**Exhibit 4.5(a)**

 

**EXECUTIONCOPY**

 

 

 

CREDIT AGREEMENTdated as ofJune 29, 2007,amongVARIETAL DISTRIBUTION MERGER SUB, INC.(to be merged with and into CDRV INVESTORS, INC.and renamed VWR FUNDING, INC.),as the Parent Borrower,

THE FOREIGN SUBSIDIARY BORROWERS PARTY FROM TIME TO TIME HERETO,THE LENDERS PARTY HERETOandBANK OF AMERICA, N.A.,as Administrative Agent and Collateral Agent

 

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BANC OF AMERICA SECURITIES LLC,GOLDMAN SACHS CREDIT PARTNERS L.P.andJ.P. MORGAN SECURITIES INC.,as Joint Lead Arrangers and Joint Bookrunners,GOLDMAN SACHS CREDIT PARTNERS L.P.,as Syndication Agent,andJPMORGAN CHASE BANK, N.A.,DEUTSCHE BANK SECURITIES INC.andPNC BANK, NATIONAL ASSOCIATION,as Co-Documentation Agents

 

 

 

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**TABLE OFCONTENTS**

** **
| ** **                           | ** **                                                                     | **Page**   |
|--------------------------------------|--------------------------------------------------------------------------------|------------|
| ** **                           | ** **                                                                     | ** ** |
| ARTICLE I                       |                                                                           |
|                                 |                                                                           |
| ***DEFINITIONS***                    |                                                                           |
|                                 |                                                                           |       |
| SECTION 1.01.                   | ***Defined Terms***                                                            | 2          |
| SECTION 1.02.                   | ***Terms Generally***                                                          | 45         |
| SECTION 1.03.                   | ***Classification of Loans and  Borrowings***                                  | 45         |
| SECTION 1.04.                   | ***Rounding***                                                                 | 45         |
| SECTION 1.05.                   | ***References to Agreements and Laws***                                        | 46         |
| SECTION 1.06.                   | ***Times of Day***                                                             | 46         |
| SECTION 1.07.                   | ***Timing of Payment or Performance***                                         | 46         |
| SECTION 1.08.                   | ***Letter of Credit Amounts***                                                 | 46         |
| SECTION 1.09.                   | ***Exchange Rate; Currency  Equivalents Generally***                           | 46         |
| SECTION 1.10.                   | ***Alternative Currencies***                                                   | 46         |
| SECTION 1.11.                   | ***Pro Forma Calculations***                                                   | 46         |
|                                 |                                                                           |       |
| ARTICLE II                      |                                                                           |
|                                 |                                                                           |
| ***THE CREDITS***                    |                                                                           |
|                                 |                                                                           |       |
| SECTION 2.01.                   | ***Commitments***                                                              | 47         |
| SECTION 2.02.                   | ***Loans***                                                                    | 48         |
| SECTION 2.03.                   | ***Borrowing Procedure***                                                      | 49         |
| SECTION 2.04.                   | ***Evidence of Debt;  Repayment of Loans***                               | 50         |
| SECTION 2.05.                   | ***Fees***                                                                     | 50         |
| SECTION 2.06.                   | ***Interest on Loans***                                                        | 51         |
| SECTION 2.07.                   | ***Default Interest***                                                         | 52         |
| SECTION 2.08.                   | ***Alternate Rate of Interest***                                               | 52         |
| SECTION 2.09.                   | ***Termination and Reduction of  Commitments***                                | 53         |
| SECTION 2.10.                   | ***Conversion and Continuation of  Borrowings***                               | 53         |
| SECTION 2.11.                   | ***Repayment of Term Borrowings***                                             | 54         |
| SECTION 2.12.                   | ***Optional Prepayment***                                                      | 55         |
| SECTION 2.13.                   | ***Mandatory Prepayments***                                                    | 56         |
| SECTION 2.14.                   | ***Reserve Requirements; Change in  Circumstances***                           | 58         |
| SECTION 2.15.                   | ***Change in Legality***                                                       | 59         |
| SECTION 2.16.                   | ***Indemnity***                                                                | 59         |
| SECTION 2.17.                   | ***Pro Rata Treatment; Intercreditor  Agreements***                            | 60         |
| SECTION 2.18.                   | ***Sharing of Setoffs***                                                       | 61         |
| SECTION 2.19.                   | ***Payments***                                                                 | 61         |
| SECTION 2.20.                   | ***Taxes***                                                                    | 62         |
| SECTION 2.21.                   | ***Assignment of Commitments Under  Certain Circumstances; Duty to Mitigate*** | 63         |
| SECTION 2.22.                   | ***Swingline Loans***                                                          | 65         |
| SECTION 2.23.                   | ***Letters of Credit***                                                        | 66         |
| SECTION 2.24.                   | ***Incremental Credit Extensions***                                            | 69         |
|                                 |                                                                           |       |
| ARTICLE III                     |                                                                           |
|                                 |                                                                           |       |
| ***REPRESENTATIONS AND WARRANTIES*** |                                                                           |
|                                 |                                                                           |       |
| SECTION 3.01.                   | ***Organization; Powers***                                                     | 70         |
| SECTION 3.02.                   | ***Authorization***                                                            | 71         |

 

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| ** **                  | ** **                                                                                             | **Page**   |
|-----------------------------|--------------------------------------------------------------------------------------------------------|------------|
| ** **                  | ** **                                                                                             | ** ** |
| SECTION 3.03.          | ***Enforceability***                                                                                   | 71         |
| SECTION 3.04.          | ***Governmental Approvals***                                                                           | 71         |
| SECTION 3.05.          | ***Financial Statements***                                                                             | 71         |
| SECTION 3.06.          | ***No Material Adverse Change***                                                                       | 72         |
| SECTION 3.07.          | ***Title to Properties***                                                                              | 72         |
| SECTION 3.08.          | ***Subsidiaries***                                                                                     | 72         |
| SECTION 3.09.          | ***Litigation; Compliance with Laws***                                                                 | 72         |
| SECTION 3.10.          | ***Federal Reserve Regulations***                                                                      | 72         |
| SECTION 3.11.          | ***Investment Company Act***                                                                           | 72         |
| SECTION 3.12.          | ***Taxes***                                                                                            | 72         |
| SECTION 3.13.          | ***No Material Misstatements***                                                                        | 72         |
| SECTION 3.14.          | ***Employee Benefit Plans***                                                                           | 73         |
| SECTION 3.15.          | ***Environmental Matters***                                                                            | 73         |
| SECTION 3.16.          | ***Security Documents***                                                                               | 73         |
| SECTION 3.17.          | ***Location of Real Property and  Leased Premises***                                                   | 73         |
| SECTION 3.18.          | ***Labor Matters***                                                                                    | 74         |
| SECTION 3.19.          | ***Solvency***                                                                                         | 74         |
| SECTION 3.20.          | ***Intellectual Property***                                                                            | 74         |
| SECTION 3.21.          | ***Subordination of Junior Financing***                                                                | 74         |
|                        |                                                                                                   |       |
| ARTICLE IV             |                                                                                                   |
|                        |                                                                                                   |       |
| ***CONDITIONS OF LENDING*** |                                                                                                   |
|                        |                                                                                                   |       |
| SECTION 4.01.          | ***All Credit Events***                                                                                | 74         |
| SECTION 4.02.          | ***First Credit Event***                                                                          | 75         |
| SECTION 4.03.          | ***Additional Conditions Applicable  to Foreign Subsidiary Borrowers***                                | 76         |
|                        |                                                                                                   |       |
| ARTICLE V              |                                                                                                   |
|                        |                                                                                                   |       |
| ***AFFIRMATIVE COVENANTS*** |                                                                                                   |
|                        |                                                                                                   |       |
| SECTION 5.01.          | ***Existence; Compliance with Laws;  Businesses and Properties***                                      | 77         |
| SECTION 5.02.          | ***Insurance***                                                                                        | 78         |
| SECTION 5.03.          | ***Taxes***                                                                                            | 78         |
| SECTION 5.04.          | ***Financial Statements, Reports, etc***                                                               | 78         |
| SECTION 5.05.          | ***Notices***                                                                                          | 80         |
| SECTION 5.06.          | ***Information Regarding Collateral***                                                                 | 80         |
| SECTION 5.07.          | ***Maintaining Records; Access to  Properties and Inspections***                                       | 80         |
| SECTION 5.08.          | ***Use of Proceeds***                                                                                  | 81         |
| SECTION 5.09.          | ***Further Assurances***                                                                               | 81         |
| SECTION 5.10.          | ***Post-Closing Obligations***                                                                         | 83         |
| SECTION 5.11.          | ***Designation of Subsidiaries***                                                                      | 84         |
| SECTION 5.12.          | ***Maintenance of New York Process  Agent***                                                           | 85         |
| SECTION 5.13.          | ***Existing Notes***                                                                                   | 85         |
|                        |                                                                                                   |       |
| ARTICLE VI             |                                                                                                   |
|                        |                                                                                                   |       |
| ***NEGATIVE COVENANTS***    |                                                                                                   |
|                        |                                                                                                   |       |
| SECTION 6.01.          | ***Limitation on Incurrence of  Indebtedness and Issuance of Disqualified Stock and Preferred Stock*** | 85         |
| SECTION 6.02.          | ***Liens***                                                                                            | 91         |
| SECTION 6.03.          | ***Restricted Payments***                                                                              | 91         |
| SECTION 6.04.          | ***Fundamental Changes***                                                                              | 96         |

 

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| ** **                                              | ** **                                                             | **Page**   |
|---------------------------------------------------------|------------------------------------------------------------------------|------------|
| ** **                                              | ** **                                                             | ** ** |
| SECTION 6.05.                                      | ***Dispositions***                                                     | 98         |
| SECTION 6.06.                                      | ***Transactions with Affiliates***                                     | 100        |
| SECTION 6.07.                                      | ***Restrictive Agreements***                                           | 103        |
| SECTION 6.08.                                      | ***Business of the Parent Borrower  and Its Restricted Subsidiaries*** | 103        |
| SECTION 6.09.                                      | ***Modification of Junior Financing  Documentation***                  | 103        |
| SECTION 6.10.                                      | ***Changes in Fiscal Year***                                           | 103        |
|                                                    |                                                                   |       |
| ARTICLE VII                                        |                                                                   |
|                                                    |                                                                   |
| ***EVENTS OF DEFAULT***                                 |                                                                   |
|                                                    |                                                                   |       |
| SECTION 7.01.                                      | ***Events of Default***                                                | 103        |
|                                                    |                                                                   |       |
| ARTICLE VIII                                       |                                                                   |
|                                                    |                                                                   |       |
| ***THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT*** |                                                                   |
|                                                    |                                                                   |       |
| ARTICLE IX                                         |                                                                   |
|                                                    |                                                                   |       |
| ***MISCELLANEOUS***                                     |                                                                   |
|                                                    |                                                                   |       |
| SECTION 9.01.                                      | ***Notices***                                                          | 108        |
| SECTION 9.02.                                      | ***Survival of Agreement***                                            | 110        |
| SECTION 9.03.                                      | ***Binding Effect***                                                   | 110        |
| SECTION 9.04.                                      | ***Successors and Assigns***                                           | 110        |
| SECTION 9.05.                                      | ***Expenses; Indemnity***                                              | 114        |
| SECTION 9.06.                                      | ***Right of Setoff; Payments Set  Aside***                             | 115        |
| SECTION 9.07.                                      | ***Applicable Law***                                                   | 115        |
| SECTION 9.08.                                      | ***Waivers; Amendment***                                               | 116        |
| SECTION 9.09.                                      | ***Interest Rate Limitation***                                         | 120        |
| SECTION 9.10.                                      | ***Entire Agreement***                                                 | 120        |
| SECTION 9.11.                                      | ***WAIVER OF JURY TRIAL***                                             | 120        |
| SECTION 9.12.                                      | ***Severability***                                                     | 120        |
| SECTION 9.13.                                      | ***Counterparts***                                                     | 120        |
| SECTION 9.14.                                      | ***Headings***                                                         | 121        |
| SECTION 9.15.                                      | ***Jurisdiction; Consent to Service  of Process***                     | 121        |
| SECTION 9.16.                                      | ***Confidentiality***                                                  | 122        |
| SECTION 9.17.                                      | ***No Advisory or Fiduciary  Responsibility***                         | 123        |
| SECTION 9.18.                                      | ***Release of Collateral***                                            | 123        |
| SECTION 9.19.                                      | ***USA PATRIOT Act Notice***                                           | 124        |
| SECTION 9.20.                                      | ***Lender Action***                                                    | 124        |
| SECTION 9.21.                                      | ***Effectiveness of Merger***                                          | 124        |
| SECTION 9.22.                                      | ***Obligations of the Foreign  Subsidiary Borrowers***                 | 124        |

