	 	 	 
	 

	 	12/31/08
	 	Mohawk Carpet Distribution, L.P.
	 
	 	 	 	 
	DAL-TILE SHARED SERVICES, INC.

	 	12/31/08
	 	These entities merged
into Dal-Tile Shared
Services, Inc.: DTG
Tile, LLC and DTL
Tile, LLC
	 
	 	 	 	 
	DAL-TILE DISTRIBUTION, INC.

	 	12/31/08
	 	Dal-Tile SSC, West, Inc
	 
	 	 	 	 
	UNILIN FLOORING NC, LLC

	 	12/31/08
	 	Unilin Holding, Inc.;
	 
	 	 	 	 
	 

	 	08/13/07
	 	Columbia wood flooring assets;
	 
	 	 	 	 
	 

	 	08/13/07
	 	Syarikat Malaysia Wood Industries Sdn Bhd;
	 
	 	 	 	 
	 

	 	08/13/07
	 	Universal Woodfloor (Europe) AB






 









 






SCHEDULE 3(e)




ACCOUNTS EVIDENCED BY A PROMISSORY NOTE OR OTHER INSTRUMENT


None.





 











 





SCHEDULE 3(f)




INVENTORY LOCATIONS




Grantor: Aladdin Manufacturing Corporation




	 	 	 	 	 	 	 
	Address	 	City	 	State	 	Owned/Leased
	1026 Lafayette Hwy.

	 	Roanoke
	 	AL
	 	Owned
	9687 Transportation Way

	 	Fontana
	 	CA
	 	Leased
	31353 Huntwood Ave.

	 	Hayward
	 	CA
	 	Leased
	19672 E. 34th Drive

	 	Denver (Aurora)
	 	CO
	 	Leased
	180 Church Street

	 	Torrington
	 	CT
	 	Owned
	3375 SW 24th Street

	 	Pembroke Park
	 	FL
	 	Leased
	Highway 140

	 	Armuchee
	 	GA
	 	Leased
	447 Union Grove Rd

	 	Calhoun
	 	GA
	 	Owned
	196 S. Industrial Blvd

	 	Calhoun
	 	GA
	 	Owned
	400 Clarence King Pkwy

	 	Calhoun
	 	GA
	 	Owned
	248 S. Industrial Blvd #5 #8

	 	Calhoun
	 	GA
	 	Owned
	Edmond Street

	 	Calhoun
	 	GA
	 	Owned
	1093 Marine Drive

	 	Calhoun
	 	GA
	 	Owned
	450 Clarence King Drive

	 	Calhoun
	 	GA
	 	Owned
	965 North Wall Street

	 	Calhoun
	 	GA
	 	Owned
	311 West Line Street

	 	Calhoun
	 	GA
	 	Owned
	707 East Erwin St

	 	Cartersville
	 	GA
	 	Leased
	1149 Duvall Rd

	 	Chatsworth
	 	GA
	 	Owned
	200 Highland Rd (Treadwell)

	 	Chatsworth
	 	GA
	 	Owned
	235 Industrial Blvd

	 	Chatsworth
	 	GA
	 	Owned
	531 Duvall Rd

	 	Chatsworth
	 	GA
	 	Owned
	949 Industrial Blvd

	 	Chatsworth
	 	GA
	 	Owned
	99 Highland Rd

	 	Chatsworth
	 	GA
	 	Owned
	Hwy 225

	 	Chatsworth
	 	GA
	 	Owned
	121 Goodwin Drive

	 	Dalton
	 	GA
	 	Owned
	2001 Antioch Rd

	 	Dalton
	 	GA
	 	Owned
	506 11th Ave.

	 	Dalton
	 	GA
	 	Owned






- 9 -









 






	 	 	 	 	 	 	 
	Address	 	City	 	State	 	Owned/Leased
	207 Phelps Rd

	 	Dalton
	 	GA
	 	Owned
	2100 S. Hamilton St

	 	Dalton
	 	GA
	 	Owned
	405 Virgil Drive

	 	Dalton
	 	GA
	 	Owned
	406 Virgil Drive

	 	Dalton
	 	GA
	 	Owned
	431 S. Green St.

	 	Dalton
	 	GA
	 	Owned
	104 McFarland Rd

	 	Dalton
	 	GA
	 	Owned
	508 East Morris Street

	 	Dalton
	 	GA
	 	Leased
	2750 Hwy 411 N.

	 	Eton
	 	GA
	 	Owned
	4140 Highway 411 N

	 	Eton
	 	GA
	 	Owned
	5081 Highway 114

	 	Lyerly
	 	GA
	 	Leased
	Route 1, Box 32 Highway 114

	 	Lyerly
	 	GA
	 	Owned
	120 Barnett Dr

	 	Milledgeville
	 	GA
	 	Owned
	243 Huffaker Rd

	 	Rome
	 	GA
	 	Owned
	420 Lavender Drive-Yam Mill

	 	Rome
	 	GA
	 	Owned
	106 John Bankson Dr

	 	Summerville
	 	GA
	 	Owned
	3090 Sugar Valley Road NW

	 	Sugar Valley
	 	GA
	 	Owned
	7782 Magnolia Ind

	 	Tifton
	 	GA
	 	Leased (Bonds)
	2869 Mokumoa St

	 	Honolulu
	 	HI
	 	Leased
	150 E Crossroads Pkw

	 	Bollingbrook
	 	IL
	 	Leased
	15 Walpole Park South

	 	Walpole
	 	MA
	 	Leased
	1910 Park 100 Drive

	 	Glen Burnie
	 	MD
	 	Leased
	28435 A. Automation Blvd

	 	Wixom
	 	MI
	 	Leased
	2359 Waters Drive

	 	Mendota Heights
	 	MN
	 	Leased
	4285 Rider Trail N. Suite 100

	 	Earth City
	 	MO
	 	Leased
	335 Summit Road

	 	Eden
	 	NC
	 	Leased
	2007 Dickenson Ave.

	 	Greenville
	 	NC
	 	Leased
	2107 Dickenson Ave.

	 	Greenville
	 	NC
	 	Owned
	Fieldcrest Road

	 	Laurel Hill
	 	NC
	 	Owned
	100 Main St.

	 	McAdenville
	 	NC
	 	Leased
	550 Cloinger Dr

	 	Thomasville
	 	NC
	 	Owned
	698 US Hwy 46

	 	Teterboro
	 	NJ
	 	Leased






- 10 -









 






	 	 	 	 	 	 	 
	Address	 	City	 	State	 	Owned/Leased
	143 Commerce Blvd

	 	Johnstown
	 	OH
	 	Owned
	3801 Dal-Tile Rd

	 	Muskogee
	 	OK
	 	Owned
	1300 Haynes St

	 	Arcadia
	 	SC
	 	Leased
	2118 Marlborough Rd

	 	Bennettsville
	 	SC
	 	Owned
	2066/2094 Marlborough Rd

	 	Bennettsville
	 	SC
	 	Owned
	Hwy 81

	 	Calhoun Falls
	 	SC
	 	Owned
	300 Landrum Mills Rd

	 	Landrum
	 	SC
	 	Owned
	3100 Industrial Dr

	 	Commerce
	 	TX
	 	Owned
	100 Enterprise Dr

	 	Flower Mound
	 	TX
	 	Leased
	3600 Brittmoore Rd

	 	Houston
	 	TX
	 	Leased
	199 Planter Rd

	 	Sunnyvale
	 	TX
	 	Leased
	3505 W. California Ave

	 	Salt Lake City
	 	UT
	 	Leased
	404 Anderson St

	 	Glasgow
	 	VA
	 	Owned
	351 Floyd Pike

	 	Hillsville
	 	VA
	 	Owned
	223 Downie Rd

	 	Chehalis
	 	WA
	 	Owned
	23210 71st Place S

	 	Kent
	 	WA
	 	Leased
	22 Mine Road

	 	Holden
	 	WV
	 	Building Owned /Land

Leased






Grantor: Wayn-Tex, LLC




	 	 	 	 	 	 	 
	Address	 	City	 	State	 	Owned/Leased
	1026 Lafayette Hwy.

	 	Roanoke
	 	AL
	 	Owned
	9687 Transportation Way

	 	Fontana
	 	CA
	 	Leased
	31353 Huntwood Ave.

	 	Hayward
	 	CA
	 	Leased
	19672 E. 34th Drive

	 	Denver (Aurora)
	 	CO
	 	Leased
	180 Church Street

	 	Torrington
	 	CT
	 	Owned
	3375 SW 24th Street

	 	Pembroke Park
	 	FL
	 	Leased
	Highway 140

	 	Armuchee
	 	GA
	 	Leased
	447 Union Grove Rd

	 	Calhoun
	 	GA
	 	Owned
	196 S. Industrial Blvd

	 	Calhoun
	 	GA
	 	Owned
	400 Clarence King Pkwy

	 	Calhoun
	 	GA
	 	Owned
	248 S. Industrial Blvd #5 #8

	 	Calhoun
	 	GA
	 	Owned






- 11 -









 






	 	 	 	 	 	 	 
	Address	 	City	 	State	 	Owned/Leased
	Edmond Street

	 	Calhoun
	 	GA
	 	Owned
	1093 Marine Drive

	 	Calhoun
	 	GA
	 	Owned
	450 Clarence King Drive

	 	Calhoun
	 	GA
	 	Owned
	965 North Wall Street

	 	Calhoun
	 	GA
	 	Owned
	311 West Line Street

	 	Calhoun
	 	GA
	 	Owned
	707 East Erwin St

	 	Cartersville
	 	GA
	 	Leased
	1149 Duvall Rd

	 	Chatsworth
	 	GA
	 	Owned
	200 Highland Rd (Treadwell)

	 	Chatsworth
	 	GA
	 	Owned
	235 Industrial Blvd

	 	Chatsworth
	 	GA
	 	Owned
	531 Duvall Rd

	 	Chatsworth
	 	GA
	 	Owned
	949 Industrial Blvd

	 	Chatsworth
	 	GA
	 	Owned
	99 Highland Rd

	 	Chatsworth
	 	GA
	 	Owned
	Hwy 225

	 	Chatsworth
	 	GA
	 	Owned
	121 Goodwin Drive

	 	Dalton
	 	GA
	 	Owned
	2001 Antioch Rd

	 	Dalton
	 	GA
	 	Owned
	506 11th Ave.

	 	Dalton
	 	GA
	 	Owned
	207 Phelps Rd

	 	Dalton
	 	GA
	 	Owned
	2100 S. Hamilton St

	 	Dalton
	 	GA
	 	Owned
	405 Virgil Drive

	 	Dalton
	 	GA
	 	Owned
	406 Virgil Drive

	 	Dalton
	 	GA
	 	Owned
	431 S. Green St.

	 	Dalton
	 	GA
	 	Owned
	104 McFarland Rd

	 	Dalton
	 	GA
	 	Owned
	508 East Morris Street

	 	Dalton
	 	GA
	 	Leased
	2750 Hwy 411 N.

	 	Eton
	 	GA
	 	Owned
	4140 Highway 411 N

	 	Eton
	 	GA
	 	Owned
	5081 Highway 114

	 	Lyerly
	 	GA
	 	Leased
	Route 1, Box 32 Highway 114

	 	Lyerly
	 	GA
	 	Owned
	120 Barnett Dr

	 	Milledgeville
	 	GA
	 	Owned
	243 Huffaker Rd

	 	Rome
	 	GA
	 	Owned
	420 Lavender Drive-Yam Mill

	 	Rome
	 	GA
	 	Owned
	106 John Bankson Dr

	 	Summerville
	 	GA
	 	Owned






- 12 -









 






	 	 	 	 	 	 	 
	Address	 	City	 	State	 	Owned/Leased
	3090 Sugar Valley Road NW

	 	Sugar Valley
	 	GA
	 	Owned
	7782 Magnolia Ind

	 	Tifton
	 	GA
	 	Leased (Bonds)
	2869 Mokumoa St

	 	Honolulu
	 	HI
	 	Leased
	150 E Crossroads Pkw

	 	Bollingbrook
	 	IL
	 	Leased
	15 Walpole Park South

	 	Walpole
	 	MA
	 	Leased
	1910 Park 100 Drive

	 	Glen Burnie
	 	MD
	 	Leased
	28435 A. Automation Blvd

	 	Wixom
	 	MI
	 	Leased
	2359 Waters Drive

	 	Mendota Heights
	 	MN
	 	Leased
	4285 Rider Trail N. Suite 100

	 	Earth City
	 	MO
	 	Leased
	335 Summit Road

	 	Eden
	 	NC
	 	Leased
	2007 Dickenson Ave.

	 	Greenville
	 	NC
	 	Leased
	2107 Dickenson Ave.

	 	Greenville
	 	NC
	 	Owned
	Fieldcrest Road

	 	Laurel Hill
	 	NC
	 	Owned
	100 Main St.