 

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| SCHEDULES             |   |                                            |
|-----------------------|--------|-------------------------------------------------|
|                  |   |                                            |
| Schedule A       | — | Additional Alternative Currencies               |
| Schedule B       | — | Foreign Subsidiary Borrowers                    |
| Schedule 1.01(a) | — | Subsidiary Guarantors                           |
| Schedule 1.01(b) | — | Disqualified Institutions                       |
| Schedule 1.01(c) | — | Existing Letters of Credit                      |
| Schedule 1.01(d) | — | Immaterial Subsidiaries                         |
| Schedule 2.01    | — | Lenders and Commitments                         |
| Schedule 3.08    | — | Subsidiaries                                    |
| Schedule 3.09    | — | Litigation                                      |
| Schedule 3.15    | — | Environmental Matters                           |
| Schedule 3.17(a) | — | Owned Real Property                             |
| Schedule 3.17(b) | — | Leased Real Property                            |
| Schedule 3.18    | — | Labor Matters                                   |
| Schedule 3.20    | — | Intellectual Property                           |
| Schedule 6.01    | — | Existing Indebtedness                           |
| Schedule 6.02    | — | Existing Liens                                  |
|                  |   |                                            |
| EXHIBITS              |   |                                            |
|                  |   |                                            |
| Exhibit A        | — | Form of Administrative Questionnaire       |
| Exhibit B        | — | Form of Assignment and Acceptance          |
| Exhibit C        | — | Form of Borrowing Request                  |
| Exhibit D        | — | Form of Guarantee and Collateral Agreement |
| Exhibit E        | — | Form of Non-Bank Certificate               |
| Exhibit F-1      | — | Form of Trademark Security Agreement       |
| Exhibit F-2      | — | Form of Patent Security Agreement          |
| Exhibit F-3      | — | Form of Copyright Security Agreement       |
| Exhibit G-1      | — | Form of Revolving Credit Note              |
| Exhibit G-2      | — | Form of Term Loan Note                     |
| Exhibit H        | — | Form of Joinder Agreement                  |

 

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CREDIT AGREEMENT dated as of June 29, 2007(this “Agreement”), among VARIETAL DISTRIBUTION MERGER SUB, INC., aDelaware corporation (“Merger Sub”), to be merged with and into CDRVINVESTORS, INC., a Delaware corporation, and renamed VWR FUNDING, INC. (the “Company”),each of the Foreign Subsidiary Borrowers (as defined herein) party from time totime hereto (the Foreign Subsidiary Borrowers, together with the ParentBorrower (as defined herein), collectively, the “Borrowers” and each, a“Borrower”), the Lenders (as defined herein), BANK OF AMERICA, N.A. (“Bankof America”), as Administrative Agent and Collateral Agent (in each case,as defined herein) for the Lenders (as defined herein), BANC OF AMERICASECURITIES LLC, GOLDMAN SACHS CREDIT PARTNERS L.P. AND J.P. MORGAN SECURITIESINC., as joint lead arrangers (the “Arrangers”) for the CreditFacilities (as defined herein), GOLDMAN SACHS CREDIT PARTNERS L.P., assyndication agent, and JPMORGAN CHASE BANK, N.A., DEUTSCHE BANK SECURITIES INC.and PNC BANK, NATIONAL ASSOCIATION, as co-documentation agents.  Capitalized terms used herein shall have themeanings set forth in Article I.

 

RECITALS

 

A.            TheSponsor has formed Varietal Distribution Holdings, LLC, a Delaware corporation(“Holdings”), which owns all of the Equity Interests of VWRInvestors, Inc., a Delaware corporation (“IntermediateHoldco”),which in turn owns all of the Equity Interests of Merger Sub.  Pursuant to the terms of the MergerAgreement, Merger Sub will merge with and into the Company, with the Companysurviving the Merger.  As a result of theMerger, the Company will become a direct wholly-owned subsidiary ofIntermediate Holdco.

 

B.            Tofund a portion of the Merger, the Sponsor and certain other investors(including certain members of management) will contribute an amount in cash toHoldings in exchange for Equity Interests (which cash will be contributed toMerger Sub in exchange for Equity Interests in Merger Sub), which together withthe amount of any rollover equity issued to existing shareholders of theCompany, shall be no less than 25.0% of the pro forma total consolidatedcapitalization of Holdings (such contribution and rollover, collectively, the “EquityInvestment”).

 

C.            TheParent Borrower will consummate an offer to purchase the Existing Notespursuant to a tender offer (the “Tender Offer”), with any remainingoutstanding Existing Notes either (i) not being entitled to the benefit ofsubstantially all of the restrictive covenants and certain events of defaultcontained in the indentures applicable to such Existing Notes,(ii) defeased within 30 days after the Closing Date or (iii) redeemedwithin 30 days after the Closing Date.

 

D.            Toconsummate the transactions contemplated by the Merger Agreement, Merger Subwill issue (i) $675,000,000 in original aggregate principal amount of its10.25%/11.25% senior PIK toggle notes due 2015 and (ii) the DollarEquivalent of approximately $520,000,000 in original aggregate principal amountof its 10.75% senior subordinated notes due 2017.

 

E.             TheBorrowers have requested (a) the Lenders to extend credit in the form of(i) Dollar Term Loans on the Closing Date in an aggregate principal amountnot in excess of $615,000,000, (ii) Euro Term Loans on the Closing Date inan aggregate principal amount not in excess of €600,000,000 and (iii) Revolving Loans at any time and from time totime prior to the Revolving Credit Maturity Date, in an aggregate principalamount at any time outstanding not in excess of $250,000,000, (b) theSwingline Lender to extend credit in the form of Swingline Loans, in anaggregate principal amount at any time outstanding not in excess of $25,000,000and (c) the Issuing Bank to issue Letters of Credit, in an aggregate faceamount at any time outstanding not in excess of $70,000,000.

 

F.             TheLenders are willing to extend such credit to the Borrowers and the Issuing Bankis willing to issue Letters of Credit for the joint and several****account of the Borrowers, in each case, onthe terms and subject to the conditions set forth herein.  Accordingly, the parties hereto agree asfollows:

 

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# ARTICLE I

#  

# ***Definitions***

#  

SECTION 1.01.      ***Defined Terms***.  As used in this Agreement, the followingterms shall have the meanings specified below:

 

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

 

“Acquired Indebtedness” shall mean, withrespect to any specified Person,

 

(a)           Indebtednessof any other Person existing at the time such other Person is merged with orinto or became a Restricted Subsidiary of such specified Person, includingIndebtedness incurred in connection with, or in contemplation of, such otherPerson merging with or into or becoming a Restricted Subsidiary of suchspecified Person, and

 

(b)           Indebtednesssecured by a Lien encumbering any asset acquired by such specified Person.

 

“Additional Lender” shall have the meaningassigned to such term in Section 2.24(a).

 

“Adjusted LIBO Rate” shall mean, (a) withrespect to any Eurodollar Borrowing for any Interest Period (other than aBorrowing of Euro Term Loans), an interest rate per annum equal to the productof (i) the LIBO Rate in effect for such Interest Period and(ii) Statutory Reserves and (b) with respect to any EurodollarBorrowing of Euro Term Loans for any Interest Period, an interest rate perannum equal to the product of (i) the EURIBOR Rate in effect for suchInterest Period and (ii) Statutory Reserves.

 

“Administration Fee” shall have the meaningassigned to such term in Section 2.05(b).

 

“Administrative Agent” shall mean Bank ofAmerica, N.A., in its capacity as administrative agent for the Lenders, andshall include any successor administrative agent appointed pursuant to Article VIII.

 

“Administrative Questionnaire” shall mean anAdministrative Questionnaire substantially in the form of Exhibit A,or such other form as may be supplied from time to time by the AdministrativeAgent.

 

“Affiliate” shall mean, when used with respectto a specified Person, another Person that directly, or indirectly through oneor more intermediaries, Controls, is Controlled by or is under common Controlwith the Person specified; provided, however, that no Lender (norany of its Affiliates) shall be deemed to be an Affiliate of the ParentBorrower or any of its subsidiaries by virtue of its capacity as a Lenderhereunder.

 

“Agents” shall have the meaning assigned tosuch term in Article VIII.

 

“Agreement Currency”has the meaning specified in Section 9.15(d).

 

“Aggregate Revolving Credit Exposure” shallmean, at any time, the aggregate amount of the Lenders’ Revolving CreditExposures at such time.

 

“Agreement” shall have the meaning assigned tosuch term in the preamble.

 

“Alternate Base Rate” shall mean, for any day,a rate per annum equal to the greater of (a) the Prime Rate in effect onsuch day and (b) the Federal Funds Effective Rate in effect on such dayplus 1/2 of 1%.  Any change in theAlternate Base Rate due to a change in the Prime Rate or the Federal FundsEffective Rate shall be effective on the effective date of such change in thePrime Rate or the Federal Funds Effective Rate, as the case may be.

 

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“Alternative Currency” shall mean euro, Sterling,Canadian Dollars or any other foreign currency approved under Section 9.08(g).

 

“Alternative Currency Sublimit” shall have themeaning assigned to such term in Section 2.01(c).