	 	McAdenville
	 	NC
	 	Leased
	550 Cloinger Dr

	 	Thomasville
	 	NC
	 	Owned
	698 US Hwy 46

	 	Teterboro
	 	NJ
	 	Leased
	143 Commerce Blvd

	 	Johnstown
	 	OH
	 	Owned
	3801 Dal-Tile Rd

	 	Muskogee
	 	OK
	 	Owned
	1300 Haynes St

	 	Arcadia
	 	SC
	 	Leased
	2118 Marlborough Rd

	 	Bennettsville
	 	SC
	 	Owned
	2066/2094 Marlborough Rd

	 	Bennettsville
	 	SC
	 	Owned
	Hwy 81

	 	Calhoun Falls
	 	SC
	 	Owned
	300 Landrum Mills Rd

	 	Landrum
	 	SC
	 	Owned
	3100 Industrial Dr

	 	Commerce
	 	TX
	 	Owned
	100 Enterprise Dr

	 	Flower Mound
	 	TX
	 	Leased
	3600 Brittmoore Rd

	 	Houston
	 	TX
	 	Leased
	199 Planter Rd

	 	Sunnyvale
	 	TX
	 	Leased
	3505 W. California Ave

	 	Salt Lake City
	 	UT
	 	Leased
	404 Anderson St

	 	Glasgow
	 	VA
	 	Owned
	351 Floyd Pike

	 	Hillsville
	 	VA
	 	Owned
	223 Downie Rd

	 	Chehalis
	 	WA
	 	Owned






- 13 -









 






	 	 	 	 	 	 	 
	Address	 	City	 	State	 	Owned/Leased
	23210 71st Place S

	 	Kent
	 	WA
	 	Leased
	22 Mine Road

	 	Holden
	 	WV
	 	Building Owned /Land

Leased






Grantor: Mohawk Carpet Distribution, Inc.




	 	 	 	 	 	 	 
	Address	 	City	 	State	 	Owned/Leased
	1026 Lafayette Hwy.

	 	Roanoke
	 	AL
	 	Owned
	9687 Transportation Way

	 	Fontana
	 	CA
	 	Leased
	31353 Huntwood Ave.

	 	Hayward
	 	CA
	 	Leased
	19672 E. 34th Drive

	 	Denver (Aurora)
	 	CO
	 	Leased
	180 Church Street

	 	Torrington
	 	CT
	 	Owned
	3375 SW 24th Street

	 	Pembroke Park
	 	FL
	 	Leased
	Highway 140

	 	Armuchee
	 	GA
	 	Leased
	447 Union Grove Rd

	 	Calhoun
	 	GA
	 	Owned
	196 S. Industrial Blvd

	 	Calhoun
	 	GA
	 	Owned
	400 Clarence King Pkwy

	 	Calhoun
	 	GA
	 	Owned
	248 S. Industrial Blvd #5 #8

	 	Calhoun
	 	GA
	 	Owned
	Edmond Street

	 	Calhoun
	 	GA
	 	Owned
	1093 Marine Drive

	 	Calhoun
	 	GA
	 	Owned
	450 Clarence King Drive

	 	Calhoun
	 	GA
	 	Owned
	965 North Wall Street

	 	Calhoun
	 	GA
	 	Owned
	311 West Line Street

	 	Calhoun
	 	GA
	 	Owned
	707 East Erwin St

	 	Cartersville
	 	GA
	 	Leased
	1149 Duvall Rd

	 	Chatsworth
	 	GA
	 	Owned
	200 Highland Rd (Treadwell)

	 	Chatsworth
	 	GA
	 	Owned
	235 Industrial Blvd

	 	Chatsworth
	 	GA
	 	Owned
	531 Duvall Rd

	 	Chatsworth
	 	GA
	 	Owned
	949 Industrial Blvd

	 	Chatsworth
	 	GA
	 	Owned
	99 Highland Rd

	 	Chatsworth
	 	GA
	 	Owned
	Hwy 225

	 	Chatsworth
	 	GA
	 	Owned
	121 Goodwin Drive

	 	Dalton
	 	GA
	 	Owned
	2001 Antioch Rd

	 	Dalton
	 	GA
	 	Owned






- 14 -









 






	 	 	 	 	 	 	 
	Address	 	City	 	State	 	Owned/Leased
	506 11th Ave.

	 	Dalton
	 	GA
	 	Owned
	207 Phelps Rd

	 	Dalton
	 	GA
	 	Owned
	2100 S. Hamilton St

	 	Dalton
	 	GA
	 	Owned
	405 Virgil Drive

	 	Dalton
	 	GA
	 	Owned
	406 Virgil Drive

	 	Dalton
	 	GA
	 	Owned
	431 S. Green St.

	 	Dalton
	 	GA
	 	Owned
	104 McFarland Rd

	 	Dalton
	 	GA
	 	Owned
	508 East Morris Street

	 	Dalton
	 	GA
	 	Leased
	2750 Hwy 411 N.

	 	Eton
	 	GA
	 	Owned
	4140 Highway 411 N

	 	Eton
	 	GA
	 	Owned
	5081 Highway 114

	 	Lyerly
	 	GA
	 	Leased
	Route 1, Box 32 Highway 114

	 	Lyerly
	 	GA
	 	Owned
	120 Barnett Dr

	 	Milledgeville
	 	GA
	 	Owned
	243 Huffaker Rd

	 	Rome
	 	GA
	 	Owned
	420 Lavender Drive-Yam Mill

	 	Rome
	 	GA
	 	Owned
	106 John Bankson Dr

	 	Summerville
	 	GA
	 	Owned
	3090 Sugar Valley Road NW

	 	Sugar Valley
	 	GA
	 	Owned
	7782 Magnolia Ind

	 	Tifton
	 	GA
	 	Leased (Bonds)
	2869 Mokumoa St

	 	Honolulu
	 	HI
	 	Leased
	150 E Crossroads Pkw

	 	Bollingbrook
	 	IL
	 	Leased
	15 Walpole Park South

	 	Walpole
	 	MA
	 	Leased
	1910 Park 100 Drive

	 	Glen Burnie
	 	MD
	 	Leased
	28435 A. Automation Blvd

	 	Wixom
	 	MI
	 	Leased
	2359 Waters Drive

	 	Mendota Heights
	 	MN
	 	Leased
	4285 Rider Trail N. Suite 100

	 	Earth City
	 	MO
	 	Leased
	335 Summit Road

	 	Eden
	 	NC
	 	Leased
	2007 Dickenson Ave.

	 	Greenville
	 	NC
	 	Leased
	2107 Dickenson Ave.

	 	Greenville
	 	NC
	 	Owned
	Fieldcrest Road

	 	Laurel Hill
	 	NC
	 	Owned
	100 Main St.

	 	McAdenville
	 	NC
	 	Leased
	550 Cloinger Dr

	 	Thomasville
	 	NC
	 	Owned






- 15 -









 






	 	 	 	 	 	 	 
	Address	 	City	 	State	 	Owned/Leased
	698 US Hwy 46

	 	Teterboro
	 	NJ
	 	Leased
	143 Commerce Blvd

	 	Johnstown
	 	OH
	 	Owned
	3801 Dal-Tile Rd

	 	Muskogee
	 	OK
	 	Owned
	1300 Haynes St

	 	Arcadia
	 	SC
	 	Leased
	2118 Marlborough Rd

	 	Bennettsville
	 	SC
	 	Owned
	2066/2094 Marlborough Rd

	 	Bennettsville
	 	SC
	 	Owned
	Hwy 81

	 	Calhoun Falls
	 	SC
	 	Owned
	300 Landrum Mills Rd

	 	Landrum
	 	SC
	 	Owned
	3100 Industrial Dr

	 	Commerce
	 	TX
	 	Owned
	100 Enterprise Dr

	 	Flower Mound
	 	TX
	 	Leased
	3600 Brittmoore Rd

	 	Houston
	 	TX
	 	Leased
	199 Planter Rd

	 	Sunnyvale
	 	TX
	 	Leased
	3505 W. California Ave

	 	Salt Lake City
	 	UT
	 	Leased
	404 Anderson St

	 	Glasgow
	 	VA
	 	Owned
	351 Floyd Pike

	 	Hillsville
	 	VA
	 	Owned
	223 Downie Rd

	 	Chehalis
	 	WA
	 	Owned
	23210 71st Place S

	 	Kent
	 	WA
	 	Leased
	22 Mine Road

	 	Holden
	 	WV
	 	Building Owned /Land

Leased






Grantor: Dal-Tile Corporation




	 	 	 	 	 	 	 
	Address	 	City	 	State	 	Owned/Leased
	1470 County Rd. 21 S.

	 	Fayette
	 	AL
	 	 Leased
	1439-B South 40th Ave

	 	Phoenix
	 	AZ
	 	 Leased
	2950-1 E. Broadway Rd.

	 	Phoenix
	 	AZ
	 	 Leased
	3511 E. Broadway Rd.

	 	Phoenix
	 	AZ
	 	 Leased
	135 Via Trevizio

	 	Corona
	 	CA
	 	 Leased
	2091 E. Howell Ave.

	 	Anaheim
	 	CA
	 	 Leased
	2303 Merced St.

	 	San Leandro
	 	CA
	 	 Leased
	2461 N. Argyle Ave.

	 	Fresno
	 	CA
	 	 Leased
	295 N. Willow Ave.

	 	City of Industry
	 	CA
	 	 Leased
	3625 E. Jurupa

	 	Ontario
	 	CA
	 	 Leased






- 16 -









 






	 	 	 	 	 	 	 
	Address	 	City	 	State	 	Owned/Leased
	590 Martin Dr.

	 	Santa Clara
	 	CA
	 	 Leased
	7484 Raytheon Rd. Ste B

	 	San Diego
	 	CA
	 	 Leased
	7865 Ostrow St.

	 	San Diego
	 	CA
	 	 Leased
	7902 Sepulveda Blvd.

	 	Van Nuys
	 	CA
	 	 Leased
	40 Graniteridge Rd. Unit 1

	 	Concord, Ontario

Canada
	 	CD
	 	 Leased
	3593 Windsor Drive

	 	Denver
	 	CO
	 	 Leased
	735 S. Huron

	 	Denver
	 	CO
	 	 Leased
	852 S. Jason Suite 8

	 	Denver
	 	CO
	 	 Leased
	1147 Gateway Blvd.

	 	Boynton Beach
	 	FL
	 	 Leased
	1800 Cypress Lake Dr.
Suite 500

	 	Orlando
	 	FL
	 	 Leased
	3905 Center Loop Suite 400

	 	Orlando
	 	FL
	 	 Leased
	4311 Shader Rd. Suite 400

	 	Orlando
	 	FL
	 	 Leased
	7576 Kings Pointe Parkway

	 	Orlando
	 	FL
	 	 Leased
	8121 25th Court E.

	 	Sarasota
	 	FL
	 	 Leased
	8788 N.W. 27th St.

	 	Miami
	 	FL
	 	 Leased
	8800 N.W. 13 Terrace

	 	Miami
	 	FL
	 	 Leased
	101 Guthrie Way

	 	Atlanta
	 	GA
	 	 Leased
	1441 Ellsworth Industrial
NW

	 	Atlanta
	 	GA
	 	 Leased
	1630 Satellite Blvd., NW
Suite 570

	 	Atlanta
	 	GA
	 	 Leased
	1200 North Nimitz Highway

	 	Honolulu
	 	HI
	 	 Leased
	2869 Mokumoa St

	 	Honolulu
	 	HI
	 	 Leased
	1601 Pratt Blvd.

	 	Chicago
	 	IL
	 	 Leased
	15300 W. 101st Terrace

	 	Lenexa
	 	KS
	 	 Leased
	15380 W. 101st Terrace

	 	Lenexa
	 	KS
	 	 Leased
	675 Melanie Ln.

	 	Lewisport
	 	KY
	 	 Owned
	700 Elmwood Pkwy. Suite B

	 	New Orleans
	 	LA
	 	 Leased
	80 N. Commerce Way

	 	Woburn
	 	MA
	 	 Leased
	1470 Progress Way

	 	Eldersburg
	 	MD
	 	 Leased
	812-A Oregon Ave.

	 	Linthicum
	 	MD
	 	 Leased
	2059 Westport Center Dr.

	 	St. Louis
	 	MO
	 	 Leased






- 17 -









 






	 	 	 	 	 	 	 
	Address	 	City	 	State	 	Owned/Leased
	400 Innovation Ave. Ste
100

	 	Morrisville
	 	NC
	 	 Leased
	405 Forsyth Hall Dr.

	 	Charlotte
	 	NC
	 	 Leased
	5901-K Long Creek Park Dr

	 	Charlotte
	 	NC
	 	 Leased
	9301 Globe Center Dr

	 	Morrisville
	 	NC
	 	 Leased
	1250 Valley Brook Ave.

	 	Lyndhurst
	 	NJ
	 	 Leased
	5 Corporate Dr.

	 	Cranbury
	 	NJ
	 	 Leased
	451 Grumman Road

	 	Bethpage
	 	NY
	 	 Leased
	3744 W. Sunset Rd., Suite
D

	 	Las Vegas
	 	NV
	 	 Leased
	3755 W. Sunset Rd, Suite G

	 	Las Vegas
	 	NV
	 	 Leased
	103 S. Clark St.

	 	Olean
	 	NY
	 	 Owned
	4650 Lake Forest Dr.
Suite 540

	 	Cincinnati
	 	OH
	 	 Leased
	3240 N.W. 29th Avenue

	 	Portland
	 	OR
	 	 Leased
	104 Parkway View Dr.

	 	Pittsburgh
	 	PA
	 	 Leased
	211 N. Fourth St.

	 	Gettysburg
	 	PA
	 	 Leased
	790 Vista Park Drive

	 	Pittsburg
	 	PA
	 	 Leased
	1005 Placid Avenue

	 	Plano
	 	TX
	 	 Leased
	11185 Pellicano

	 	El Paso
	 	TX
	 	 Leased
	1119 Arion Pkwy.

	 	San Antonio
	 	TX
	 	 Leased
	11711 Fuqua St.

	 	Houston
	 	TX
	 	 Leased
	11850 Hempstead Hwy.
Suite 170

	 	Houston
	 	TX
	 	 Leased
	11850 Hempstead Hwy.
Suite 180

	 	Houston
	 	TX
	 	 Leased
	12001 Railroad Dr.

	 	El Paso
	 	TX
	 	 Leased
	1625 Crescent Cir. Suite
300

	 	Carrollton
	 	TX
	 	 Leased
	2250 LBJ Frwy. Suite 300

	 	Dallas
	 	TX
	 	 Leased
	2515 Brockton Dr. Suite
101

	 	Austin
	 	TX
	 	 Leased
	325 Spring Hill Dr.

	 	Houston
	 	TX
	 	 Leased
	3600 Brittmoore Rd

	 	Houston
	 	TX
	 	 Leased
	4602 Perrin Creek Bldg 12

	 	San Antonio
	 	TX
	 	 Leased
	7834 C. F. Hawn Frwy.

	 	Dallas
	 	TX
	 	 Owned






- 18 -









 






	 	 	 	 	 	 	 
	Address	 	City	 	State	 	Owned/Leased
	250 W. Gregson Ave.

	 	Salt Lake City
	 	UT
	 	 Leased
	3037 S. 300 W.

	 	Salt Lake City
	 	UT
	 	 Leased
	3505 W. California Ave

	 	Salt Lake City
	 	UT
	 	 Leased
	11850 Livingston Rd.
Suite 100

	 	Manassas
	 	VA
	 	 Leased
	14790 Flint Lee Rd. Suite
200

	 	Chantilly
	 	VA
	 	 Leased
	6760 Gravel Ave.

	 	Alexandria
	 	VA
	 	 Leased
	3808 North Sullivan Rd

	 	Spokane
	 	WA
	 	 Leased
	4000 E. Broadway

	 	Spokane
	 	WA
	 	 Leased
	540 S. Front St.

	 	Seattle
	 	WA
	 	 Leased
	6020 6th Avenue S.

	 	Seattle
	 	WA
	 	 Leased






Grantor: Dal-Tile Distribution, Inc.




	 	 	 	 	 	 	 
	Address	 	City	 	State	 	Owned/Leased
	1470 County Rd. 21 S.

	 	Fayette
	 	AL
	 	Owned
	1439-B South 40th Ave

	 	Phoenix
	 	AZ
	 	Leased
	2950-1 E. Broadway Rd.

	 	Phoenix
	 	AZ
	 	Leased
	3511 E. Broadway Rd.

	 	Phoenix
	 	AZ
	 	Leased
	135 Via Trevizio

	 	Corona
	 	CA
	 	Leased
	2091 E. Howell Ave.

	 	Anaheim
	 	CA
	 	Leased
	2303 Merced St.

	 	San Leandro
	 	CA
	 	Leased
	2461 N. Argyle Ave.

	 	Fresno
	 	CA
	 	Leased
	295 N. Willow Ave.

	 	City of Industry
	 	CA
	 	Leased
	3625 E. Jurupa

	 	Ontario
	 	CA
	 	Leased
	590 Martin Dr.

	 	Santa Clara
	 	CA
	 	Leased
	7484 Raytheon Rd. Ste B

	 	San Diego
	 	CA
	 	Leased
	7865 Ostrow St.

	 	San Diego
	 	CA
	 	Leased
	7902 Sepulveda Blvd.

	 	Van Nuys
	 	CA
	 	Leased
	40 Graniteridge Rd. Unit 1

	 	Concord, Ontario

Canada
	 	CD
	 	Leased
	3593 Windsor Drive

	 	Denver
	 	CO
	 	Leased
	735 S. Huron

	 	Denver
	 	CO
	 	Leased
	852 S. Jason Suite 8

	 	Denver
	 	CO
	 	Leased






- 19 -









 






	 	 	 	 	 	 	 
	Address	 	City	 	State	 	Owned/Leased
	1147 Gateway Blvd.

	 	Boynton Beach
	 	FL
	 	Leased
	1800 Cypress Lake Dr. Suite 500

	 	Orlando
	 	FL
	 	Leased
	3905 Center Loop Suite 400

	 	Orlando
	 	FL
	 	Leased
	4311 Shader Rd. Suite 400

	 	Orlando
	 	FL
	 	Leased
	7576 Kings Pointe Parkway

	 	Orlando
	 	FL
	 	Leased
	8121 25th Court E.

	 	Sarasota
	 	FL
	 	Leased
	8788 N.W. 27th St.

	 	Miami
	 	FL
	 	Leased
	8800 N.W. 13 Terrace

	 	Miami
	 	FL
	 	Leased
	101 Guthrie Way

	 	Atlanta
	 	GA
	 	Leased
	1441 Ellsworth Industrial NW

	 	Atlanta
	 	GA
	 	Leased
	1630 Satellite Blvd., NW Suite 570

	 	Atlanta
	 	GA
	 	Leased
	1200 North Nimitz Highway

	 	Honolulu
	 	HI
	 	Leased
	2869 Mokumoa St

	 	Honolulu
	 	HI
	 	Leased
	1601 Pratt Blvd.

	 	Chicago
	 	IL
	 	Leased
	15300 W. 101st Terrace

	 	Lenexa
	 	KS
	 	Leased
	15380 W. 101st Terrace

	 	Lenexa
	 	KS
	 	Leased
	675 Melanie Ln.

	 	Lewisport
	 	KY
	 	Owned
	700 Elmwood Pkwy. Suite B

	 	New Orleans
	 	LA
	 	Leased
	80 N. Commerce Way

	 	Woburn
	 	MA
	 	Leased
	1470 Progress Way

	 	Eldersburg
	 	MD
	 	Leased
	812-A Oregon Ave.

	 	Linthicum
	 	MD
	 	Leased
	2059 Westport Center Dr.

	 	St. Louis
	 	MO
	 	Leased
	400 Innovation Ave. Ste 100

	 	Morrisville
	 	NC
	 	Leased
	405 Forsyth Hall Dr.

	 	Charlotte
	 	NC
	 	Leased
	5901-K Long Creek Park Dr

	 	Charlotte
	 	NC
	 	Leased
	9301 Globe Center Dr

	 	Morrisville
	 	NC
	 	Leased
	1250 Valley Brook Ave.

	 	Lyndhurst
	 	NJ
	 	Leased
	5 Corporate Dr.

	 	Cranbury
	 	NJ
	 	Leased
	451 Grumman Road

	 	Bethpage
	 	NY
	 	Leased
	3744 W. Sunset Rd., Suite D

	 	Las Vegas
	 	NV
	 	Leased
	3755 W. Sunset Rd, Suite G

	 	Las Vegas
	 	NV
	 	Leased
	103 S. Clark St.

	 	Olean
	 	NY
	 	Owned






- 20 -









 






	 	 	 	 	 	 	 
	Address	 	City	 	State	 	Owned/Leased
	4650 Lake Forest Dr. Suite 540

	 	Cincinnati
	 	OH
	 	Leased
	3240 N.W. 29th Avenue

	 	Portland
	 	OR
	 	Leased
	104 Parkway View Dr.

	 	Pittsburgh
	 	PA
	 	Leased
	211 N. Fourth St.

	 	Gettysburg
	 	PA
	 	Leased
	790 Vista Park Drive

	 	Pittsburg
	 	PA
	 	Leased
	1005 Placid Avenue

	 	Plano
	 	TX
	 	Leased
	11185 Pellicano

	 	El Paso
	 	TX
	 	Leased
	1119 Arion Pkwy.

	 	San Antonio
	 	TX
	 	Leased
	11711 Fuqua St.

	 	Houston
	 	TX
	 	Leased
	11850 Hempstead Hwy. Suite 170

	 	Houston
	 	TX
	 	Leased
	11850 Hempstead Hwy. Suite 180

	 	Houston
	 	TX
	 	Leased
	12001 Railroad Dr.

	 	El Paso
	 	TX
	 	Owned
	1625 Crescent Cir. Suite 300

	 	Carrollton
	 	TX
	 	Leased
	2250 LBJ Frwy. Suite 300

	 	Dallas
	 	TX
	 	Leased
	2515 Brockton Dr. Suite 101

	 	Austin
	 	TX
	 	Leased
	325 Spring Hill Dr.

	 	Houston
	 	TX
	 	Leased
	3600 Brittmoore Rd

	 	Houston
	 	TX
	 	Leased
	4602 Perrin Creek Bldg 12

	 	San Antonio
	 	TX
	 	Leased
	7834 C. F. Hawn Frwy.

	 	Dallas
	 	TX
	 	Owned
	250 W. Gregson Ave.

	 	Salt Lake City
	 	UT
	 	Leased
	3037 S. 300 W.

	 	Salt Lake City
	 	UT
	 	Leased
	3505 W. California Ave

	 	Salt Lake City
	 	UT
	 	Leased
	11850 Livingston Rd. Suite 100

	 	Manassas
	 	VA
	 	Leased
	14790 Flint Lee Rd. Suite 200

	 	Chantilly
	 	VA
	 	Leased
	6760 Gravel Ave.

	 	Alexandria
	 	VA
	 	Leased
	3808 North Sullivan Rd

	 	Spokane
	 	WA
	 	Leased
	4000 E. Broadway

	 	Spokane
	 	WA
	 	Leased
	540 S. Front St.

	 	Seattle
	 	WA
	 	Leased
	6020 6th Avenue S.

	 	Seattle
	 	WA
	 	Leased






- 21 -









 






Grantor: Unilin Flooring NC, LLC




	 	 	 	 	 	 	 
	Address	 	City	 	State	 	Owned/Leased
	22 Mine Road

	 	Holden
	 	West Virginia
	 	Building Owned / Land Leased
	575 Kentuck Rd.

	 	Danville
	 	Virginia
	 	Owned
	100 Maxine Rd.

	 	Danville
	 	Kentucky
	 	Owned
	201 Highway 9 Spur

	 	Melbourne
	 	Arkansas
	 	Owned
	3284 Denton Road

	 	Thomasville
	 	North Carolina
	 	Owned
	550 Cloniger Drive

	 	Thomasville
	 	North Carolina
	 	Owned
	9687 Transportation Way

	 	Fontana
	 	California
	 	Owned
	915 E. Sunrise Avenue

	 	Thomasville
	 	North Carolina
	 	Leased







- 22 -











 



EXHIBIT G-2


FORM OF PLEDGE AGREEMENT



PLEDGE AGREEMENT




     THIS PLEDGE AGREEMENT (as amended, restated, extended, supplemented or otherwise modified from
time to time, this “Agreement”) is entered into as of July 8, 2011 among MOHAWK INDUSTRIES,
INC., a Delaware corporation (the “Company”), the Domestic Subsidiaries of the Company
identified as “Pledgors” on the signature pages hereto, each Additional Pledgor (as defined below)
party hereto after the date hereof (collectively with the Company, the “Pledgors”) and Bank
of America, N.A., in its capacity as administrative agent (in such capacity, the
“Administrative Agent”) for the Secured Parties.



PRELIMINARY STATEMENTS




     Pursuant to that certain Credit Agreement dated as of the date hereof (as amended, restated,
extended supplemented or otherwise modified from time to time, the “Credit Agreement”)
among the Company, the Foreign Borrowers (as defined therein, and together with the Company, the
“Borrowers”), the lenders from time to time party thereto (the “Lenders”), the
Administrative Agent, the Swing Line Lender and each L/C Issuer, the Lenders and the L/C Issuers
have agreed to make Credit Extensions to the Borrowers upon the terms and subject to the conditions
set forth therein.



     Pursuant to the terms of that certain Domestic Guaranty dated as of the date hereof, certain
Domestic Subsidiaries of the Company have guaranteed the payment and performance of the
Obligations.



     It is a condition precedent to the obligation of the Lenders and the L/C Issuers to make
Credit Extensions to the Borrowers under the Credit Agreement that the Pledgors shall have executed
and delivered this Agreement to the Administrative Agent, for the ratable benefit of the Secured
Parties.



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, and to induce the Administrative Agent, the Lenders and
the L/C Issuers to enter into the Credit Agreement and to induce the Lenders and the L/C Issuers to
make Credit Extensions to the Borrowers thereunder, each Pledgor hereby agrees with the
Administrative Agent, for the ratable benefit of the Secured Parties, as follows:



     1. Definitions. Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to such terms in the Credit Agreement, and the following terms shall have the
meanings set forth in the UCC: Accession; Financial Asset; Goods; Investment Company Security;
Investment Property; General Intangibles; Proceeds; Security; Security Entitlements and Securities
Account. In addition, the following terms shall have the meanings set forth below:



     “Additional Pledgor” means each Person that becomes a Pledgor pursuant to Section
18.



     “Issuer” means any issuer of any Investment Property or Equity Interests in any
partnership or limited liability company (including, without limitation, any Issuer as defined in
the UCC).



     “Permitted Liens” means Liens permitted to exist under Section 7.01 of the
Credit Agreement.