 

“Applicable Percentage” shall mean, for anyday, (a) with respect to any Eurodollar Loan that is a Term Loan, 2.50%and with respect to any ABR Loan that is Term Loan, 1.50% and(b) (i) with respect to any Swingline Loan, the applicable percentageper annum set forth below under the caption “ABR and Canadian Base RateSpread”, (ii) with respect to any Eurodollar Revolving Loan, ABR RevolvingLoan, BA Rate Revolving Loan or Canadian Base Rate Revolving Loan, theapplicable percentage per annum set forth below under the caption “Eurodollarand BA Rate Spread” or “ABR and Canadian Base Rate Spread” and (iii) withrespect to the Commitment Fee, the applicable percentage per annum set forthbelow under the caption “Fee Percentage”, as the case may be (based upon theTotal Net Leverage Ratio as of the relevant date of determination):

 

| **Total Net  Leverage Ratio**                                                    | ** ** | **Eurodollar and   BA Rate Spread** | ** ** | **ABR and  Canadian  Base Rate Spread** | ** ** | **Fee Percentage** | ** ** |
|----------------------------------------------------------------------------------|------------|-------------------------------------|------------|-----------------------------------------|------------|--------------------|------------|
| **Category  1**Greater than 7.50 to 1.00                                         |       | 2.50                                | %          | 1.50                                    | %          | 0.500              | %          |
| **Category  2**Less than or equal to 7.50 to 1.00 but greater than  6.00 to 1.00 |       | 2.25                                | %          | 1.25                                    | %          | 0.375              | %          |
| **Category  3**Less than or equal to 6.00 to 1.00                                |       | 2.00                                | %          | 1.00                                    | %          | 0.250              | %          |

 

In respect of clauses (a) and (b) ofthis definition, each change in the Applicable Percentage resulting from achange in the Total Net Leverage Ratio shall be effective on and after the dateof delivery to the Administrative Agent of the Section 5.04 Financials anda Pricing Certificate indicating such change until and including the dateimmediately preceding the next date of delivery of such financial statementsand the related Pricing Certificate indicating another such change.Notwithstanding the foregoing, until the Parent Borrower shall have deliveredthe Section 5.04 Financials and the related Pricing Certificate covering aperiod that includes the first fiscal quarter of the Parent Borrower endedafter the Closing Date, the Total Net Leverage Ratio shall be deemed to be inCategory 1 for purposes of determining the Applicable Percentage.  In addition, at the option of theAdministrative Agent and the Required Lenders, (x) at any time duringwhich the Parent Borrower has failed to deliver the Section 5.04Financials or the related Pricing Certificate by the date required thereunderor (y) at any time after the occurrence and during the continuance of anEvent of Default, then the Total Net Leverage Ratio shall be deemed to be inthe then-existing Category for the purposes of determining the ApplicablePercentage (but only for so long as such failure or Event of Default continues,after which the Category shall be otherwise as determined as set forth above).

 

“Arrangers” shall have the meaning assigned tosuch term in the preamble.

 

“Assignment and Acceptance” shall mean anassignment and acceptance entered into by a Lender and an assignee, andaccepted by the Administrative Agent and, to the extent required by Section 9.04(b),consented to by the Parent Borrower, substantially in the form of Exhibit Bor such other form as shall be reasonably approved by the Administrative Agent.

 

“Auto-Renewal Letter of Credit” shall have themeaning assigned to such term in Section 2.23(c).

 

“BA Interest Period”means, relative to any BA Rate Loan, the period beginning on (and including)the date on which such BA Rate Loan is made or continued to (but excluding) thedate which is one, two or three months thereafter, as selected by the ParentBorrower; provided, that if any BA Interest Period would end on a day

 

3

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otherthan a Business Day, such BA Interest Period shall be extended to the nextsucceeding Business Day unless such next succeeding Business Day would fall inthe next calendar month, in which case such BA Interest Period shall end on thenext preceding Business Day.

 

“BA Rate”means, with respect to any BA Interest Period for any BA Rate Loan, (a) inthe case of any Revolving Lender named in Schedule I of the Bank Act(Canada), the rate determined by the Administrative Agent to be the averageoffered rate for bankers’ acceptances for the applicable BA Interest Periodappearing on Reuters Screen CDOR (Certificate of Deposit Offered Rate)page as of 10:00 a.m. (New York City time) on the second fullBusiness Day next preceding the first day of each BA Interest Period and(b) in the case of any other Revolving Lender, (i) the rate per annum set forth in clause (a) above plus (ii) 0.10%.  In theevent that such rate does not appear on the Reuters Screen CDOR (Certificate ofDeposit Offered Rate) page (or otherwise on the Reuters screen), the BARate for the purposes of this definition shall be determined by reference tosuch other comparable publicly available service for displaying bankers’ acceptancerates as may be selected by the Administrative Agent and, in the event that theCDOR rate is not available for any Business Day, the CDOR rate for theimmediately previous Business Day for which a CDOR rate is available shall beused.

 

“Board” shall mean the Board of Governors ofthe Federal Reserve System of the United States of America.

 

“Borrower Materials” shall have the meaningassigned to such term in Section 5.04.

 

“Borrowers” shall have the meaning assigned tosuch term in the preamble.

 

“Borrowing” shall mean (a) Loans of thesame Class and Type made, converted or continued on the same date and, inthe case of Eurodollar Loans or BA Rate Loans, as to which a single InterestPeriod is in effect, or (b) a Swingline Loan.

 

“Borrowing Request” shall mean a request by aBorrower in accordance with the terms of Section 2.03 andsubstantially in the form of Exhibit C, or such other form as shallbe approved by the Administrative Agent.

 

“BusinessDay” shallmean any day other than a Saturday, Sunday or day on which banks in New YorkCity are generally authorized or required by law to close; provided, however,

 

(a)           ifsuch day relates to any interest rate settings as to a Eurodollar Loandenominated in dollars, any fundings, disbursements, settlements and paymentsin dollars in respect of any such Eurodollar Loan, or any other dealings indollars to be carried out pursuant to this Agreement in respect of any suchEurodollar Loan, such day shall be a day on which dealings in deposits indollars are conducted by and between banks in the London interbank eurodollarmarket;

 

(b)           ifsuch day relates to any interest rate settings as to a Eurodollar Loandenominated in euro, any fundings, disbursements, settlements and payments ineuro in respect of any such Eurodollar Loan, or any other dealings in euro tobe carried out pursuant to this Agreement in respect of any such EurodollarLoan, such day shall be a TARGET Day;

 

(c)           ifsuch day relates to any interest rate settings as to a Eurodollar Loandenominated in Sterling, such day shall be a day on which dealings in depositsin Sterling are conducted by and between banks in the London interbank market;

 

(d)           ifsuch day relates to any fundings, disbursements, settlements and payments inSterling in respect of a Eurodollar Loan denominated in Sterling, or any otherdealings in Sterling to be carried out pursuant to this Agreement in respect ofany such Eurodollar Loan (other than any interest rate settings), such dayshall be a day on which banks are open for foreign exchange business in London;

 

(e)           ifsuch day relates to any setting of the BA Rate or the Canadian Base Rate, suchday shall be a day on which banks are open for business in Toronto; and

 

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(f)            ifsuch day relates to any fundings, disbursements, settlements and payments in anAlternative Currency (other than those specified above) in respect of a EurodollarLoan denominated in such Alternative Currency, or any other dealings in suchAlternative Currency to be carried out pursuant to this Agreement in respect ofany such Eurodollar Loan (other than any interest rate settings), such dayshall be a day on which banks are open for foreign exchange business in London,New York and the principal financial center of such Alternative Currency as setforth on Schedule A.

 

“Canadian Base Rate”means the rate determined by the Administrative Agent as the rate displayed ator about 10:30 a.m. (New York City time) on display page CAPRIME ofthe Reuters Screen as the prime rate for loans denominated in Canadian Dollarsby Canadian banks to borrowers in Canada; provided, however,that, in the event that such rate does not appear on the Reuters Screen on suchday or if the basis of calculation of such rate is changed after the datehereof and, in the reasonable judgment of the Administrative Agent, such rateceases to reflect each Revolving Lender’s cost of funding to the same extent ason the date hereof, then the “CanadianBase Rate” shall be the average of the floating rate of interest per annum established (or commerciallyknown) as “prime rate” forloans denominated in Canadian Dollars on such day by three major Canadian banksselected by the Administrative Agent.

 

“Canadian Dollar”and “C$” each mean thelawful currency of Canada.

 

“Capital Expenditures” shall mean, as to any Person for anyperiod, the additions to property, plant and equipment and other capital expendituresof such Person and its subsidiaries that are (or should be) set forth in aconsolidated statement of cash flows of the such Person.

 

“Capital Stock” shall mean:

 

(a)           inthe case of a corporation, corporate stock;

 

(b)           inthe case of an association or business entity, any and all shares, interests,participations, rights or other equivalents (however designated) of corporatestock;

 

(c)           inthe case of a partnership or limited liability company, partnership ormembership interests (whether general or limited); and

 

(d)           anyother interest or participation that confers on a Person the right to receive ashare of the profits and losses of, or distributions of assets of, the issuingPerson.

 

“Capitalized Lease Obligations” shall mean, asto any Person, at the time any determination thereof is to be made, the amountof the liability in respect of a capital lease that would at such time berequired to be capitalized and reflected as a liability on a balance sheet(excluding the footnotes thereto) of such Person in accordance with GAAP.

 

“Cash Equivalents” shall mean:

 

(a)           dollars;

 

(b)           (i) Sterling, Canadian Dollars, euro, or any national currency of any participatingmember state of the EMU; or

 

(ii)           inthe case of the Parent Borrower or a Restricted Subsidiary, such local currenciesheld by them from time to time in the ordinary course of business;

 

(c)           securitiesissued or directly and fully and unconditionally guaranteed or insured by theU.S. government or any agency or instrumentality thereof the securities ofwhich are unconditionally guaranteed as a full faith and credit obligation ofsuch government with maturities of 24 months or less from the date ofacquisition;

 

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(d)           certificatesof deposit, time deposits and eurodollar time deposits with maturities of oneyear or less from the date of acquisition, bankers’ acceptances with maturitiesnot exceeding one year and overnight bank deposits, in each case with(i) any Revolving Credit Lender or an Affiliate thereof or (ii) anycommercial bank having capital and surplus of not less than $250,000,000 in thecase of U.S. banks and $100,000,000 (or the U.S. dollar equivalent as of thedate of determination) in the case of non-U.S. banks;

 

(e)           repurchaseobligations for underlying securities of the types described in clauses(c) and (d) entered into with any financial institutionmeeting the qualifications specified in clause (d) above;

 

(f)            commercialpaper rated at least P-2 by Moody’s or at least A-2 by S&P and in each casematuring within 24 months after the date of creation thereof;

 

(g)           marketableshort-term money market and similar securities having a rating of at least P-2or A-2 from either Moody’s or S&P, respectively (or, if at any time neitherMoody’s nor S&P shall be rating such obligations, an equivalent rating fromanother Rating Agency) and in each case maturing within 24 months after thedate of creation thereof;

 

(h)           investmentfunds investing 95% of their assets in securities of the types described in clauses(a) through (g) above;

 

(i)            readilymarketable direct obligations issued by any state, commonwealth or territory ofthe United States or any political subdivision or taxing authority thereofhaving an Investment Grade Rating from either Moody’s or S&P withmaturities of 24 months or less from the date of acquisition;

 

(j)            Indebtednessor Preferred Stock issued by Persons with a rating of “A” or higher fromS&P or “A2” or higher from Moody’s with maturities of 24 months or lessfrom the date of acquisition;

 

(k)           Investmentswith average maturities of 12 months or less from the date of acquisition inmoney market funds rated A- (or the equivalent thereof) or better by S&P orA3 (or the equivalent thereof) or better by Moody’s;

 

(l)            sharesof investment companies that are registered under the Investment Company Act of1940 and substantially all the investments of which are one or more of thetypes of securities described in clauses (a) through (k)above; and

 

(m)          inthe case of any Foreign Subsidiary, investments of comparable tenure and creditquality to those described in the foregoing clauses (a) through (l)or other high quality short term in-vestments, in each case, customarilyutilized in countries in which such Foreign Subsidiary operates for short termcash management purposes.