     “Pledged Collateral” has the meaning provided in Section 2(a).



     “Pledged Equity” means, as to each Pledgor, (i) all of the Equity Interests of any
direct or indirect Domestic Subsidiary of the Company and (ii) sixty-five percent (65%) of all
issued and outstanding shares of all classes of voting Equity Interests and sixty-five percent
(65%) of all issued and outstanding shares of all classes of non-voting Equity Interests of any
First-Tier Foreign Subsidiary, in each case, which such Pledgor has, or at any time hereafter
acquires, an interest or the power to transfer rights therein



 









 




(including, without limitation, any Investment Property or General Intangibles composing or
related to such Equity Interests), together with the certificates (or other agreements or
instruments), if any, evidencing such Equity Interests, and all options and other rights,
contractual or otherwise, with respect thereto, including, but not limited to (a) all Equity
Interests, money, Securities, Security Entitlements and other Investment Property, dividends,
rights, General Intangibles, Goods and other property at any time and from time to time
representing a dividend thereon, or representing a distribution or return of capital upon or in
respect thereof, or resulting from a stock split, revision, reclassification or other exchange
therefor, and any subscriptions, warrants, rights or options issued to the holder thereof, or
otherwise in respect thereof, (b) in the event of any consolidation or merger involving the Issuer
thereof and in which such Issuer is not the surviving Person, all shares of each class of the
Equity Interests of the successor Person formed by or resulting from such consolidation or merger,
to the extent that such successor Person is directly owned by a Pledgor, (c) such Pledgor’s capital
account, if any, and its interest as a partner or member, as applicable, in the net cash flow, net
profit and net loss, and items of income, gain, loss, deduction and credit of any applicable Issuer
of such Equity Interests, and (d) all of the other economic rights, titles and interests of such
Pledgor as a shareholder or owner of such Issuer, whether set forth in the articles, bylaws or
other governing document of such Issuer, by separate agreement or otherwise relating to the
foregoing. As of the date hereof (or such later date as the following Schedule may be supplemented
or updated), and without limiting the generality of the foregoing, the Equity Interests of (i) each
direct and indirect Domestic Subsidiary of the Company and (ii) each First-Tier Foreign Subsidiary
owned by each Pledgor are as set forth on Schedule 1(b) hereto (including the total number
of shares outstanding, number of shares owned by such Pledgor and percentage ownership).




     “Restricted Securities Collateral” has the meaning provided in Section
7(b)(ii).



     “Securities Act” means the Securities Act of 1933, including all amendments thereto
and regulations promulgated thereunder.



     “UCC” means the Uniform Commercial Code as in effect in the State of New York;
provided that, if perfection or the effect of perfection or non-perfection or the priority
of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect
in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in
effect from time to time in such other jurisdiction for purposes of the provisions hereof relating
to such perfection, effect of perfection or non-perfection or priority.



     With reference to this Agreement and each other Loan Document, unless otherwise specified
herein or in such other Loan Document: (i) the definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined, (ii) whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms, (iii) the words
“include”, “includes” and “including” shall be deemed to be followed by the phrase “without
limitation”, (iv) the word “will” shall be construed to have the same meaning and effect as the
word “shall”, (v) any definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other document, as from
time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (vi) any reference herein to any Person
shall be construed to include such Person’s permitted successors and assigns, (vii) the words
“herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (viii) all references
herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement, (ix) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and contract rights, (x) the
term “documents” includes any and all instruments, documents, agreements, certificates, notices,
reports, financial statements and



2









 




other writings, however evidenced, whether in physical or electronic form, (xi) in the
computation of periods of time from a specified date to a later specified date, the word “from”
means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word
“through” means “to and including”, (xii) Section headings herein and in the other Loan Documents
are included for convenience of reference only and shall not affect the interpretation of this
Agreement or any other Loan Document and (xiii) where the context requires, terms relating to the
Collateral or any part thereof, when used in relation to a Pledgor, shall refer to such Pledgor’s
Collateral or the relevant part thereof. Whenever any provision contained in this Agreement refers
to the knowledge (or an analogous phrase) of any Pledgor, such words are intended to signify that
such Pledgor (or any Responsible Officer of such Pledgor) has actual knowledge or awareness of a
particular fact or circumstance or that such Pledgor (or any Responsible Officer of such Pledgor),
if it had exercised reasonable and customary diligence, would have known or been aware of such fact
or circumstance.




     2. (a) Pledge and Grant of Security Interest in the Collateral. To secure the prompt
payment and performance in full when due, whether by lapse of time, acceleration, mandatory
prepayment or otherwise, of the Obligations (subject to Section 2(b) below), each Pledgor
hereby grants, pledges and collaterally assigns to the Administrative Agent, for the benefit of the
Secured Parties, a continuing security interest in, and a right to set off against, any and all
right, title and interest of such Pledgor in and to the Pledged Equity of such Pledgor and any
Proceeds thereof, whether now owned or existing or owned, acquired, or arising hereafter
(collectively, the “Pledged Collateral”); provided that in no event shall the
Pledged Collateral include or the security interest attach to any agreement with a Person other
than a Pledgor or a Subsidiary or Affiliate of a Pledgor that specifically prohibits in writing the
pledge of, or granting of a security interest or a Lien in (but not merely the assignment of or of
any interest in), such agreement or any of the Pledgor’s rights under such agreement without the
consent of such other Person (unless such prohibition is not enforceable or is otherwise
ineffective under applicable Law or the consent of such other Person has been obtained).



     (b) Limitation on Amounts Secured. Notwithstanding anything herein or in any other
Loan Document to the contrary, the aggregate amount of Obligations secured by the Pledged
Collateral hereunder shall be expressly limited to an amount equal to the lesser of (i) the
aggregate amount permitted to be secured under Section 4.9 of the 2002 Indenture without requiring
the notes issued under the 2002 Indenture to be secured equally and ratably by the Pledged
Collateral and (ii) the aggregate amount permitted to be secured under Section 2.8 of that certain
First Supplemental Indenture dated as of January 17, 2006 supplementing the 2006 Indenture without
requiring the notes issued under the 2006 Indenture to be secured equally and ratably by the
Pledged Collateral; provided that for purposes of this Section, (x) the 2002 Indenture and
2006 Indenture shall refer to such agreements as in effect on the Closing Date without giving
effect to any subsequent amendments, restatements, supplements or modifications thereto that would
make the applicable restrictions on granting of Liens and security interests in either of such
agreements more restrictive than the terms of such restrictions as in effect on the Closing Date,
(y) the limitations in clause (i) above shall only apply so long as the restrictions referred to in
clause (i) remain in full force and effect and binding upon the Company and its Subsidiaries and
the Indebtedness under the 2002 Indenture has not been repaid and (x) the limitations in clause
(ii) above shall only apply so long as the restrictions in clause (ii) remain in full force and
effect and binding upon the Company and its Subsidiaries and the Indebtedness under the 2006
Indenture has not been repaid.



     Each of the Pledgors and the Administrative Agent, on behalf of the Secured Parties, hereby
acknowledge and agree that the security interest created hereby in the Pledged Collateral
constitutes continuing collateral security for all of the Obligations (subject to Section
2(b) above), whether now existing or hereafter arising.



3









 





     3. Representations and Warranties. The Company, as to itself and each other Pledgor,
and each other Pledgor solely as to itself and its Subsidiaries, hereby represents and warrants to
the Administrative Agent, for the benefit of the Secured Parties, that:



     (a) Ownership. Each Pledgor is the legal and beneficial owner of its Pledged Equity
free and clear of any Lien (other than Permitted Liens) and has the right to pledge, sell, assign
or transfer the same. There exists no adverse claim with respect to the Pledged Equity of such
Pledgor. No Pledgor has authenticated any agreement authorizing any secured party thereunder to
file a financing statement purporting to cover any of the Pledged Collateral, except to perfect
Permitted Liens.



     (b) Security Interest; Priority. This Agreement creates a valid security interest in
the Pledged Collateral of such Pledgor in favor of the Administrative Agent, for the benefit of the
Secured Parties, as collateral security for the Obligations, free and clear of all Liens (other
than Permitted Liens). Upon execution and delivery of this Agreement, the taking of possession by
the Administrative Agent of the certificates representing the Pledged Equity and all other
certificates and instruments constituting Pledged Collateral will perfect and establish the first
priority of the Administrative Agent’s security interest in the Pledged Equity consisting of
certificated securities and, when properly perfected by filing or registration, in all other
Pledged Collateral represented by such Pledged Equity and instruments securing the Obligations.
Except as set forth in this Section 3(b), no action is necessary to perfect or otherwise
protect such security interest.



     (c) Authorization of Pledged Equity. All Pledged Equity is duly authorized and validly
issued, is fully paid and, to the extent applicable, nonassessable and is not subject to the
preemptive rights of any Person.



     (d) No Other Equity Interests. As of the Closing Date, (i) no Pledgor owns any
certificated Equity Interests in any Subsidiary that are required to be pledged and delivered to
the Administrative Agent hereunder except as set forth on Schedule 3(d) hereto and (ii) no
Person other than the Administrative Agent has control or possession of all or any part of the
Pledged Collateral, except as permitted by the Credit Agreement.



     (e) Partnership and Limited Liability Company Interests. No Equity Interest in any
partnership or limited liability company that constitutes Pledged Collateral (i) is dealt in or
traded on a securities exchange or in a securities market, (ii) by its terms expressly provides
that it is a Security governed by Article 8 of the UCC, (iii) is an Investment Company Security,
(iv) is held in a Securities Account or (v) constitutes a Security or a Financial Asset.



     (f) Mergers, Etc. Other than as set forth on Schedule 3(f) hereto, no Pledgor
has been party to a merger, consolidation or other change in structure or used any tradename during
the five years prior to the Closing Date.



     (g) Consents; Etc. There are no restrictions in any Organization Document governing
any Pledged Equity or any other document related thereto which would limit or restrict (i) the
grant of a Lien pursuant to this Agreement on such Pledged Equity, (ii) the perfection of such Lien
or (iii) the exercise of remedies in respect of such perfected Lien in the Pledged Equity as
contemplated by this Agreement. Except for (i) the filing or recording of UCC financing
statements, (ii) obtaining possession or control to perfect the Liens created by this Agreement (to
the extent required under Section 4(a) and (b), (iii) such actions as may be
required by applicable Laws affecting the offering and sale of securities, (iv) such actions as may
be required by applicable foreign Laws affecting the pledge of the Pledged Equity of Foreign
Subsidiaries and (v) consents, authorizations, filings or other actions which have been obtained or
made, no consent or authorization of, filing with, or other act by or in respect of, any arbitrator
or



4









 




Governmental Authority and no consent of any other Person (including, without limitation, any
stockholder, member or creditor of such Pledgor), is required for (A) the grant by such Pledgor of
the security interest in the Pledged Collateral granted hereby or for the execution and delivery of
performance under this Agreement by such Pledgor, (B) the perfection of such security interest (to
the extent such security interest can be perfected by filing under the UCC, the taking of
possession or the granting of control (to the extent required under Section 4(a) and
(b)) or (C) to the knowledge of such Pledgor, the exercise by the Administrative Agent or
any of the Secured Parties of the rights and remedies provided for in this Agreement.




     4. Covenants. Each Pledgor covenants that until such time as the Obligations have
been paid in full (subject to Section 2(b) and other than (i) contingent indemnification
obligations as to which no claim has been asserted and (ii) obligations and liabilities under
Secured Cash Management Agreements and Secured Hedge Agreements either (x) as to which arrangements
satisfactory to the applicable Cash Management Bank or Hedge Bank shall have been made or (y)
notice has not been received by the Administrative Agent from the applicable Cash Management Bank
or Hedge Bank, as the case may be, that amounts are due and payable under such Secured Cash
Management Agreement or Secured Hedge Agreement, as the case may be), the Commitments have expired
or been terminated, and no Letters of Credit remain outstanding (other than Extended Letters of
Credit and any other Letters of Credit the Outstanding Amount of which has been Cash Collateralized
or back-stopped by a letter of credit or other credit support in form and substance reasonably
satisfactory to the Administrative Agent and the applicable L/C Issuer), such Pledgor shall:



     (a) Delivery of Pledged Collateral. Deliver to the Administrative Agent promptly upon
the receipt thereof by or on behalf of a Pledgor, all certificates and instruments constituting
Pledged Equity. Prior to delivery to the Administrative Agent, all such certificates constituting
Pledged Equity shall be held in trust by such Pledgor for the benefit of the Administrative Agent
pursuant hereto. All such certificates representing Pledged Equity shall be delivered in suitable
form for transfer by delivery or shall be accompanied by duly executed instruments of transfer or
assignment in blank, substantially in the form provided in Exhibit 4(a) hereto.



     (b) Uncertificated Securities. Cause the Issuer of any Pledged Collateral that at any
time constitutes uncertificated securities thereof to either (x) to register the Administrative
Agent as the registered owner of such securities or (y) to agree in an authenticated record with
such Pledgor and the Administrative Agent that such Issuer will comply with instructions with
respect to such securities originated by the Administrative Agent without further consent of such
Pledgor, such authenticated record to be substantially in the form of Exhibit 4(b);
provided that, if reasonably requested by the Administrative Agent, such Pledgor shall
cause the Issuer of such Pledged Collateral to cause such Pledged Collateral to become certificated
and in the event such Pledged Collateral becomes certificated, to deliver such Pledged Collateral
to the Administrative Agent in accordance with the provisions of Section 4(a) above.