 

Notwithstanding the foregoing, Cash Equivalents shallinclude amounts denominated in currencies other than those set forth in clauses(a) and (b) above, provided that such amounts areconverted into any currency listed in clauses (a) and (b) aspromptly as practicable and in any event within ten Business Days following thereceipt of such amounts.

 

“Cash Pooling Arrangements” means a depositaccount arrangement among a single depository institution, the Parent Borrowerand one or more Foreign Subsidiaries involving the pooling of cash deposits inand overdrafts in respect of one or more deposit accounts (each located outsideof the United States and any States and territories thereof) with suchinstitution by the Parent Borrower and such Foreign Subsidiaries for cashmanagement purposes.

 

“Change in Law” shall mean (a) theadoption of any law, rule or regulation after the date of this Agreementor, in the case of an assignee, an adoption after the date such Person became aparty to this Agreement, (b) any change in any law, rule orregulation or in the interpretation or application thereof by any GovernmentalAuthority after the date of this Agreement or, in the case of an assignee, achange after the date such Person became a party to

 

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thisAgreement, or (c) compliance by any Lender or the Issuing Bank (or, forpurposes of Section 2.14, by any lending office of such Lender orby such Lender’s or Issuing Bank’s holding company, if any) with any request,guideline or directive of any Governmental Authority made or issued after thedate the relevant Lender or Issuing Bank becomes a party to this Agreement.

 

A “Change of Control” shall be deemed to haveoccurred if:

 

(a)           thePermitted Investors cease to have the power, directly or indirectly, to vote ordirect the voting of Equity Interests of the Parent Borrower representing amajority of the ordinary voting power for the election of directors (orequivalent governing body) of the Parent Borrower; provided that theoccurrence of the foregoing event shall not be deemed a Change of Control if,

 

(i)            any time prior to the consummationof a Qualified Public Offering, and for any reason whatsoever, (A) thePermitted Investors otherwise have the right, directly or indirectly, todesignate (and do so designate) a majority of the board of directors of theParent Borrower or (B) the Permitted Investors own, directly orindirectly, of record and beneficially an amount of Equity Interests of theParent Borrower having ordinary voting power that is equal to or more than 50%of the amount of Equity Interests of the Parent Borrower having ordinary votingpower owned, directly or indirectly, by the Permitted Investors of record andbeneficially as of the Closing Date (determined by taking into account anystock splits, stock dividends or other events subsequent to the Closing Datethat changed the amount of Equity Interests, but not the percentage of EquityInterests, held by the Permitted Investors) and such ownership by the PermittedInvestors represents the largest single block of Equity Interests of the ParentBorrower having ordinary voting power held by any person or related group forpurposes of Section 13(d) of the Securities Exchange Act of 1934, or

 

(ii)           at any time after the consummation ofa Qualified Public Offering, and for any reason whatsoever, (A) no“person” or “group” (as such terms are used in Sections 13(d) and14(d) of the Securities Exchange Act of 1934 as in effect on the datehereof, but excluding any employee benefit plan of such Person and itssubsidiaries, and any Person or entity acting in its capacity as trustee, agentor other fiduciary or administrator of any such plan), excluding the PermittedInvestors, shall become the “beneficial owner” (as defined inRules 13(d)-3 and 13(d)-5 under such Act), directly or indirectly, of morethan the greater of (x) 35% of outstanding Equity Interests of the ParentBorrower having ordinary voting power and (y) the percentage of the then outstandingEquity Interests of the Parent Borrower having ordinary voting power owned,directly or indirectly, beneficially and of record by the Permitted Investors,and (B) during each period of 12 consecutive months, a majority of theboard of directors of the Parent Borrower shall consist of the ContinuingDirectors; or

 

(b)           anychange in control (or similar event, however denominated) with respect to theParent Borrower or any Restricted Subsidiary shall occur under and as definedin (i) the New Senior Notes Documentation to the extent the New SeniorNotes constitute Material Indebtedness of the Parent Borrower or any RestrictedSubsidiary or (ii) the New Mezzanine Notes Documentation to the extent theNew Mezzanine Notes constitute Material Indebtedness of the Parent Borrower orany Restricted Subsidiary; or

 

(c)           atany time prior to the consummation of a Qualified Public Offering, Holdingsshall directly or indirectly own, beneficially and of record, less than 100% ofthe issued and outstanding Equity Interests of the Parent Borrower; or

 

(d)           atany time when any Obligations (other than contingent obligations for unassertedclaims) of a Foreign Subsidiary Borrower remain outstanding, such ForeignSubsidiary Borrower ceasing to be a direct or indirect Restricted Subsidiary ofthe Parent Borrower (unless a Borrower or a Guarantor shall expressly haveassumed all the Obligations of such Foreign Subsidiary Borrower under thisAgreement and the other Loan Documents to which such Foreign Subsidiary Borroweris a party).

 

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“Charges” shall have the meaning assigned tosuch term in Section 9.09.

 

“Class”, when used in reference to any Loan orBorrowing, refers to whether such Loan, or the Loans comprising such Borrowing,are Revolving Loans, Dollar Term Loans, Euro Term Loans or Swingline Loans,and, when used in reference to any Commitment, refers to whether suchCommitment is a Revolving Credit Commitment, Dollar Term Loan Commitment, EuroTerm Loan Commitment or Swingline Commitment.

 

“Closing Date” shall mean June 29, 2007.

 

“Code” shall mean the Internal Revenue Code of1986, as amended from time to time, or any legislation successor thereto.

 

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

 

“Collateral Agent” shall mean Bank of America,N.A., in its capacity as collateral agent for the Secured Parties, and shallinclude any successor collateral agent appointed pursuant to Article VIII.

 

“Commitment Fee” shall have the meaningassigned to such term in Section 2.05(a).

 

“Commitments” shall mean the Revolving CreditCommitments, Dollar Term Loan Commitments, Euro Term Loan Commitment andSwingline Commitment.

 

“Company” shall have the meaning assigned tosuch term in the preamble.

 

“Confidential Information Memorandum” shallmean the Confidential Information Memorandum dated June 2007, relating tothe syndication of the Credit Facilities.

 

“Consolidated” or “consolidated” withrespect to any Person, unless otherwise specifically indicated, refers to suchPerson consolidated with the Parent Borrower and its Restricted Subsidiaries,and excludes from such consolidation any Unrestricted Subsidiary as if suchUnrestricted Subsidiary were not an Affiliate of such Person.

 

“Consolidated Depreciation and Amortization Expense”shall mean, with respect to any Person, for any period, the total amount ofdepreciation and amortization expense, including the amortization of deferredfinancing fees and amortization of unrecognized prior service costs and actuarialgains and losses related to pensions and other post-employment benefits, ofsuch Person and its Restricted Subsidiaries for such period on a consolidatedbasis and otherwise determined in accordance with GAAP.

** **

“Consolidated Indebtedness” shall mean, as ofany date of determination, the sum, without duplication, of (a) the totalamount of Indebtedness under clauses (a)(i), (a)(ii), (a)(iii) (but,in the case of clause (iii), only to the extent of any unreimburseddrawings thereunder) and (a)(iv) of the definition thereof of theParent Borrower and its Restricted Subsidiaries, plus (b) the greater ofthe aggregate liquidation value and maximum fixed repurchase price withoutregard to any change of control or redemption premiums of all DisqualifiedStock of the Parent Borrower and the Restricted Guarantors and all PreferredStock of its Restricted Subsidiaries that are not Guarantors, in each case, asdetermined on a consolidated basis in accordance with GAAP.

 

“Consolidated Interest Expense” shall mean,with respect to any Person for any period, without duplication, the sum of:

 

(a)           consolidatedinterest expense of such Person and its Restricted Subsidiaries for such period,to the extent such expense was deducted (and not added back) in computingConsolidated Net Income (including (i) amortization of original issuediscount resulting from the issuance of Indebtedness at less than par,(ii) all commissions, discounts and other fees and charges owed withrespect to letters of credit or bankers acceptances, (iii) non-cashinterest expense (but excluding any non-cash interest expense attributable tothe movement in the mark to market valuation of Hedging Obligations or otherderivative

 

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instruments pursuant to GAAP), (iv) the interest component ofCapitalized Lease Obligations, (v) net payments, if any, pursuant tointerest rate Hedging Obligations with respect to Indebtedness, (vi) netlosses on Hedging Obligations or other derivative instruments entered into forthe purpose of hedging interest rate risk and (vii) costs of surety bondsin connection with financing activities and excluding (x) amortization ofdeferred financing fees, debt issuance costs, commissions, fees and expenses,(y) any expensing of bridge, commitment and other financing fees and (z)commissions, discounts, yield and other fees and charges (including anyinterest expense) related to any Receivables Facility); plus

 

(b)           consolidatedcapitalized interest of such Person and its Restricted Subsidiaries for suchperiod, whether paid or accrued; less

 

(c)           interestincome of such Person and its Restricted Subsidiaries for such period.

 

For purposes of this definition, interest on aCapitalized Lease Obligation shall be deemed to accrue at an interest ratereasonably determined by the Parent Borrower to be the rate of interestimplicit in such Capitalized Lease Obligation in accordance with GAAP.

 

“Consolidated NetIncome” shall mean, with respect to any Person for anyperiod, the net income (loss) of such Person and its subsidiaries that areRestricted Subsidiaries for such period, determined on a consolidated basis inaccordance with GAAP and before any reduction in respect of Preferred Stockdividends; provided, however, that (without duplication),

 

(a)           thenet income for such period of any Person that is not a subsidiary, or is an UnrestrictedSubsidiary, or that is accounted for by the equity method of accounting, shallbe excluded; provided, that Consolidated Net Income of such Person shallbe increased by the amount of dividends or distributions or other payments thatare actually paid in cash (or to the extent converted into cash) to such Personor a subsidiary thereof that is the Parent Borrower or a Restricted Subsidiaryin respect of such period, and

 

(b)           solelyfor the purpose of determining the amount available under clause (b) ofthe definition of Restricted Payment Applicable Amount, the net income for suchperiod of any Restricted Subsidiary (other than any Guarantor) shall beexcluded if the declaration or payment of dividends or similar distributions bythat Restricted Subsidiary of its net income is not at the date of determinationwholly permitted without any prior governmental approval (which has not beenobtained) or, directly or indirectly, by the operation of the terms of itscharter or any agreement, instrument, judgment, decree, order, statute, rule,or governmental regulation applicable to that Restricted Subsidiary or itsstockholders, unless such restriction with respect to the payment of dividendsor similar distributions has been legally waived, provided, thatConsolidated Net Income of the Parent Borrower will be increased by the amountof dividends or other distributions or other payments actually paid in cash (orto the extent converted into cash) to the Parent Borrower or a RestrictedSubsidiary thereof in respect of such period, to the extent not already includedtherein.

 

Notwithstanding the foregoing, for the purpose of Section 6.03only (other than paragraph (c) of the definition of RestrictedPayment Applicable Amount), there shall be excluded from Consolidated NetIncome any income arising from any sale or other disposition of RestrictedInvestments made by the Parent Borrower and its Restricted Subsidiaries, anyrepurchases and redemptions of Restricted Investments from the Parent Borrowerand its Restricted Subsidiaries, any repayments of loans and advances whichconstitute Restricted Investments by the Parent Borrower or any of itsRestricted Subsidiaries, any sale of the stock of an Unrestricted Subsidiary orany distribution or dividend from an Unrestricted Subsidiary, in each case onlyto the extent such amounts increase the amount of Restricted Payments permittedunder paragraph (d) of the definition of Restricted PaymentApplicable Amount.

 

“Contingent Obligations” shall mean, withrespect to any Person, any obligation of such Person guaranteeing or having theeconomic effect of guaranteeing any leases, dividends or other obligationsthat, in each case, do not constitute Indebtedness (“primary obligations”)of any other Person (the “primary obligor”) in any

 

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manner,whether directly or indirectly, including, without limitation, any obligationof such Person, whether or not contingent,

 

(a)           to purchase any such primaryobligation or any property constituting direct or indirect security therefor,or

 

(b)           to advance or supply funds

 

(i)      for the purchase of payment of any suchprimary obligation, or

 

(ii)     to maintain working capital or equitycapital of the primary obligor or otherwise to maintain the net worth orsolvency of the primary obligor, or

 

(c)           to purchase property, securities orservices primarily for the purpose of assuring the owner of any such primaryobligation of the ability of the primarily obligor to make payment of suchprimary obligation against loss in respect thereof, or

 

### (d)           asan account party in respect of any letter of credit, letter of guaranty orbankers’ acceptance.

###  

“Continuing Directors” shall mean the directorsof the Parent Borrower on the Closing Date, as elected or appointed aftergiving effect to the Merger and the other transactions contemplated hereby, andeach other director, if, in each case, such other director’s nomination forelection to the board of directors of the Parent Borrower is approved by amajority of the then Continuing Directors, such other director is appointed,approved or recommended by a majority of the then Continuing Directors or suchother director receives the vote of the Permitted Investors or is designated orappointed by the Permitted Investors in his or her election by the stockholdersof the Parent Borrower.

 

“Control” shall mean the possession, directlyor indirectly, of the power to direct or cause the direction of the managementor policies of a Person, whether through the ownership of voting securities, bycontract or otherwise, and the terms “Controlling” and “Controlled”shall have meanings correlative thereto.

 

“Credit Event” shall have the meaning assignedto such term in Section 4.01.

 

“Credit Facilities” shall mean the revolvingcredit, swingline and letter of credit facilities, the dollar term loanfacility and the euro term loan facility, in each case contemplated by Section 2.01and the incremental facilities, if any, contemplated by Section 2.24.

 

“Credit Increase” shall have the meaningassigned to such term in Section 2.24(a).

 

“Current Assets” shall mean, at any time, (a) theconsolidated current assets (other than cash and Cash Equivalents) of theParent Borrower and its Restricted Subsidiaries that would, inaccordance with GAAP, be classified on a consolidated balance sheet of theParent Borrower and its Restricted Subsidiaries as current assets at such dateof determination, other than amounts related to current or deferred Taxes basedon income or profits (but excluding assets held for sale, loans (permitted) tothird parties, pension assets, deferred bank fees and derivative financial instruments)and (b) in the event that a Receivables Facility is accounted foroff-balance sheet, (x) gross accounts receivable comprising part of theassets subject to such Receivables Facility less (y) collections againstthe amounts sold pursuant to clause (x).

 

“CurrentLiabilities” shall mean, at any time, the consolidated currentliabilities of the Parent Borrower and its Restricted Subsidiaries that would,in accordance with GAAP, be classified on a *consolidated balance sheet*of the Parent Borrower and its Restricted Subsidiaries as current liabilitiesat such date of determination, but excluding, without duplication, (a) thecurrent portion of any long-term Indebtedness, (b) outstanding RevolvingLoans, L/C Exposure and Swingline Loans, (c) accruals ofconsolidated interest expense (excluding consolidated interest expense that isdue and unpaid), (d) accruals for current or deferred Taxes based onincome or profits, (e) accruals of

 

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anycosts or expenses related to restructuring reserves to the extent permitted tobe included in the calculation of EBITDA pursuant to clause (a)(v) thereofand (f) the current portion of pension liabilities.

 

“Default”shall mean any event or condition which constitutes an Event of Default orwhich upon notice, lapse of time or both would constitute an Event of Default.

 

“Defaulting Lender” shall mean any Lender that(a) has failed (which failure has not been cured) to fund any portion ofthe Revolving Loans, Term Loans or participations in the L/C Exposure requiredto be funded by it hereunder on the date required to be funded by it hereunder,(b) has otherwise failed (which failure has not been cured) to pay to theAdministrative Agent or any other Lender any other amount required to be paidby it hereunder on the date when due, unless the subject of a good faithdispute, (c) has notified the Administrative Agent and/or the ParentBorrower that it does not intend to comply with the obligations under Sections 2.02,2.22 or 2.23 or (d) is insolvent or is the subject of abankruptcy or insolvency proceeding.

 

“Designated Non-Cash Consideration” shall meanthe fair market value of non-cash consideration received by the Parent Borroweror a Restricted Subsidiary in connection with a Disposition that is sodesignated as Designated Non-Cash Consideration pursuant to an Officer’sCertificate, setting forth the basis of such valuation, executed by aResponsible Officer of the Parent Borrower, less the amount of cash or CashEquivalents received in connection with a subsequent sale of or collection onsuch Designated Non-Cash Consideration.

 

“Designated Preferred Stock” shall meanPreferred Stock of the Parent Borrower, a Restricted Subsidiary or any director indirect parent corporation thereof (in each case other than DisqualifiedStock) that is issued for cash (other than to the Parent Borrower or aRestricted Subsidiary or an employee stock ownership plan or trust establishedby the Parent Borrower or its Subsidiaries) and is so designated as DesignatedPreferred Stock, pursuant to an Officer’s Certificate executed by a ResponsibleOfficer of the Parent Borrower, on the issuance date thereof, the cash proceedsof which are excluded from the calculation set forth in the definition ofRestricted Payment Applicable Amount.

** **

“Disgorged Recovery” shall mean,  the portion, if any, of any payment or otherdistribution received by a Lender in satisfaction of Obligations of a Loan Partyto such Lender, that is required in any Insolvency Proceedings or otherwise tobe disgorged, turned over or otherwise paid to such Loan Party, such LoanParty’s estate or creditors of such Loan Party, whether because the transfer ofsuch payment or other property is avoided or otherwise, including, withoutlimitation, because it was determined to be a fraudulent or preferentialtransfer.

 

“Disposition” shall mean:

 

(a)           thesale, conveyance, transfer or other disposition, whether in a singletransaction or a series of related transactions, of property or assets(including by way of a Sale and Lease-Back Transaction) of the Parent Borroweror any of its Restricted Subsidiaries; or

 

(b)           theissuance or sale of Equity Interests of any Restricted Subsidiary, whether in asingle transaction or a series of related transactions.

 

“Disqualified Institutions” shall mean(a) those institutions set forth on Schedule 1.01(b) heretoor otherwise identified in writing to the Administrative Agent from time totime or (b) any Persons who are competitors of the Parent Borrower and itssubsidiaries as identified to the Administrative Agent in writing from time totime.

 

“Disqualified Stock” shall mean, with respectto any Person, any Capital Stock of such Person which, by its terms, or by theterms of any security into which it is convertible or for which it is putableor exchangeable, or upon the happening of any event, matures or is mandatorilyredeemable (other than solely for Capital Stock which is not Disqualified Stock)pursuant to a sinking fund obligation or otherwise, or is redeemable at theoption of the holder thereof (in each case, other than solely as a result of achange of control or asset sale, so long as any rights of the holders thereofupon the occurrence of a change of control or asset sale shall be subject tothe occurrence of the Termination Date or such repurchase or redemption isotherwise permitted by this Agreement (including as a result

 

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of awaiver or amendment hereunder)), in whole or in part, in each case prior to thedate 91 days after the Term Loan Maturity Date; provided,**however,**that if suchCapital Stock is issued to any plan for the benefit of employees of the ParentBorrower or its subsidiaries or by any such plan to such employees, suchCapital Stock shall not constitute Disqualified Stock solely because it may berequired to be repurchased in order to satisfy applicable statutory orregulatory obligations.

 

“Dollar Equivalent” shall mean, 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 Issuing Bank atsuch time on the basis of the rate (as determined in accordance with Section 1.09as of the date of the relevant determination) for the purchase of dollars withsuch Alternative Currency.

 

“dollars” or “$” shall mean lawful moneyof the United States of America.

 

“Dollar Term Loan” shall mean the dollar termloans made by the Lenders to the Parent Borrower pursuant to Section 2.01(a).

 

“Dollar Term Loan Borrowing” shall mean aBorrowing comprised of Dollar Term Loans.

 

“Dollar Term Loan Commitment” shall mean, withrespect to each Lender, the commitment of such Lender to make Dollar Term Loanshereunder as set forth on Schedule 2.01, or in the Assignment andAcceptance pursuant to which such Lender assumed its Dollar Term LoanCommitment or Dollar Term Loans, as applicable, as the same may be(a) reduced from time to time pursuant to Section 2.09 and(b) reduced or increased from time to time pursuant to assignments by orto such Lender pursuant to Section 9.04.

 

“Dollar Term Loan Lender” shall mean a Lenderwith a Dollar Term Loan Commitment or an outstanding Dollar Term Loan.

 

“Domestic Obligations” shall mean the unpaidprincipal of and interest on the Loans and all other obligations andliabilities of the Parent Borrower or any other Loan Party (other than aForeign Subsidiary Borrower) to the Administrative Agent or any Lender, whetherdirect or indirect, absolute or contingent, due or to become due, or nowexisting or hereafter incurred, which may arise under, out of, or in connectionwith, this Agreement, any other Loan Document and the Letters of Credit andwhether on account of principal, interest, reimbursement obligations, fees, indemnities,costs, expenses (including all fees, charges and disbursements of counsel tothe Administrative Agent or any Lender that are required to be paid pursuanthereto or any other Loan Document and including interest accruing after thematurity of the Loans and L/C Disbursements and interest accruing after thefiling of any petition in bankruptcy, or the commencement of any insolvency,reorganization or like proceeding, relating to a Loan Party, whether or not aclaim for post-filing or post-petition interest is allowed in such proceeding)or otherwise.

 

“Domestic Subsidiaries” shall mean, withrespect to any Person, any subsidiary of such Person other than a ForeignSubsidiary.