     (c) Filing of Financing Statements, Notices, Etc. Execute and deliver to the
Administrative Agent such agreements, assignments or instruments (including affidavits, notices,
reaffirmations and amendments and restatements of existing documents) and do all such other things,
in each case, as the Administrative Agent may reasonably deem necessary and may reasonably request
(i) to assure to the Administrative Agent its security interests hereunder, including such
instruments as the Administrative Agent may from time to time reasonably request in order to
perfect and maintain the security interests granted hereunder in accordance with the UCC, (ii) to
consummate the transactions contemplated hereby, and (iii) to otherwise protect and assure the
Administrative Agent of its rights and interests hereunder. Furthermore, each Pledgor also hereby
irrevocably makes, constitutes and appoints the Administrative Agent, its nominee or any other
person whom the Administrative Agent may designate, as such Pledgor’s



5









 




attorney in fact with full power and for the limited purpose to sign in the name of such
Pledgor any financing statements, or amendments and supplements to financing statements, renewal
financing statements, notices or any similar documents which in the Administrative Agent’s
reasonable discretion would be necessary or appropriate in order to perfect and maintain perfection
of the security interests in the Pledged Collateral granted hereunder, such power, being coupled
with an interest, being and remaining irrevocable until such time as the Obligations have been paid
in full (subject to Section 2(b) and other than (i) contingent indemnification obligations
as to which no claim has been asserted and (ii) obligations and liabilities under Secured Cash
Management Agreements and Secured Hedge Agreements either (x) as to which arrangements satisfactory
to the applicable Cash Management Bank or Hedge Bank shall have been made or (y) notice has not
been received by the Administrative Agent from the applicable Cash Management Bank or Hedge Bank,
as the case may be, that amounts are due and payable under such Secured Cash Management Agreement
or Secured Hedge Agreement, as the case may be), the Commitments have expired or been terminated,
and no Letters of Credit remain outstanding (other than Extended Letters of Credit and any other
Letters of Credit the Outstanding Amount of which has been Cash Collateralized or back-stopped by a
letter of credit or other credit support in form and substance reasonably satisfactory to the
Administrative Agent and the applicable L/C Issuer). Each Pledgor hereby agrees that a carbon,
photographic or other reproduction of this Agreement or any such financing statement is sufficient
for filing as a financing statement by the Administrative Agent without notice thereof to such
Pledgor wherever the Administrative Agent may in its sole discretion desire to file the same.
After the Closing Date, upon the reasonable request of the Administrative Agent and at the sole
expense of the Pledgors, each Pledgor will promptly and duly execute and deliver such further
instruments and documents and take such further actions as the Administrative Agent may reasonably
request for the purpose of obtaining or preserving the full benefits of this Agreement and of the
rights and powers herein granted.




     (d) Books and Records. Mark its books and records (and shall cause the Issuer of the
Pledged Equity of such Pledgor to mark its books and records, except in the case of a First-Tier
Foreign Subsidiary to the extent any such recordation would subject the Pledgor or Issuer to any
undue burden or expense, after notice to and agreement by the Administrative Agent) to reflect the
security interest granted pursuant to this Agreement.



     (e) Amendments. Not make or consent to any amendment, termination or other
modification or waiver with respect to any of the Pledged Collateral of such Pledgor or enter into
any agreement or allow to exist any restriction with respect to any of the Pledged Collateral of
such Pledgor other than pursuant hereto or as may be permitted under the Credit Agreement.



     (f) Compliance with Securities Laws. File all reports and other information now or
hereafter required to be filed by such Pledgor with the United States Securities and Exchange
Commission and any other state, federal or foreign agency in connection with the ownership of the
Pledged Collateral of such Pledgor.



     (g) Issuance or Acquisition of Equity Interests. Not, without prior notice to the
Administrative Agent and executing and delivering, or causing to be executed and delivered, to the
Administrative Agent such agreements, documents and instruments as the Administrative Agent may
reasonably require, issue or acquire any Pledged Equity consisting of an interest in a partnership
or a limited liability company that (i) is dealt in or traded on a securities exchange or in a
securities market, (ii) by its terms expressly provides that it is a Security governed by Article 8
of the UCC, (iii) is an Investment Company Security, (iv) is held in a Securities Account or (v)
constitutes a Security or a Financial Asset.



6









 





     5. Authorization to File Financing Statements. Each Pledgor hereby authorizes the
Administrative Agent to prepare and file such financing statements (including continuation
statements) or amendments thereof or supplements thereto or other instruments as the Administrative
Agent may from time to time deem necessary or appropriate in order to perfect and maintain the
security interests granted hereunder in accordance with the UCC.



     6. Advances. Upon the occurrence and during the continuance of an Event of Default,
to the fullest extent permitted by applicable Law, the Administrative Agent may, at its sole option
and in its sole discretion, take such actions as it reasonably deems necessary for the protection
of the security interest in the Pledged Collateral granted hereby, or which may be compelled to
make by operation of Law, and in so doing may expend such sums as the Administrative Agent may
reasonably deem advisable in the performance thereof, including, without limitation, the payment of
any insurance premiums, the payment of any taxes, a payment to obtain a release of a Lien or
potential Lien, expenditures made in defending against any adverse claim and all other expenditures
which the Administrative Agent reasonably may make therefor. All such sums and amounts so expended
shall be repayable by the Pledgors on a joint and several basis promptly upon timely notice thereof
and demand therefor, shall constitute additional Obligations and shall bear interest from the date
said amounts are expended at the Default Rate. No performance of any covenant or agreement by the
Administrative Agent on behalf of any Pledgor, and no such advance or expenditure therefor, shall
relieve the Pledgors of any Default or Event of Default. Upon the occurrence and during the
continuance of an Event of Default, the Administrative Agent may make any payment hereby authorized
in accordance with any bill, statement or estimate procured from the appropriate public office or
holder of the claim to be discharged without inquiry into the accuracy of such bill, statement or
estimate or into the validity of any tax assessment, sale, forfeiture, tax lien, title or claim
except to the extent the Administrative Agent has knowledge that such payment is being contested in
good faith by a Pledgor in appropriate proceedings and against which adequate reserves are being
maintained in accordance with GAAP.



     7. Remedies.



     (a) General Remedies




     (i) Upon the occurrence and during the continuance of an Event of Default, and to the
extent not prohibited by applicable Law, the Administrative Agent shall have, in addition to
the rights and remedies provided herein, in the Loan Documents, in any other documents
relating to the Obligations, or by applicable Law (including, but not limited to, levy of
attachment, garnishment and the rights and remedies set forth in the UCC of the jurisdiction
applicable to the affected Pledged Collateral), the rights and remedies of a secured party
under the UCC (regardless of whether the UCC is the law of the jurisdiction where the rights
and remedies are asserted and regardless of whether the UCC applies to the affected Pledged
Collateral), and further, the Administrative Agent may, with or without judicial process or
the aid and assistance of others, and without demand advertisement, notice, hearing or
process of law, all of which each of the Pledgor hereby waives to the fullest extent
permitted by Law, at any place and time or times, sell and deliver any or all Pledged
Collateral held by or for it at public or private sale (which in the case of a private sale,
shall be to a restricted group of purchasers who will be obligated to agree, among other
things, to acquire such securities for their own account, for investment and not with a view
to the distribution or resale thereof), at any exchange or broker’s board or elsewhere, by
one or more contracts, in one or more parcels, for money, upon credit or otherwise, at such
prices and upon such terms as the Administrative Agent deems advisable, in its sole
discretion (subject to any and all mandatory legal requirements). Each Pledgor acknowledges
that any such private sale may be at prices and on terms less favorable to the seller than
the prices and other terms which might have been obtained at a public sale. Neither the



7









 






Administrative Agent’s compliance with applicable Law nor its disclaimer of warranties
relating to the Pledged Collateral shall be considered to adversely affect the commercial
reasonableness of any sale. To the extent the rights of notice cannot be legally waived
hereunder, each Pledgor agrees that any requirement of reasonable notice shall be met if
such notice, specifying the place of any public sale or the time after which any private
sale is to be made, is personally served on or mailed, postage prepaid, to the Company in
accordance with the notice provisions of Section 11.02 of the Credit Agreement at least ten
(10) days before the time of sale or other event giving rise to the requirement of such
notice. The Administrative Agent may adjourn any public or private sale from time to time
by announcement at the time and place fixed therefor, and such sale may, without further
notice, be made at the time and place to which it was so adjourned. The Administrative
Agent shall not be obligated to make any sale or other disposition of the Pledged Collateral
regardless of notice having been given. To the extent not prohibited by applicable Law, any
Secured Party may be a purchaser at any such sale. To the extent not prohibited by
applicable Law, each of the Pledgors hereby waives all of its rights of redemption with
respect to any such sale. Subject to the provisions of applicable Law, the Administrative
Agent may postpone or cause the postponement of the sale of all or any portion of the
Pledged Collateral by announcement at the time and place of such sale, and such sale may,
without further notice, to the extent permitted by Law, be made at the time and place to
which the sale was postponed, or the Administrative Agent may further postpone such sale by
announcement made at such time and place.




     (ii) Each Pledgor (A) hereby authorizes and instructs, without any other or further
instructions from such Pledgor, each Issuer of any Pledged Equity to comply with all written
instructions received by it from the Administrative Agent stating that an Event of Default
has occurred and is continuing to the extent such instructions are otherwise in accordance
with the terms of this Agreement and (B) agrees that such Issuer shall be fully protected in
so complying during the period from such Issuer’s receipt of such notice to such Issuer’s
subsequent receipt of notice that such Event of Default is no longer continuing.




     (iii) So long as no Event of Default shall exist, each Pledgor may (A) exercise any and
all voting and other consensual rights pertaining to the Pledged Equity of such Pledgor or
any part thereof for any purpose not inconsistent with the terms of the Loan Documents and
(B) receive and retain any and all dividends, principal or interest paid in respect of the
Pledged Equity to the extent such amounts paid are permitted under the Credit Agreement;
provided, however, that any and all dividends, interest and other distributions paid or
payable other than in cash, and instruments and other property received, receivable or
otherwise distributed, in respect of or in exchange for any Pledged Equity shall be (x)
Pledged Equity, (y) promptly delivered (with any necessary endorsement) to the
Administrative Agent as Pledged Collateral, and (z) if received by such Pledgor, deemed
received in trust for the benefit of the Administrative Agent and be forthwith delivered to
the Administrative Agent within a reasonable period as Pledged Equity in the same form as so
received (with any necessary endorsement).




     (iv) Upon the occurrence and during the continuance of an Event of Default:




     (A) All rights of a Pledgor to exercise the voting and other consensual rights
which such Pledgor would otherwise be entitled to exercise pursuant to clause
(iii)(A) above shall cease and all such rights shall thereupon become vested in the
Administrative Agent which shall then have the sole right to exercise such voting
and other consensual rights.



8









 






     (B) All rights of a Pledgor to receive the dividends, principal and interest
payments which it would otherwise be authorized to receive and retain pursuant to
clause (iii)(B) above shall cease and all such rights shall thereupon be vested in
the Administrative Agent which shall then have the sole right to receive and hold as
Pledged Collateral such dividends, principal and interest payments.




     (C) All dividends, principal and interest payments which are received by a
Pledgor contrary to the provisions of clause (iii)(B) above shall be (1) received in
trust for the benefit of the Administrative Agent, (2) segregated from other
property or funds of such Pledgor and (3) forthwith paid over to the Administrative
Agent as Pledged Collateral in the exact form received, to be held by the
Administrative Agent as Pledged Collateral and as further collateral security for
the Obligations.




     (D) The Administrative Agent shall have the right (but not the obligation) to
be substituted for a Pledgor as a shareholder, member, manager or partner, as
applicable, under the applicable limited liability agreement, operating agreement,
membership agreement, partnership agreement or other similar agreement with respect
to such Pledgor, and the Administrative Agent shall have all rights, powers and
benefits of such Pledgor as a shareholder, member, manager or partner, as
applicable, under such applicable agreement with respect to such Pledgor. For
avoidance of doubt, such rights, powers and benefits of a substituted holder shall
include all voting and other rights and not merely the rights of an economic
interest holder.



     (b) Restricted Securities Collateral.




     (i) Each Pledgor acknowledges and agrees that any offer to sell any Pledged Equity
which has been (A) publicly advertised on a bona fide basis in a newspaper or other
publication of general circulation in the financial community of New York, New York (to the
extent that such offer may be advertised without prior registration under the Securities
Act), or (B) made privately in the manner described above shall be deemed to involve a
“public sale” under the UCC, notwithstanding that such sale may not constitute a “public
offering” under the Securities Act, and the Administrative Agent may, in such event, bid for
the purchase of such securities.