 

“EBITDA” shall mean, with respect to any Person for anyperiod, the Consolidated Net Income of such Person and its RestrictedSubsidiaries for such period

 

(a)           increased(without duplication) by:

 

(i)            provision for taxes based on incomeor profits or capital (or any alternative tax in lieu thereof), including,without limitation, foreign, state, franchise and similar taxes and foreignwithholding taxes of such Person and such subsidiaries paid or accrued duringsuch period deducted (and not added back) in computing Consolidated Net Income,including payments made pursuant to any tax sharing agreements or arrangementsamong the Parent Borrower, its Restricted Subsidiaries and any direct orindirect parent company of the Parent Borrower (so long as such tax sharingpayments are attributable to the operations of the Parent Borrower and itsRestricted Subsidiaries); plus

 

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(ii)           Fixed Charges of such Person and suchsubsidiaries for such period to the extent the same was deducted (and not addedback) in calculating such Consolidated Net Income; plus

 

(iii)          Consolidated Depreciation andAmortization Expense of such Person and such subsidiaries for such period tothe extent the same were deducted (and not added back) in computingConsolidated Net Income; plus

 

(iv)          any fees, costs, commissions, expensesor other charges (other than Consolidated Depreciation or Amortization Expensebut including the effects of purchase accounting adjustments) related to theTransactions, any issuance of Equity Interests, Investment, acquisition, disposition,dividend or similar Restricted Payment, recapitalization or the incurrence,repayment, amendment or modification of Indebtedness permitted to be incurredunder this Agreement (including a refinancing thereof) and any changes ornon-recurring merger costs incurred during such period (in each case whether ornot successful), including (w) any expensing of bridge, commitment orother financing fees, (x) such fees, costs, commissions, expenses or othercharges related to the offering of the New Senior Notes, the New MezzanineNotes and the Credit Facilities, (y) any such fees, costs (including callpremium), commissions, expenses or other charges related to any amendment orother modification of the Existing Notes, the New Senior Notes, the NewMezzanine Notes and the Credit Facilities and (z) commissions, discounts,yield and other fees and charges (including any interest expense) related toany Receivables Facility, and, in each case, deducted (and not added back) incomputing Consolidated Net Income; plus

 

(v)           the amount of any businessoptimization expense and restructuring charge or reserve deducted (and notadded back) in such period in computing Consolidated Net Income, including anyrestructuring costs incurred in connection with acquisitions after the ClosingDate, costs related to the closure and/or consolidation of facilities,retention charges, contract termination costs, future lease commitments,systems establishment costs, conversion costs and excess pension charges,consulting fees and any one-time expense relating to enhanced accounting function,or costs associated with becoming a standalone entity or public companyincurred in connection with any of the foregoing; provided that theaggregate amount of expenses added pursuant to this clause (v) shallnot exceed an amount equal to 10% of EBITDA of the Parent Borrower for theperiod of four consecutive fiscal quarters most recently ended prior to thedetermination date (without giving effect to any adjustments pursuant to this clause(v) or clause (xii) below); plus

 

(vi)          any other non-cash charges, expensesor losses including any write offs or write downs and any non-cash expenserelating to the vesting of warrants, reducing Consolidated Net Income for suchperiod (provided that if any such non-cash charges represent an accrualor reserve for potential cash items in any future period, the cash payment inrespect thereof in such future period shall be subtracted from EBITDA in suchfuture period to the extent paid, and excluding amortization of a prepaid cashitem that was paid in a prior period); plus

 

(vii)         the amount of any minority interestexpense consisting of subsidiary income attributable to minority equityinterests of third parties in any non-Wholly-Owned Subsidiary deducted (and notadded back) in such period in calculating Consolidated Net Income; plus

 

(viii)        other than for the purpose ofdetermining the amount available for Restricted Payments under paragraph(b) of the definition of Restricted Payment Applicable Amount, theamount of management, monitoring, consulting, transaction and advisory fees andrelated expenses paid in such period to the Sponsor to the extent otherwise permittedunder Section 6.06 deducted (and not added back) in computingConsolidated Net Income; plus

 

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(ix)           the amount of loss on sale ofreceivables and related assets to the Receivables Subsidiary in connection witha Receivables Facility deducted (and not added back) in computing ConsolidatedNet Income; plus

 

(x)            (A) non-cash compensationexpense recorded from grants of stock appreciation or similar rights, stockoptions, restricted stock or other rights and (B) other costs or expensededucted (and not added back) in computing Consolidated Net Income pursuant toany management equity plan or stock option plan or any other management oremployee benefit plan or agreement or any stock subscription or shareholderagreement, to the extent that such cost or expenses are funded with cashproceeds contributed to the capital of the Parent Borrower or net cash proceedsof an issuance of Equity Interest of the Parent Borrower (other thanDisqualified Stock) solely to the extent that such net cash proceeds areexcluded from the calculation set forth in the definition of Restricted PaymentApplicable Amount; plus

 

(xi)           for the year ended December 31,2006, $11,500,000 relating to prior cost-reduction actions, acquisitions andsigned agreements, recorded on a quarterly basis; plus

 

(xii)          the amount of net cost savings andacquisition synergies projected by the Parent Borrower in good faith to berealized during such period (calculated on a pro forma basis as though suchcost savings had been realized on the first day of such period) as a result ofactions taken or to be taken in connection with the Transactions or anyacquisition or disposition by the Parent Borrower or any Restricted Subsidiary,net of the amount of actual benefits realized during such period that areotherwise included in the calculation of EBITDA from such actions; providedthat (A) such cost savings are reasonably identifiable and factuallysupportable and (B) such actions are taken within 18 months after theClosing Date or the date of such acquisition or disposition and (C) theaggregate amount of cost savings added pursuant to this clause (xii) shall notexceed an amount equal to the greater of (x) $35,000,000 and (y) 10% of EBITDAof the Parent Borrower for the period of four consecutive fiscal quarters mostrecently ended prior to the determination date (without giving effect to anyadjustments pursuant to clause (v) above or this clause (xii));plus

 

(xiii)         any net after-tax non-recurring,extraordinary or unusual gains or losses (less all fees and expenses relatingthereto) or expenses; plus

 

(xiv)        to the extent covered by insurance andactually reimbursed or otherwise paid, or, so long as the Parent Borrower hasmade a determination that there exists reasonable evidence that such amountwill in fact be reimbursed or otherwise paid by the insurer and only to theextent that such amount is (A) not denied by the applicable carrier inwriting within 180 days and (B) in fact reimbursed or otherwise paidwithin 365 days of the date of such evidence (with a deduction for any amountso added back to the extent not so reimbursed or otherwise paid within such 365days), expenses with respect to liability or casualty events and expenses orlosses relating to business interruption; plus

 

(xv)         expenses to the extent covered bycontractual indemnification or refunding provisions in favor of the ParentBorrower or a Restricted Subsidiary and actually paid or refunded, or, so longas the Parent Borrower has made a determination that there exists reasonableevidence that such amount will in fact be paid or refunded by the indemnifyingparty or other obligor and only to the extent that such amount is (A) notdenied by the applicable indemnifying party or obligor in writing within 90days and (B) in fact reimbursed within 180 days of the date of suchevidence (with a deduction for any amount so added back to the extent not soreimbursed within such 180 days); plus

 

(xvi)        any non-cash increase in expenses(A) resulting from the reevaluation of inventory (including any impact ofchanges to inventory valuation policy methods including

 

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changes in capitalization of variances) or(B) due to purchase accounting associated with the Transactions; plus

 

(xvii)       the amount of loss from the earlyextinguishment of Indebtedness or Hedging Obligations or other derivative instruments

 

(b)           decreasedby (without duplication) (i) non-cash gains increasing Consolidated Net Incomeof such Person and such subsidiaries for such period, excluding any non-cashgains to the extent they represent the reversal of an accrual or reserve for apotential cash item that reduced EBITDA in any prior period and (ii) theminority interest income consisting of subsidiary losses attributable tominority equity interests of third parties in any non-Wholly-Owned Subsidiaryto the extent such minority interest income is included in Consolidated NetIncome; and

 

(c)           increasedor decreased by (without duplication):

 

(i)            any net gain or loss resulting insuch period from Hedging Obligations and the application of Statement ofFinancial Accounting Standards No. 133 and International AccountingStandards No. 39 and their respective related pronouncements and interpretations;plus or minus, as applicable,

 

(ii)           any net gain or loss included incalculating Consolidated Net Income resulting in such period from currencytranslation gains or losses related to currency remeasurements of indebtedness(including any net loss or gain resulting from hedge agreements for currencyexchange risk), plus or minus, as applicable,

 

(iii)           the cumulative effect of a change inaccounting principles during such period, plus or minus, as applicable,

 

(iv)           any net gain or loss from disposed ordiscontinued operations and any net gains or losses on disposal of disposed,abandoned or discontinued operations, plus or minus, as applicable,

 

(v)            the amount of gains or losses (lessall accrued fees and expenses relating thereto) attributable to assetdispositions other than in the ordinary course of business, plus or minus, asapplicable,

 

(vi)           accruals and reserves that areestablished within twelve months after the Closing Date that are so required tobe established as a result of the Transactions in accordance with GAAP.

 

“ECF Percentage” shall mean, with respect toany fiscal year, 50%; provided, however, if the Total NetLeverage Ratio as of the end of a fiscal year is (a) less than or equal to5.50 to 1.00 but greater than 4.00 to 1.00, then the ECF Percentage withrespect to such fiscal year shall mean 25% and (b) less than or equal to4.00 to 1.00, then the ECF Percentage with respect to such fiscal year shallmean 0%.

 

“Eligible Assignee” shall have the meaningassigned to such term in Section 9.04(b).

 

“EMU” shall mean economic and monetary union ascontemplated in the Treaty on European Union.

 

“Environmental Laws” shall mean all applicableFederal, state, local and foreign laws (including common law), treaties,regulations, rules, ordinances, codes, decrees, judgments, directives andorders (including consent orders), having the force and effect of law, in eachcase, relating to protection of the environment or natural resources, or tohuman health and safety as it relates to environmental protection.

 

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“Equity Interests” shall mean Capital Stock andall warrants, options or other rights to acquire Capital Stock, but excludingany debt security that is convertible into, or exchangeable for, Capital Stock.

 

“Equity Investment” shall have the meaningassigned to such term in the recitals.

 

“Equity Offering” shall mean any public orprivate sale of common stock or Preferred Stock of the Parent Borrower or of adirect or indirect parent of the Parent Borrower (excluding DisqualifiedStock), other than:

 

(a)           publicofferings with respect to any such Person’s common stock registered onForm S-4 or S-8;

 

(b)           issuancesto the Parent Borrower or any subsidiary of the Parent Borrower; and

 

(c)           anysuch public or private sale that constitutes an Excluded Contribution.

 

“ERISA” shall mean the Employee RetirementIncome Security Act of 1974, as the same may be amended from time to time.

 

“ERISA Affiliate” shall mean any trade orbusiness (whether or not incorporated) that is under common control with anyLoan Party under Section 414 of the Code or Section 4001 of ERISA.

 

“ERISA Event” shall mean (a) any“reportable event”, as defined in Section 4043 of ERISA or the regulationsissued thereunder, but excluding any event for which the 30-day notice periodis waived, with respect to a Pension Plan, (b) any “accumulated fundingdeficiency” (as defined in Section 412 of the Code or Section 302 ofERISA), whether or not waived, or the failure to satisfy any statutory fundingrequirement that results in a Lien, with respect to a Pension Plan,(c) the incurrence by any Loan Party or an ERISA Affiliate of anyliability under Title IV of ERISA with respect to the termination of anyPension Plan or the withdrawal or partial withdrawal of any Loan Party or anERISA Affiliate from any Pension Plan or Multiemployer Plan, (d) thefiling or a notice of intent to terminate, the treatment of a Pension Planamendment as a termination under Sections 4041 or 4041A of ERISA, or the receiptby any Loan Party or any ERISA Affiliate from the PBGC or a plan administratorof any notice of intent to terminate any Pension Plan or Multiemployer Plan orto appoint a trustee to administer any Pension Plan, (e) the adoption ofany amendment to a Pension Plan that would require the provision of securitypursuant to the Code, ERISA or other applicable law, (f) the receipt byany Loan Party or any ERISA Affiliate of any notice concerning statutoryliability arising from the withdrawal or partial withdrawal of any Loan Partyor any ERISA Affiliate from a Multiemployer Plan or a determination that aMultiemployer Plan is, or is expected to be, insolvent or in reorganization,within the meaning of Title IV of ERISA, (g) the occurrence of a“prohibited transaction” (within the meaning of Section 4975 of the Code)with respect to which the Parent Borrower or any Restricted Subsidiary is a“disqualified person” (within the meaning of Section 4975 of the Code) orwith respect to which the Parent Borrower or any Restricted Subsidiary couldreasonably be expected to have any liability, (h) any event or conditionwhich constitutes grounds under Section 4042 of ERISA for the terminationof any Pension Plan or Multiemployer Plan or the appointment of a trustee to administerany Pension Plan or (i) any other extraordinary event or condition with respectto a Pension Plan or Multiemployer Plan which could reasonably be expected toresult in a Lien or any acceleration of any statutory requirement to fund allor a substantial portion of the unfunded accrued benefit liabilities of suchplan.