     (ii) Notwithstanding the foregoing, each Pledgor acknowledges and agrees that the
Administrative Agent may be unable to effect a public sale of any or all certain of the
Pledged Collateral unless and until such Pledged Collateral has been registered under the
provisions of the Securities Act (any such Pledged Collateral, the “Restricted
Securities Collateral”), by reason of certain prohibitions contained in the Securities
Act and applicable state securities Laws or otherwise, and may be compelled to resort to one
or more private sales thereof to a restricted group of purchasers which will be obliged to
agree, among other things, to acquire such securities for their own account for investment
and not with a view to the distribution or resale thereof. Each Pledgor acknowledges and
agrees that any such private sale may result in prices and other terms less favorable than
if such sale were a public sale and, notwithstanding such circumstances, agrees that any
such private sale shall be deemed to have been made in a commercially reasonable manner. To
the extent not prohibited by applicable Law, the Administrative Agent shall be under no
obligation to delay a sale of any of the Restricted Securities Collateral for the period of
time necessary to permit the Issuer thereof to register such securities for public sale
under the Securities Act, or under applicable state securities laws, even if such Issuer
would agree to do so.



9









 






     (iii) Each Pledgor agrees to use its commercially reasonable efforts to do or cause to
be done all such other acts as may be reasonably necessary to make such sale or sales of all
or any portion of the Restricted Securities Collateral valid and binding and in compliance
with any and all other applicable Laws.



     (c) Nonexclusive Nature of Remedies. Failure by the Administrative Agent or any
Secured Party to exercise any right, remedy or option under this Agreement, any other Loan
Document, any other document relating to the Obligations, or as provided by Law, or any delay by
the Administrative Agent or any Secured Party in exercising the same, shall not operate as a waiver
of any such right, remedy or option. No waiver hereunder shall be effective unless it is in
writing, signed by the party against whom such waiver is sought to be enforced and then only to the
extent specifically stated, which in the case of the Administrative Agent or the Secured Parties
shall only be granted as provided herein. To the extent permitted by applicable Law, neither the
Administrative Agent, the Secured Parties, nor any party acting as attorney for the Administrative
Agent or the Secured Parties, shall be liable hereunder for any acts or omissions or for any error
of judgment or mistake of fact or law other than their gross negligence or willful misconduct
hereunder. The rights and remedies of the Administrative Agent and the Secured Parties under this
Agreement shall be cumulative and not exclusive of any other right or remedy which the
Administrative Agent or the Secured Parties may have.



     (d) Retention of Pledged Collateral. In addition to the rights and remedies
hereunder, the Administrative Agent may, in compliance with Sections 9-620 and 9-621 of the UCC or
otherwise complying with the requirements of applicable Law of the relevant jurisdiction, accept or
retain the Pledged Collateral in satisfaction of the Obligations (subject to Section 2(b)).
Unless and until the Administrative Agent shall have provided such notices, however, the
Administrative Agent shall not be deemed to have retained any Pledged Collateral in satisfaction of
any Obligations for any reason.



     (e) Deficiency. In the event that the proceeds of any sale, collection or realization
are insufficient to pay all amounts to which the Administrative Agent or the Secured Parties are
legally entitled, the Pledgors shall be jointly and severally liable for the deficiency, together
with interest thereon at the Default Rate, together with the costs of collection and the fees,
charges and disbursements of counsel as provided in the Loan Documents. Any surplus remaining
after the full payment and satisfaction of the Obligations (subject to Section 2(b)) shall
be returned to the Pledgors or to whomsoever a court of competent jurisdiction shall determine to
be entitled thereto.



     8. The Administrative Agent.



     (a) Power of Attorney. In addition to other powers of attorney contained herein, each
Pledgor hereby designates and appoints the Administrative Agent, on behalf of the Secured Parties,
and each of its designees or agents, as attorney-in-fact of such Pledgor, irrevocably and with
power of substitution, with authority to take any or all of the following actions upon the
occurrence and during the continuance of an Event of Default:




     (i) to demand, collect, settle, compromise, adjust, give discharges and releases, all
as the Administrative Agent may reasonably determine;




     (ii) to commence and prosecute any actions at any court for the purposes of collecting
any Pledged Collateral and enforcing any other right in respect thereof;




     (iii) to defend, settle or compromise any action brought and, in connection therewith,
give such discharge or release as the Administrative Agent may deem reasonably appropriate;



10









 






     (iv) to execute and deliver all assignments, conveyances, statements, financing
statements, renewal financing statements, security agreements, affidavits, notices and other
agreements, instruments and documents that the Administrative Agent may reasonably determine
necessary in order to perfect and maintain the security interests and liens granted in this
Agreement and in order to fully consummate all of the transactions contemplated therein;




     (v) to sell, assign, transfer, make any agreement in respect of, or otherwise deal with
or exercise rights in respect of, any Pledged Collateral, as fully and completely as though
the Administrative Agent were the absolute owner thereof for all purposes;




     (vi) to receive, open and dispose of mail addressed to a Pledgor and sign and endorse
any drafts, assignments, proxies, stock powers, verifications, notices and other documents
relating to the Pledged Collateral;




     (vii) to the fullest extent permitted by applicable Law, to institute any foreclosure
proceedings that the Administrative Agent may reasonably deem appropriate;




     (viii) to exchange any of the Pledged Equity or other property upon any merger,
consolidation, reorganization, recapitalization or other readjustment of the Issuer thereof
and, in connection therewith, deposit any of the Pledged Equity with any committee,
depository, transfer agent, registrar or other designated agency upon such terms as the
Administrative Agent may reasonably deem appropriate;




     (ix) to vote for a shareholder resolution, or to sign an instrument in writing,
sanctioning the transfer of any or all of the Pledged Equity into the name of the
Administrative Agent or one or more of the Secured Parties or into the name of any
transferee to whom the Pledged Equity or any part thereof may be sold pursuant to
Section 7;




     (x) to pay or discharge taxes, liens, security interests or other encumbrances levied
or placed on or threatened against the Pledged Collateral;




     (xi) to direct any parties liable for any payment in connection with any of the Pledged
Collateral to make payment of any and all monies due and to become due thereunder directly
to the Administrative Agent or as the Administrative Agent shall direct;




     (xii) to receive payment of and receipt for any and all monies, claims, and other
amounts due and to become due at any time in respect of or arising out of any Pledged
Collateral; and




     (xiii) do and perform all such other acts and things as the Administrative Agent may
reasonably deem to be necessary, proper or convenient in connection with the Pledged
Collateral.


This power of attorney is a power coupled with an interest and shall be irrevocable until such time
as the Obligations have been paid in full (subject to Section 2(b) and other than (i)
contingent indemnification obligations as to which no claim has been asserted and (ii) obligations
and liabilities under Secured Cash Management Agreements and Secured Hedge Agreements either (x) as
to which arrangements satisfactory to the applicable Cash Management Bank or Hedge Bank shall have
been made or (y) notice has not been received by the Administrative Agent from the applicable Cash
Management Bank or Hedge Bank, as the case may be, that amounts are due and payable under such
Secured Cash Management Agreement or Secured Hedge Agreement, as the case may be), the Commitments
have expired or been terminated, and no Letters of Credit remain outstanding (other than Extended
Letters of Credit and any other






11









 







Letters of Credit the Outstanding Amount of which has been Cash Collateralized or back stopped by a
letter of credit or other credit support in form and substance reasonably satisfactory to the
Administrative Agent and the applicable L/C Issuer). The Administrative Agent shall be under no
duty to exercise or withhold the exercise of any of the rights, powers, privileges and options
expressly or implicitly granted to the Administrative Agent in this Agreement, and shall not be
liable for any failure to do so or any delay in doing so. The Administrative Agent shall not be
liable for any act or omission or for any error of judgment or any mistake of fact or law in its
individual capacity or its capacity as attorney-in-fact except acts or omissions resulting from its
gross negligence or willful misconduct. This power of attorney is conferred on the Administrative
Agent solely to protect, preserve and realize upon its security interest in the Pledged Collateral
on behalf of the Secured Parties.




     (b) Assignment by the Administrative Agent. The Administrative Agent may from time to
time assign the Obligations or any portion thereof to a successor Administrative Agent appointed in
accordance with the Credit Agreement, and such successor shall be entitled to all of the rights and
remedies of the Administrative Agent under this Agreement in relation thereto.



     (c) The Administrative Agent’s Duty of Care. The sole duty of Administrative Agent
with respect to the custody, safekeeping and physical preservation of the Pledged Collateral in its
possession, under Section 9-207 of the UCC or otherwise, shall be to deal with it in the same
manner as the Administrative Agent deals with similar property for its own account. Neither the
Administrative Agent, any other Secured Party nor any of their respective officers, directors,
employees or agents shall be liable for failure to demand, collect or realize upon any of the
Pledged Collateral or for any delay in doing so or shall be under any obligation to sell or
otherwise dispose of any Pledged Collateral upon the request of any Pledgor or any other Person or
to take any other action whatsoever with regard to the Pledged Collateral or any part thereof. The
powers conferred on the Administrative Agent and the other Secured Parties hereunder are solely to
protect the interests of the Administrative Agent and the other Secured Parties in the Pledged
Collateral and shall not impose any duty upon the Administrative Agent or any other Secured Party
to exercise any such powers. The Administrative Agent and the other Secured Parties shall be
accountable only for amounts that they actually receive as a result of the exercise of such powers,
and neither they nor any of their officers, directors, employees or agents shall be responsible to
any Pledgor for any act or failure to act hereunder, except for their own gross negligence or
willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable
judgment with respect thereto. In the event of a public or private sale of Pledged Collateral
pursuant to Section 7, the Administrative Agent shall have no responsibility for (i)
ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or
other matters relating to any Pledged Collateral, whether or not the Administrative Agent has or is
deemed to have knowledge of such matters.



     9. Pledgors Remain Liable. Anything herein to the contrary notwithstanding, (a) each
Pledgor shall remain liable to perform all of its duties and obligations under the contracts and
agreements included in the Collateral to the same extent as if this Agreement had not been
executed, (b) the exercise by the Administrative Agent or any other Secured Party of any of the
rights hereunder shall not release any Pledgor from any of its duties or obligations under the
contracts and agreements included in the Collateral, (c) neither the Administrative Agent nor any
other Secured Party shall have any obligation or liability under the contracts and agreements
included in the Collateral by reason of this Agreement, nor shall the Administrative Agent nor any
other Secured Party be obligated to perform any of the obligations or duties of any Pledgor
thereunder or to take any action to collect or enforce any claim for payment assigned hereunder,
and (d) neither the Administrative Agent nor any other Secured Party shall have any liability in
contract or tort for any Pledgor’s acts or omissions.



     10. Releases of Pledged Collateral.



12









 





     (i) If (x) any Pledged Collateral shall be sold or is to be sold as part of or in connection
with any Disposition permitted under the Credit Agreement or under any other Loan Document or (y)
the release of any Pledged Collateral shall approved, authorized or ratified in writing in
accordance with Section 11.01 of the Credit Agreement, then the Administrative Agent, at the
request and sole expense of such Pledgor, shall release the Liens created hereby or by any other
Security Instrument on such Pledged Collateral in accordance with Section 9.10 of the Credit
Agreement.



     (ii) After the occurrence and during the continuance of Collateral Release Event and in
accordance with Section 11.20(a) of the Credit Agreement, the Administrative Agent, at the expense
of the Company, shall promptly execute and deliver to the Company all releases and other documents,
and take such other action, reasonably necessary for the release of the Liens created hereby or by
any other Security Instrument on the applicable Pledged Collateral.



     (iii) The Administrative Agent may release any of the Pledged Collateral from this Agreement
in accordance with Section 9.10 of the Credit Agreement or may substitute any of the Pledged
Collateral for other Pledged Collateral without altering, varying or diminishing in any way the
force, effect, lien, pledge or security interest of this Agreement as to any Pledged Collateral not
expressly released or substituted, and this Agreement shall continue as a first priority lien on
all Pledged Collateral not expressly released or substituted.



     11. Reinstatement of Pledged Collateral Notwithstanding Section 10(ii) above,
if a Collateral Reinstatement Event shall have occurred and in accordance with Section 11.20(b) of
the Credit Agreement, all Pledged Collateral and Security Instruments (including this Agreement)
shall, at the Company’s sole cost and expense, be reinstated and all actions reasonably necessary,
or reasonably requested by the Administrative Agent, to provide to the Administrative Agent for the
benefit of the Secured Parties valid, perfected, first priority security interests (subject to
Liens permitted under Section 7.01 of the Credit Agreement) in the Pledged Collateral shall be
taken within 30 days of such event, which 30 day period may be extended by the Administrative Agent
in its sole discretion.



     12. Application of Proceeds. Upon the acceleration of the Obligations pursuant to
Section 8.02 of the Credit Agreement, any payments in respect of the Obligations and any proceeds
of the Pledged Collateral, when received by the Administrative Agent or any Secured Party in money,
will be applied in the manner and in the order set forth in Section 8.03 of the Credit Agreement.



     13. Continuing Agreement.



     (a) This Agreement shall remain in full force and effect until the payment in full of all
Obligations (subject to Section 2(b) and other than (i) contingent indemnification
obligations as to which no claim has been asserted and (ii) obligations and liabilities under
Secured Cash Management Agreements and Secured Hedge Agreements either (x) as to which arrangements
satisfactory to the applicable Cash Management Bank or Hedge Bank shall have been made or (y)
notice has not been received by the Administrative Agent from the applicable Cash Management Bank
or Hedge Bank, as the case may be, that amounts are due and payable under such Secured Cash
Management Agreement or Secured Hedge Agreement, as the case may be), the Commitments have expired
or been terminated, and no Letters of Credit remain outstanding (other than Extended Letters of
Credit and any other Letters of Credit the Outstanding Amount of which has been Cash Collateralized
or back stopped by a letter of credit or other credit support in form and substance reasonably
satisfactory to the Administrative Agent and the applicable L/C Issuer), at which time this
Agreement shall be automatically terminated and the Administrative Agent shall, upon the request
and at the expense of the Pledgors, forthwith release all of its liens and security interests
hereunder and shall execute and deliver, or authorize the Pledgors to



13









 




prepare and file, all UCC termination statements and/or other documents reasonably requested
by the Pledgors evidencing such termination.




     (b) This Agreement shall continue to be effective or be automatically reinstated, as the case
may be, if at any time payment, in whole or in part, of any of the Obligations is rescinded or must
otherwise be restored or returned by the Administrative Agent or any Secured Party as a preference,
fraudulent conveyance or otherwise under any Debtor Relief Law, all as though such payment had not
been made; provided that in the event payment of all or any part of the Obligations is
rescinded or must be restored or returned, all reasonable costs and expenses (including without
limitation any reasonable legal fees and disbursements) incurred by the Administrative Agent or any
Secured Party in defending and enforcing such reinstatement shall be deemed to be included as a
part of the Obligations.



     14. Amendments; Waivers; Consents. None of the terms or provisions of this Agreement
may be waived, amended, supplemented or otherwise modified, nor any consent be given, except in
accordance with Section 11.01 of the Credit Agreement; provided that any update or revision
to any schedules hereto delivered by any Pledgor shall not constitute an amendment for purposes of
this Section or Section 11.01 of the Credit Agreement.



     15. Notices. All notices and communications hereunder shall be given to the addresses
and otherwise made in accordance with Section 11.02 of the Credit Agreement; provided that
notices and communications to any Pledgor other than the Company shall be directed to such Pledgor,
at the address of the Company set forth in Section 11.02 of the Credit Agreement.



     16. Expenses; Indemnification and Survival. The Pledgors shall, jointly and
severally, (a) pay all reasonable out-of-pocket expenses actually incurred by the Administrative
Agent and each other Secured Party and (b) indemnify each Indemnitee (which for purposes of this
Agreement shall include, without limitation, all Secured Parties), in each case, to the extent any
Borrower would be required to do so pursuant to Section 11.04 of the Credit Agreement. The
obligations of the Pledgors under this paragraph shall survive the payment in full of the
Obligations and termination of this Agreement in accordance with its terms.



     17. Right of Setoff; Governing Law; Submission to Jurisdiction; Venue; WAIVER OF JURY
TRIAL; Judgment Currency. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK. Without limiting the general applicability of the
foregoing and the terms of the other Loan Documents to this Agreement and the parties hereto, the
terms of Sections 11.08, 11.14, 11.15 and 11.19 of the Credit Agreement are incorporated herein by
reference, mutatis mutandis, with each reference to the “Borrower” (whether express or by reference
to the Borrower as a “party” thereto) therein being a reference to the Pledgors, and the parties
hereto agree to such terms.



     18. Counterparts; Electronic Execution. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other
electronic imaging means shall be effective as delivery of a manually executed counterpart of this
Agreement.



     19. Additional Pledgors. At any time after the date of this Agreement, one or more
additional Persons may become a party hereto by executing and delivering to the Administrative
Agent a joinder agreement in form and substance reasonably satisfactory to the Administrative
Agent, pursuant to Section 6.14 of the Credit Agreement. Immediately upon such execution and
delivery of such joinder agreement and without any further action, each such additional Person will
become a party to this



14









 




Agreement as a “Pledgor” and have all of the rights and obligations of a Pledgor hereunder and
this Agreement shall be deemed amended by such joinder agreement.




     20. Severability. If any provision of this Agreement is held to be illegal, invalid
or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this
Agreement shall not be affected or impaired thereby and (b) the parties shall endeavor in good
faith negotiations to replace the illegal, invalid or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of the illegal, invalid
or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.



     21. Titles and Captions. Titles and captions of Articles, Sections and subsections in
this Agreement are provided for convenience only, and neither limit nor amplify the provisions of
this Agreement.



     22. Rights of Required Lenders. All rights of the Administrative Agent hereunder, if
not exercised by the Administrative Agent, may be exercised by the Required Lenders.



     23. USA PATRIOT Act. Each Secured Party that is subject to the USA PATRIOT Act (Title
III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”) and the
Administrative Agent (for itself and not on behalf of any Secured Party) hereby notifies the
Pledgors that pursuant to the requirements of the Act, it is required to obtain, verify and record
information that identifies each Pledgor, which information includes the name and address of each
Pledgor and other information that will allow such Secured Party or the Administrative Agent, as
applicable, to identify each Pledgor in accordance with the Act. Each Pledgor shall, promptly
following a request by the Administrative Agent or any Secured Party, provide all documentation and
other information that the Administrative Agent or such Secured Party requests in order to comply
with its ongoing obligations under applicable “know your customer” and anti-money laundering rules
and regulations, including the Act.



     24. Successors and Assigns. The provisions of this Agreement shall be binding upon
each Pledgor, its successors and assigns and shall inure, together with the rights and remedies of
the Administrative Agent and the Secured Parties hereunder, to the benefit of the Administrative
Agent and the Secured Parties and their respective successors and permitted assigns; except that no
Pledgor may assign or otherwise transfer any of its rights or obligations under this Agreement
without the prior written consent of the Administrative Agent and the other Secured Parties (in
accordance with the Credit Agreement).



     25. Conflict with Foreign Pledge Agreements. Notwithstanding anything herein to the
contrary, in the event of any conflict between the terms of this Agreement and a Foreign Pledge
with respect to the Pledged Equity pledged under such Foreign Pledge, the terms of the Foreign
Pledge shall govern.



     26. ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.



[Signature Pages Follow]









15









 








     Each of the parties hereto has caused a counterpart of this Agreement to be duly executed and
delivered as of the date first above written.



	 	 	 	 	 
	PLEDGORS: 	 MOHAWK INDUSTRIES, INC.,

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOHAWK CARPET, LLC,

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOHAWK INTERNATIONAL HOLDINGS (DE) CORP.,

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	UNILIN FLOORING NC, LLC,

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DAL-TILE INTERNATIONAL, INC.,

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DAL-TILE GROUP, INC.,

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Mohawk Industries, Inc.

Pledge Agreement

Signature Page






 









 








	 	 	 	 	 
	 	DAL-TILE CORPORATION,

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DAL-TILE DISTRIBUTION, INC.,

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DAL-TILE SERVICES, INC.,

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DAL-TILE I, LLC,

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DAL-TILE SHARED SERVICES, INC.,

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DAL-ELIT, LLC,

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Mohawk Industries, Inc.

Pledge Agreement

Signature Page









 









 








	 	 	 	 	 
	 	MOHAWK ESV, INC.,

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOHAWK COMMERCIAL, INC.,

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ALADDIN MANUFACTURING CORPORATION,

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	WAYN-TEX LLC,

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOHAWK CARPET DISTRIBUTION, INC.,

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOHAWK CARPET TRANSPORTATION OF

GEORGIA, LLC,

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Mohawk Industries, Inc.

Pledge Agreement

Signature Page









 









 








	 	 	 	 	 
	 	MOHAWK RESOURCES, LLC,

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOHAWK SERVICING, LLC,

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOHAWK FACTORING, INC.,

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Mohawk Industries, Inc.

Pledge Agreement

Signature Pages






 









 








	 	 	 	 	 
	 	Acknowledged and accepted:





BANK OF AMERICA, N.A.,

as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Mohawk Industries, Inc.

Pledge Agreement

Signature Page








 









 








SCHEDULE 1(b)




EQUITY INTERESTS



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Percentage of
	 	 	Subsidiary	 	Total Number	 	Number of Shares	 	 	 	 	 	Percentage
	 	 	owned by	 	of Shares	 	Owned by	 	Percentage	 	Ownership
	Pledgor	 	Pledgor	 	Outstanding	 	Pledgor	 	Ownership	 	Being Pledged
	Mohawk Industries,
Inc.

	 	Mohawk Carpet, LLC
	 	 	N/A	 	 	 	N/A	 	 	 	100	%	 	 	100	%
	 
	Mohawk Industries,
Inc.

	 	Mohawk

International

Holdings (DE)

Corporation
	 	 	100	 	 	 	100	 	 	 	100	%	 	 	100	%
	 
	Mohawk Industries,
Inc.

	 	Unilin Flooring NC,

LLC
	 	 	N/A	 	 	 	N/A	 	 	 	100	%	 	 	100	%
	 
	Mohawk Industries,
Inc.

	 	Dal-Tile
International Inc.
	 	 	1,000	 	 	 	1,000	 	 	 	100	%	 	 	100	%
	 
	Mohawk Carpet, LLC

	 	Mohawk Servicing,

LLC
	 	 	N/A	 	 	 	N/A	 	 	 	100	%	 	 	100	%
	 
	Mohawk Carpet, LLC

	 	Mohawk Canada

Corporation
	 	 	10	 	 	 	10	 	 	 	100	%	 	 	65	%
	 
	Mohawk Carpet, LLC

	 	Mohawk Resources,

LLC
	 	 	N/A	 	 	 	N/A	 	 	 	100	%	 	 	100	%
	 
	Mohawk Carpet, LLC

	 	Aladdin

Manufacturing

Corporation
	 	 	100	 	 	 	100	 	 	 	100	%	 	 	100	%
	 
	Mohawk Carpet, LLC

	 	Lees Mohawk (UK)

Limited
	 	 	878,489	 	 	 	878,489	 	 	 	100	%	 	 	65	%
	 
	Mohawk Carpet, LLC

	 	Mohawk Commercial,
Inc.
	 	 	1,000	 	 	 	1,000	 	 	 	100	%	 	 	100	%
	 
	Mohawk Carpet, LLC

	 	Mohawk ESV, Inc.
	 	 	100	 	 	 	100	 	 	 	100	%	 	 	100	%
	 
	Mohawk Carpet, LLC

	 	World
International, Inc.
	 	 	261	 	 	 	261	 	 	 	100	%	 	 	65	%
	 
	Mohawk Carpet, LLC

	 	Mohawk Factoring,
Inc.
	 	 	1,000	 	 	 	1,000	 	 	 	79.3	%	 	 	100	%
	 
	Mohawk 

International 

Holdings (DE) 

Corporation

	 	Syarikat Malaysia
Wood Industries
SDN. BHD.
	 	 	400,000	 	 	 	400,000	 	 	 	100	%	 	 	65	%
	 
	Mohawk 

International 

Holdings (DE) 

Corporation

	 	Mohawk Global
Investments
S.à r.l.
	 	 	N/A	 	 	 	N/A	 	 	 	100	%	 	 	65	%






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Percentage of
	 	 	Subsidiary	 	Total Number	 	Number of Shares	 	 	 	 	 	Percentage
	 	 	owned by	 	of Shares	 	Owned by	 	Percentage	 	Ownership
	Pledgor	 	Pledgor	 	Outstanding	 	Pledgor	 	Ownership	 	Being Pledged
	Dal-Tile
International Inc.

	 	Dal-Tile Group Inc.
	 	 	1,000	 	 	 	1,000	 	 	 	100	%	 	 	100	%
	 
	Dal-Tile Group Inc.

	 	Dal-Tile Corporation
	 	 	1,000	 	 	 	1,000	 	 	 	100	%	 	 	100	%
	 
	Dal-Tile Corporation

	 	Dal-Tile
Distribution, Inc.
	 	 	100	 	 	 	100	 	 	 	100	%	 	 	100	%
	 
	Dal-Tile Corporation

	 	Dal-Tile Services,
Inc.
	 	 	100	 	 	 	100	 	 	 	100	%	 	 	100	%
	 
	Dal-Tile Corporation

	 	Dal-Tile Puerto
Rico, Inc.
	 	N/A1
	 	N/A2
	 	 	100	%	 	 	65	%
	 
	Dal-Tile
Distribution, Inc.

	 	Dal-Tile Shared
Services, Inc.
	 	 	100	 	 	 	100	 	 	 	100	%	 	 	100	%
	 
	Dal-Tile
Distribution, Inc.

	 	Dal-Tile I, L.L.C.
	 	 	N/A	 	 	 	N/A	 	 	 	100	%	 	 	100	%
	 
	Dal-Tile Shared
Services, Inc.

	 	Dal-Elit, LLC
	 	 	N/A	 	 	 	N/A	 	 	 	100	%	 	 	100	%
	 
	Dal-Tile I, L.L.C.

	 	Dal-Italia LLC
	 	 	N/A	 	 	 	N/A	 	 	 	83.5	%	 	 	100	%
	 
	Aladdin
Manufacturing
Corporation

	 	Horizon Europe, Inc.
	 	 	500	 	 	 	500	 	 	 	100	%	 	 	100	%
	 
	Aladdin
Manufacturing
Corporation

	 	Mohawk Carpet
Distribution, Inc.
	 	 	100	 	 	 	100	 	 	 	100	%	 	 	100	%
	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Aladdin Manufacturing
Corporation

	 	Wayn-Tex LLC
	 	 	N/A	 	 	 	N/A	 	 	 	100	%	 	 	100	%
	 
	Mohawk Carpet
Distribution, Inc.