 

“EURIBOR Rate” shall mean, with respect to anyEurodollar Borrowing of Euro Term Loans for any Interest Period, the rate perannum determinedby the Banking Federation of the European Union for the relevant InterestPeriod, in each case displayed on the appropriate page of the Teleratescreen on the date that is 2 Business Days prior to the commencement ofsuch Interest Period for a period equal to such Interest Period; providedthat to the extent that an interest rate is not ascertainable pursuant to theforegoing provisions of this definition, the “EURIBOR Rate” shall be the arithmetic mean of the rates(rounded upwards to four decimal places) as supplied to the AdministrativeAgent at its request quoted by three major banks selected by the AdministrativeAgent to leading banks in the European interbank market, at or about11 a.m. Brussels time on the date that is 2 Business Days prior tothe beginning of such Interest Period.

 

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“euro” and “€” shall mean the singlecurrency of participating member states of the EMU.

 

“Eurodollar”, when used in reference to anyLoan or Borrowing, refers to whether such Loan, or the Loans comprising suchBorrowing, are bearing interest at a rate determined by reference to theAdjusted LIBO Rate.

 

“Euro Term Loan” shall mean the euro term loansmade by the Lenders to the Parent Borrower pursuant to Section 2.01(b).

 

“Euro Term Loan Borrowing” shall mean aBorrowing comprised of Euro Term Loans.

 

“Euro Term Loan Commitment” shall mean, withrespect to each Lender, the commitment of such Lender to make Euro Term Loanshereunder as set forth on Schedule 2.01, or in the Assignment andAcceptance pursuant to which such Lender assumed its Euro Term Loan Commitmentor Euro Term Loans, as applicable, as the same may be (a) reduced fromtime to time pursuant to Section 2.09 and (b) reduced orincreased from time to time pursuant to assignments by or to such Lenderpursuant to Section 9.04.

 

“Euro Term Loan Lender” shall mean a Lenderwith a Euro Term Loan Commitment or an outstanding Euro Term Loan.

 

“Event of Default” shall have the meaningassigned to such term in Article VII.

 

“Excess Cash Flow”shall mean, for any fiscal year of the Parent Borrower, an amount, derived solelyfrom the U.S. operations of the Parent Borrower and its domestic subsidiaries,repayments (net of all Taxes payable upon the repatriation of any such amounts)under the Existing Intercompany Debt (excluding repayments of the proceeds ofwhich are used to repay Revolving Loans made on the Closing Date) and dividends(net of all Taxes payable upon the repatriation of any such amounts) fromForeign Subsidiaries, equal to:

 

(a)           the sum, without duplication, of

 

(i)            EBITDA;

 

(ii)           reductions toworking capital of the Parent Borrower and its Restricted Subsidiaries (i.e.,the decrease, if any, in Current Assets minus Current Liabilities from thebeginning to the end of such fiscal year), but excluding any such reductions inworking capital arising from the acquisition of any Person by the ParentBorrower and/or the Restricted Subsidiaries;

 

(iii)          foreign currencytranslation gains received in cash related to currency remeasurements ofindebtedness (including any net cash gain resulting from hedge agreements forcurrency exchange risk), to the extent not otherwise included in calculatingEBITDA;

 

(iv)          net cash gainsresulting in such period from Hedging Obligations and the application of Statementof Financial Accounting Standards No. 133 and International AccountingStandards No. 39 and their respective pronouncements and interpretations;

 

(v)           extraordinary,unusual or nonrecurring cash gains (other than gains on Dispositions), to theextent not otherwise included in calculating EBITDA; and

 

(vi)          to the extent nototherwise included in calculating EBITDA, cash gains from any sale or dispositionoutside the ordinary course of business;

 

minus

 

(b)           the sum, without duplication, of

 

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(i)            the amount of anyTaxes, including Taxes based on income, profits or capital, (or alternative taxin lieu thereof), foreign, state, franchise and similar Taxes, foreignwithholding Taxes and foreign unreimbursed value added Taxes (to the extentadded in calculating EBITDA), and including penalties and interest on any ofthe foregoing, in each case, paid in cash by the Parent Borrower and itsRestricted Subsidiaries (to the extent not otherwise deducted in calculatingEBITDA), including payments made pursuant to any tax sharing agreements orarrangements among the Parent Borrower, its Restricted Subsidiaries and anydirect or indirect parent company of the Parent Borrower (so long as such taxsharing payments are attributable to the operations of the Parent Borrower andits Restricted Subsidiaries);

 

(ii)           ConsolidatedInterest Expense, to the extent payable in cash and not otherwise deducted incalculating EBITDA;

 

(iii)          foreign currencytranslation losses payable in cash related to currency remeasurements ofindebtedness (including any net cash loss resulting from hedge agreements forcurrency risk), to the extent not otherwise deducted in calculating EBITDA;

** **

(iv)          without duplicationof amounts deducted pursuant to clause (xviii) below in a prior fiscalyear, Capital Expenditures of the Parent Borrower and its subsidiaries made incash, to the extent financed with Internally Generated Cash;

 

(v)           repayments oflong-term Indebtedness (including (A) the principal component ofCapitalized Lease Obligations and (B) the amount of repayment of Loanspursuant to Section 2.11 and, to the extent made with the Net CashProceeds of a Prepayment Asset Sale that resulted in an increase toConsolidated Net Income and not in excess of the amount of such increase, Section 2.13(b),but excluding all other prepayments of the Loans), made by the Parent Borrowerand its Restricted Subsidiaries, but only to the extent that such repayments(x) by their terms cannot be reborrowed or redrawn and (y) are notfinanced with the proceeds of long-term Indebtedness (other than revolvingIndebtedness);

 

(vi)          additions to workingcapital (i.e., the increase, if any, in Current Assets minus CurrentLiabilities from the beginning to the end of such fiscal year), but excludingany such additions to working capital arising from the acquisition of anyPerson by the Parent Borrower and/or the Restricted Subsidiaries;

 

(vii)         without duplicationof amounts deducted pursuant to clause (xviii) below in a prior fiscalyear, the amount of Investments made by the Parent Borrower and its RestrictedSubsidiaries pursuant to Section 6.03 (other than PermittedInvestments in (x) Cash Equivalents and Government Securities and(y) the Parent Borrower or any of its Restricted Subsidiaries), in cash, to the extent suchInvestments were financed with Internally Generated Cash;

 

(viii)        letter of creditfees paid in cash, to the extent not otherwise deducted in calculating EBITDA;

 

(ix)           extraordinary,unusual or nonrecurring cash charges, to the extent not otherwise deducted incalculating EBITDA;

 

(x)            cash fees andexpenses incurred in connection with the Transactions, any Investment permittedunder Section 6.03, any disposition not prohibited under Section 6.05,any recapitalization, any Equity Offering, the issuance of any Indebtedness orany exchange, refinancing or other early extinguishment of Indebtednesspermitted by this Agreement (in each case, whether or not consummated);

 

(xi)           cash charges,expenses or losses added to EBITDA pursuant to clauses (a)(v), (ix),(x), (xi) and (xii) thereof;

 

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(xii)          the amount of management, monitoring,consulting, transactional and advisory fees and related expenses paid to theSponsor permitted by Section 6.06, to the extent not otherwise deducted incalculating EBITDA;

 

(xiii)         the amount ofRestricted Payments made by the Parent Borrower to the extent permitted by clauses(iv), (xv) (but, with respect to Section 6.03(b)(xv)(H),only to the extent such amounts would have been permitted to be deducted under clause (b) ofthis definition if the Parent Borrower or Restricted Subsidiary had insteadmade such Investment) and (xx) of Section 6.03(b) tothe extent that such Restricted Payments were financed with InternallyGenerated Cash;

 

(xiv)        cash expenditures inrespect of Hedging Obligations (including net cash losses resulting in suchperiod from Hedging Obligations and the application of Statement of FinancialAccounting Standards No. 133 and International Accounting StandardsNo. 39 and their respective pronouncements and interpretations), to theextent not otherwise deducted in calculating EBITDA;

 

(xv)         to the extent addedto Consolidated Net Income, cash losses from any sale or disposition outsidethe ordinary course of business;

 

(xvi)        cash payments by theParent Borrower and its Restricted Subsidiaries in respect of long-termliabilities (other than Indebtedness) of the Parent Borrower and its RestrictedSubsidiaries;

 

(xvii)       the aggregate amountof expenditures actually made by the Parent Borrower and its RestrictedSubsidiaries in cash (including expenditures for the payment of financing fees)to the extent that such expenditures are not expensed; and

 

(xviii)      without duplicationof amounts deducted from Excess Cash Flow in a prior fiscal year, the aggregateconsideration required to be paid in cash by the Parent Borrower and itsRestricted Subsidiaries pursuant to binding contracts (the “ContractConsideration”) entered into prior to or during such fiscal year relatingto Investments permitted under Section 6.03(other thanInvestments in (x) Cash Equivalents and Government Securities and (y) theParent Borrower or any of its Restricted Subsidiaries) or Capital Expenditures to beconsummated or made during the period of 4 consecutive fiscal quarters of theParent Borrower following the end of such fiscal year providedthat to the extent the aggregate amount of Internally Generated Cash actuallyutilized to finance such Capital Expenditures or Investments during such periodof 4 consecutive fiscal quarters is less than the Contract Consideration, theamount of such shortfall shall be added to the calculation of Excess Cash Flowat the end of such period of 4 consecutive fiscal quarters.

 

“ExcludedContributions” shall mean net cash proceeds, marketable securities orQualified Proceeds received by or contributed to the Parent Borrower from,

 

(a)           contributionsto its common equity capital, and

 

(b)           thesale (other than to the Parent Borrower or a Subsidiary of the Parent Borroweror to any management equity plan or stock option plan or any other managementor employee benefit plan or agreement of the Parent Borrower or a Subsidiary ofthe Parent Borrower) of Capital Stock (other than Disqualified Stock and DesignatedPreferred Stock) of the Parent Borrower,

 

in each case, designated as Excluded Contributionspursuant to an Officer’s Certificate on the date such capital contributions aremade or the date such Equity Interests are sold, as the case may be, which areexcluded from the calculation of the Restricted Payment Applicable Amount.

 

“Excluded Parties”shall have the meaning assigned to such term in Section 9.16.

 

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 “Excluded Subsidiary” shall mean(a) any subsidiary that is not a Wholly-Owned Subsidiary, (b) any ImmaterialSubsidiary, (c) any subsidiary that is prohibited by applicable law orcontractual obligations from guaranteeing the Obligations, (d) anyRestricted Subsidiary acquired pursuant to an acquisition permitted by Section 6.03financed with secured Indebtedness permitted to be incurred pursuant to Section 6.01(b)(xi)(but only to the extent such Indebtedness is otherwise permitted to be securedunder clause (ff) of the definition of Permitted Liens) and Section 6.01(b)(xviii)and each Restricted Subsidiary thereof that guarantees such Indebtedness; providedthat each such Restricted Subsidiary shall cease to be an Excluded Subsidiaryunder this clause (d) if such secured Indebtedness is repaid orbecomes unsecured or if such Restricted Subsidiary ceases to guarantee suchsecured Indebtedness, as applicable, (e) any Unrestricted Subsidiary,(f) any direct or indirect Domestic Subsidiary of a direct or indirectForeign Subsidiary, (g) any captive insurance subsidiary, (h) anynot-for-profit subsidiary, (i) any other subsidiary with respect to whichin the reasonable judgment of the Administrative Agent and the Parent Borrower,the cost or other consequences of providing a guarantee of the Obligationsshall be excessive in view of the benefits to be obtained by the Lenderstherefrom (it being agreed that the cost and other consequences of a ForeignSubsidiary providing a guarantee are excessive in view of the benefits), (j)any Receivables Subsidiary, (k) any subsidiary that is a special purposeentity, (l) CDRV Holdings, Inc. and (m) CDRV Investment HoldingsCorporation.

 

“Excluded Taxes” shall mean, with respect tothe Administrative Agent, any Lender, the Issuing Bank or any other recipientof any payment to be made by or on account of any obligation of the Borrowershereunder, (a) income Taxes imposed on (or measured by) its income andfranchise (and similar) Taxes imposed on it in lieu of income Taxes pursuant tothe laws of the United States of America, or by the jurisdiction in which suchrecipient is organized or in which the principal office or applicable lendingoffice of such recipient is located (or any political subdivision thereof),(b) any branch profits Taxes imposed by the United States of America orany similar Tax imposed by any other jurisdiction described in clause (a) aboveand (c) in the case of a recipient (other than an assignee pursuant to arequest by the Parent Borrower under Section 2.21(a)), anywithholding Tax that (i) is imposed on amounts payable to such recipientat the time such recipient becomes a party to this Agreement (or designates anew lending office) or (ii) is attributable to such recipient’s failure tocomply with Section 2.20(e), (f) or (g), asapplicable, except in the case of clause (i) to the extentthat such recipient (or its assignor, if any) was entitled, at the time ofdesignation of a new lending office (or assignment), to receive additionalamounts from the Borrowers with respect to such withholding tax pursuant to Section 2.20(a).

 

“Existing Debt” shall mean Indebtedness (otherthan letters of credit which constitute Existing Letters of Credit) outstandingunder that certain Credit Agreement dated as of April 7, 2004, as amended,by and among VWR International, Inc. and the foreign subsidiary borrowersfrom time to time party thereto, as borrowers thereunder, the lenders from timeto time party thereto, Deutsche Bank AG, New York Branch, as administrativeagent and L/C issuer, and the other agents party thereto.

 

“Existing Intercompany Debt” shall mean theintercompany Indebtedness among the Company and its Foreign Subsidiariesoutstanding on the Closing Date and identified as such on Schedule 6.01.

 

“Existing Letters of Credit” shall mean allletters of credit outstanding on the Closing Date as more fully described on Schedule 1.01(c).

** **

“Existing Notes” shall mean VWR International, Inc.’s67⁄8% Senior Notes due 2012, VWR International, Inc.’s 8% SeniorSubordinated Notes due 2014, CDRV Investment Holdings Corporation’s 95⁄8%Senior Discount Notes due 2015 and the Parent Borrower’s Senior Floating RateNotes due 2011.

 

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

 

“Fee Letter” shall mean the Fee Letter, datedthe Closing Date, among the Parent Borrower and the Arrangers.

 

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“Fees” shall mean the Commitment Fee, theAdministration Fee, the L/C Participation Fee and the Issuing Bank Fee.

 

“Financial Officer” of any Person shall meanthe chief executive officer, the president, chief financial officer, principalaccounting officer, treasurer, assistant treasurer or controller of suchPerson.

 

“Fixed Charges” shall mean, with respect to anyPerson for any period, the sum, without duplication, of:

 

(a)           ConsolidatedInterest Expense of such Person and Restricted Subsidiaries for such period;plus

 

(b)           allcash dividends or other distributions paid to any Person other than such Personor any such Subsidiary (excluding items eliminated in consolidation) on anyseries of Preferred Stock of the Parent Borrower or a Restricted Subsidiaryduring such period; plus

 

(c)           allcash dividends or other distributions paid to any Person other than such Personor any such Subsidiary (excluding items eliminated in consolidation) on anyseries of Disqualified Stock of the Parent Borrower or a Restricted Subsidiaryduring such period.

 

“Foreign Lender” shall mean any Lender orIssuing Bank that is organized under the laws of a jurisdiction other than thatin which the Parent Borrower is located, unless such Lender or Issuing Bank isa disregarded entity for U.S. federal income tax purposes owned by a non-disregardedU.S. entity.  For purposes of thisdefinition, the United States of America, each State thereof and the Districtof Columbia shall be deemed to constitute a single jurisdiction.

 

“Foreign Obligations” shall mean the unpaidprincipal of and interest on the Loans and all other obligations andliabilities of any Foreign Subsidiary Borrower to the Administrative Agent orany Lender, whether direct or indirect, absolute or contingent, due or to becomedue, or now existing or hereafter incurred, which may arise under, out of, orin connection with, this Agreement, any other Loan Document and the Letters ofCredit and whether on account of principal, interest, reimbursementobligations, fees, indemnities, costs, expenses (including all fees, charges anddisbursements of counsel to the Administrative Agent or any Lender that arerequired to be paid pursuant hereto or any other Loan Document and includinginterest accruing after the maturity of the Loans and L/C Disbursements andinterest accruing after the filing of any petition in bankruptcy, or thecommencement of any insolvency, reorganization or like proceeding, relating toa Loan Party, whether or not a claim for post-filing or post-petition interestis allowed in such proceeding) or otherwise.

 

“Foreign Plan” shall mean any pension plan,fund or other similar program (other than a government-sponsored plan) that(a) primarily covers employees of any Loan Party and/or any of itsRestricted Subsidiaries who are employed outside of the United States and(b) is subject to any statutory funding requirement as to which thefailure to satisfy results in a Lien or other statutory requirement permittingany governmental authority to accelerate the obligation of the Parent Borroweror any Restricted Subsidiary to fund all or a substantial portion of the unfunded,accrued benefit liabilities of such plan.

 

“Foreign Subsidiary” shall mean, with respectto any Person, (a) any subsidiary of such Person that is organized andexisting under the laws of any jurisdiction outside the United States ofAmerica or (b) any subsidiary of such Person that has no material assetsother than the Capital Stock of one or more subsidiaries described in clause(a) and other assets relating to an ownership interest in any such CapitalStock or subsidiaries.

 

“Foreign Subsidiary Borrower” shall mean anyForeign Subsidiary which is listed as a Foreign Subsidiary Borrower on Schedule B,as such schedule may be amended from time to time pursuant to Section 9.08(g) (including,without limitation, the delivery of the documents required by Section 9.08(g));provided that, with respect to each such listed Foreign Subsidiary, itsstatus as a Foreign Subsidiary Borrower hereunder shall not be effective untilsuch Foreign Subsidiary and its subsidiaries shall have become a Grantor, tothe extent applicable, under and as defined in the Guarantee and CollateralAgreement or shall otherwise have entered into collateral and securitydocuments reasonably satisfactory to the Administrative Agent and providing, tothe extent reasonably

 

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practicableunder relevant law, substantially the equivalent of the lien and securityinterests contemplated to be provided by Grantors under the Guarantee andCollateral Agreement.

 

“Foreign Subsidiary Borrower Sublimit” shallhave the meaning assigned to such term in Section 2.01(c).

 

 “Foreign Subsidiary Reorganization”shall mean the reorganization ofthe Parent Borrower’s Foreign Subsidiaries (including the creation of a newholding company subsidiary to hold substantially all of the capital stock of theParent Borrower’s Foreign Subsidiaries).

 

“GAAP” shall mean United States generallyaccepted accounting principles.

 

“Government Securities”****shallmean securities that are:

 

(a)           directobligations of the United States of America for the timely payment of which itsfull faith and credit is pledged; or

 

(b)           obligationsof a Person controlled or supervised by and acting as an agency or instrumentalityof the United States of America the timely payment of which is unconditionallyguaranteed as a full faith and credit obligation by the United States ofAmerica, which, in either case, are not callable or redeemable at the option ofthe issuer thereof, and shall also include a depository receipt issued by abank (as defined in Section 3(a)(2) of the Securities Act), ascustodian with respect to any such Government Securities or a specific paymentof principal of or interest on any such Government Securities held by such custodianfor the account of the holder of such depository receipt; provided that(except as required by law) such custodian is not authorized to make anydeduction from the amount payable to the holder of such depository receipt fromany amount received by the custodian in respect of the Government Securities orthe specific payment of principal of or interest on the Government Securitiesevidenced by such depository receipt.

 

“Governmental Authority” shall mean thegovernment of the United States of America or any other nation, any politicalsubdivision thereof, whether state or local, and any agency, authority,instrumentality, regulatory body, court, central bank or other entityexercising executive, legislative, judicial, taxing, regulatory oradministrative powers or functions of or pertaining to government.

 

“Granting Lender” shall have the meaningassigned to such term in Section 9.04(i).

 

“Guarantee and Collateral Agreement” shall meanthe Guarantee and Collateral Agreement, substantially in the form of Exhibit D,among the Loan Parties party thereto and the Collateral Agent for the benefit ofthe Secured Parties.

 

“Guarantors” shall mean Intermediate Holdco andthe Subsidiary Guarantors.

 

“Hazardous Materials” shall mean any material,substance or waste classified, characterized or regulated as “hazardous,”“toxic,” “pollutant” or “contaminant” under any Environmental Laws.

 

“Hedging Obligations” shall mean, with respectto any Person, the obligations of such Person under any interest rate swapagreement, interest rate cap agreement, interest rate collar agreement,commodity swap agreement, commodity cap agreement, commodity collar agreement,foreign exchange contract, currency swap agreement or similar agreementproviding for the transfer of mitigation of interest rate or currency riskseither generally or under specific contingencies.

 

“Holdings” shall have the meaning assigned tosuch term in the recitals and shall include any successors to such Person orassigns.

 

“Immaterial Subsidiary” shall mean allRestricted Subsidiaries of the Parent Borrower (other than any ForeignSubsidiary Borrower) for which (a) (i) the assets of such RestrictedSubsidiary constitute less than 2.5% of

 

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thetotal assets of the Parent Borrower and its Restricted Subsidiaries on aconsolidated basis and (ii) the EBITDA of such Restricted Subsidiaryaccounts for less than 2.5% of the EBITDA of the Parent Borrower and itsRestricted Subsidiaries on a consolidated basis and (b) thereafter,(i) the assets of all relevant Restricted Subsidiaries constitute 5.0% orless than the total assets of the Parent Borrower and its RestrictedSubsidiaries on a consolidated basis, and (ii) the EBITDA of all relevantRestricted Subsidiaries accounts for less than 5.0% of the EBITDA of the ParentBorrower and its Restricted Subsidiaries on a consolidated basis.  The Immaterial Subsidiaries as of the ClosingDate are listed on Schedule 1.01(d).

 

“IncrementalAmendment” shall have the meaning assigned to such term in Section 2.24(b).

 

“Incremental Facility Closing Date” shall havethe meaning assigned to such term in Section 2.24(b).

 