	 	Mohawk Carpet
Transportation of
Georgia, LLC
	 	 	N/A	 	 	 	N/A	 	 	 	100	%	 	 	100	%








 




			
	1	 	To be addressed post-closing.
	 
	2	 	To be addressed post-closing.




 









 










SCHEDULE 3(d)




PLEDGED EQUITY



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Number	 	 
	 	 	 	 	of Shares	 	 
	Pledgor	 	Issuer	 	Pledged	 	Certificate Number
	Mohawk Industries, Inc.

	 	Mohawk International

Holdings (DE)

Corporation
	 	 	100	 	 	 	1	 
	 
	Dal-Tile International
Inc.

	 	Dal-Tile Group Inc.
	 	 	1,000	 	 	 	3	 
	 
	Dal-Tile Group Inc.

	 	Dal-Tile Corporation
	 	 	1,000	 	 	 	2	 
	 
	Mohawk Carpet, LLC

	 	Aladdin Manufacturing

Corporation
	 	 	100	 	 	 	2	 
	 
	Aladdin Manufacturing 

Corporation

	 	Mohawk Carpet
Distribution, Inc.
	 	 	100	 	 	 	1	 
	 
	Mohawk Carpet, LLC

	 	Mohawk Factoring, Inc.
	 	 	1,000	 	 	 	1	 
	 
	Aladdin Manufacturing 

Corporation

	 	Horizon Europe, Inc.
	 	 	500	 	 	 	1	 
	 
	Mohawk Carpet, LLC

	 	Mohawk Commercial, Inc.
	 	 	1,000	 	 	 	1	 
	 
	Mohawk Carpet, LLC

	 	Mohawk ESV, Inc.
	 	 	100	 	 	 	1	 
	 
	Mohawk Industries, Inc.

	 	Dal-Tile International
Inc.
	 	 	1,000	 	 	 	1	 
	 
	Dal-Tile Corporation

	 	Dal-Tile Distribution,
Inc.
	 	 	100	 	 	 	1	 
	 
	Dal-Tile Corporation

	 	Dal-Tile Services, Inc.
	 	 	100	 	 	 	1	 
	 
	Dal-Tile Distribution,
Inc.

	 	Dal-Tile Shared
Services, Inc.
	 	 	100	 	 	 	1	 
	 
	Dal-Tile Corporation

	 	Dal-Tile Puerto Rico,
Inc.
	 	 	N/A	 	 	N/A3

	 
	Mohawk Carpet, LLC

	 	Mohawk Canada Corporation
	 	 	N/A	 	 	N/A4

	 
	Mohawk Carpet, LLC

	 	Lees Mohawk (UK) Limited
	 	 	N/A	 	 	N/A5

	 
	Mohawk Carpet, LLC

	 	World International, Inc.
	 	 	N/A	 	 	N/A6

	 
	Mohawk
International

Holdings
(DE)

Corporation

	 	Syarikat Malaysia Wood
Industries SDN. BHD.
	 	 	N/A	 	 	N/A7









 




			
	3	 	Note: To be issued and delivered
post-closing.
	 
	4	 	Note: To be reissued and delivered
post-closing.
	 
	5	 	Note: To be reissued and delivered
post-closing.
	 
	6	 	Note: To be reissued and delivered
post-closing.
	 
	7	 	Note: To be reissued and delivered
post-closing.




 









 











SCHEDULE 3(f)




MERGERS, CONSOLIDATIONS, CHANGE

IN STRUCTURE OR USE OF TRADENAMES



	 	 	 	 	 
	PLEDGOR	 	DATE OF CHANGE	 	PRIOR NAME
	MOHAWK CARPET DISTRIBUTION, INC.

	 	12/31/08
	 	Mohawk Mills, Inc.
	 
	DAL-TILE DISTRIBUTION, INC.

	 	12/31/08
	 	Dal-Tile SSC East, Inc.
	 
	MOHAWK CARPET, LLC

	 	12/31/08
	 	Mohawk Carpet Corporation






	 	 	 	 	 
	PLEDGOR	 	DATE OF CHANGE	 	MERGER/ ACQUISITION
	ALADDIN MANUFACTURING 

CORPORATION

	 	12/31/08
	 	Aladdin Texas, LLC
	 
	MOHAWK CARPET DISTRIBUTION, INC.

	 	12/31/08



12/31/08



12/31/08
	 	Aladdin of Texas
Holding, LLC; 




Mohawk Brands, Inc.;




Mohawk Carpet
Distribution, L.P.
	 
	DAL-TILE SHARED SERVICES, INC.

	 	12/31/08
	 	These entities merged
into Dal-Tile Shared
Services, Inc.: DTG
Tile, LLC and DTL
Tile, LLC
	 
	DAL-TILE DISTRIBUTION, INC.

	 	12/31/08
	 	Dal-Tile SSC, West, Inc






 









 








EXHIBIT 4(a)




[FORM OF]

IRREVOCABLE STOCK POWER8


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers to:




 





the following Equity Interests of _____________________, a ____________ [corporation]:



	 	 	 
	Number of Shares	 	Certificate Number
	 
	 	 




and irrevocably appoints ________________________ its agent and attorney-in-fact to transfer all or
any part of such Equity Interests and to take all necessary and appropriate action to effect any
such transfer. The agent and attorney-in-fact may substitute and appoint one or more persons to
act for him. The effectiveness of a transfer pursuant to this stock power shall be subject to any
and all transfer restrictions referenced on the face of the certificates evidencing such interest
or in the certificate of incorporation or bylaws of the subject corporation, to the extent they may
from time to time exist.




	 	 	 	 	 
	 	[INSERT NAME OF PLEDGOR PLEDGING CERTIFICATE]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	8	 	Identify transferee, number of shares and
certificate number. Appointment of agent to remain blank.




 









 










EXHIBIT 4(b)




[FORM OF]

ISSUER’S ACKNOWLEDGMENT




     The undersigned hereby (a) acknowledges receipt of the Pledge Agreement (as amended, restated,
extended, supplemented or otherwise modified from time to time, the “Pledge Agreement”;
capitalized terms used but not otherwise defined herein shall have the meanings assigned to such
terms in the Pledge Agreement), dated as of July 8, 2011 made by and among Mohawk Industries, Inc.,
a Delaware corporation (the “Company”), the Domestic Subsidiaries of the Company party
thereto from time to time (collectively with the Company, the “Pledgors”) and Bank of
America, N.A., in its capacity as administrative agent (in such capacity, the “Administrative
Agent”) for the Secured Parties, (b) agrees promptly to note on its books the security
interests granted to the Administrative Agent, for the benefit of the Secured Parties, pursuant to
the Pledge Agreement, (c) agrees that it will comply with instructions of the Administrative Agent
with respect to the applicable Pledged Collateral without further consent by the applicable Pledgor
and notwithstanding contrary instructions given by such Pledgor, (d) agrees to notify the
Administrative Agent upon obtaining knowledge of any interest in favor of any Person in the
applicable Pledged Collateral that is adverse to the interest of the Administrative Agent therein,
(e) agrees, following its receipt of a notice from the Administrative Agent stating that the
Administrative Agent is exercising exclusive control of the Pledged Collateral, not to comply with
any instructions or orders regarding any or all of the Pledged Collateral originated by any Person
or entity other than the Administrative Agent (and its successors and assigns) or a court of
competent jurisdiction and (f) waives any right or requirement at any time hereafter to receive a
copy of the Pledge Agreement in connection with the registration of any Pledged Collateral
thereunder in the name of the Administrative Agent or its nominee or the exercise of voting rights
by the Administrative Agent or its nominee.



	 	 	 	 	 
	 	[INSERT NAME OF ISSUER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 











 








EXHIBIT H-1




FORM OF DESIGNATED BORROWER




REQUEST AND ASSUMPTION AGREEMENT



Date: ___________, _____





			
	To:	 	Bank of America, N.A., as Administrative Agent






			
		 	Ladies and Gentlemen:





     This Designated Borrower Request and Assumption Agreement is made and delivered pursuant to
Section 2.14 of that certain Credit Agreement, dated as of July 8, 2011 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;”), among MOHAWK INDUSTRIES, INC., a Delaware corporation (the
“Company”), MOHAWK UNILIN INTERNATIONAL B.V., a private limited liability company (besloten
vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, having
its official seat (statutaire zetel) in Oisterwijk, the Netherlands and its office at Beneluxstraat
1 (5061 KD) Oisterwijk, the Netherlands, registered with the Dutch Trade Register of the
Chambers of Commerce under number 17229715, MOHAWK FOREIGN HOLDINGS, S.À R.L., a company organized
and existing under the laws of Luxembourg as a société a responsibilité limitée, MOHAWK
INTERNATIONAL HOLDINGS, S.À R.L., a company organized and existing under the laws of Luxembourg as
a société a responsibilité limitée, UNILIN B.V.B.A., a private limited liability company (besloten
vennootschap met beperkte aansprakelijkheid) organized under the laws of Belgium, the Designated
Borrowers from time to time party thereto, the Lenders from time to time party thereto, and Bank of
America, N.A., as Administrative Agent, Swing Line Lender and a L/C Issuer, and reference is made
thereto for full particulars of the matters described therein. All capitalized terms used in this
Designated Borrower Request and Assumption Agreement and not otherwise defined herein shall have
the meanings assigned to them in the Agreement.



     Each of ______________________ (the “Designated Borrower”) and the Company hereby
confirms, represents and warrants to the Administrative Agent and the Lenders that the Designated
Borrower is a Subsidiary of the Company.



     The documents required to be delivered to the Administrative Agent under Section 2.14
of the Agreement will be furnished to the Administrative Agent in accordance with the requirements
of the Agreement.



     The true and correct unique identification number that has been issued to the Designated
Borrower by its jurisdiction of organization and the name of such jurisdiction are set forth below:



 









 





	 	 	 
	Identification Number	 	Jurisdiction of Organization
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 





     The proposed Foreign Borrower Sublimit for the Designated Borrower is _________.



     The parties hereto hereby confirm that with effect from the date of the Designated Borrower
Notice for the Designated Borrower, the Designated Borrower shall have obligations, duties and
liabilities toward each of the other parties to the Agreement identical to those which the
Designated Borrower would have had if the Designated Borrower had been an original party to the
Agreement as a Borrower. Effective as of the date of the Designated Borrower Notice for the
Designated Borrower, the Designated Borrower confirms its acceptance of, and consents to, all
representations and warranties, covenants, and other terms and provisions of the Agreement.



     The parties hereto hereby request that the Designated Borrower be entitled to receive Loans
under the Agreement, and understand, acknowledge and agree that neither the Designated Borrower nor
the Company on its behalf shall have any right to request any Loans for its account unless and
until the date five Business Days after the effective date designated by the Administrative Agent
in a Designated Borrower Notice delivered to the Company and the Lenders pursuant to Section
2.14 of the Agreement.



     This Designated Borrower Request and Assumption Agreement shall constitute a Loan Document
under the Agreement.



     THIS DESIGNATED BORROWER REQUEST AND ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.



[Signature Page Follows]




 









 








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



	 	 	 	 	 
	 	[DESIGNATED BORROWER]

 	 
	 	By:  	 	 
	 	 	Title: 
	 
	 	 	 	 
	 
	 	MOHAWK INDUSTRIES, INC.

 	 
	 	By:  	 	 
	 	 	Title: 
	 
	 	 	 	 



 









 






	 	 	 	 	 



EXHIBIT H-2




FORM OF DESIGNATED BORROWER NOTICE




Date: ___________, _____





			
	To:	 	Mohawk Industries, Inc.






			
		 	The Lenders party to the Credit Agreement referred to below






			
		 	Ladies and Gentlemen:






     This Designated Borrower Notice is made and delivered pursuant to Section 2.14 of that
certain Credit Agreement, dated as of July 8, 2011 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the “Agreement;”), among MOHAWK
INDUSTRIES, INC., a Delaware corporation (the “Company”), MOHAWK UNILIN INTERNATIONAL B.V.,
a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid)
incorporated under the laws of the Netherlands, having its official seat (statutaire zetel) in
Oisterwijk, the Netherlands and its office at Beneluxstraat 1 (5061 KD) Oisterwijk, the
Netherlands, registered with the Dutch Trade Register of the Chambers of Commerce under
number 17229715, MOHAWK FOREIGN HOLDINGS, S.À R.L., a company organized and existing under the laws
of Luxembourg as a société a responsibilité limitée, MOHAWK INTERNATIONAL HOLDINGS, S.À R.L., a
company organized and existing under the laws of Luxembourg as a société a responsibilité limitée,
UNILIN B.V.B.A., a private limited liability company (besloten vennootschap met beperkte
aansprakelijkheid) organized under the laws of Belgium, the Designated Borrowers from time to time
party thereto, the Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent, Swing Line Lender and a L/C Issuer, and reference is made thereto for full
particulars of the matters described therein. All capitalized terms used in this Designated
Borrower Notice and not otherwise defined herein shall have the meanings assigned to them in the
Agreement.



     The Administrative Agent hereby notifies Company and the Lenders that effective as of the date
hereof _________________________ shall be a Designated Borrower and may receive Loans for its
account on the terms and conditions set forth in the Agreement.



     The Foreign Borrower Sublimit for the Designated Borrower shall be _________.



	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Title: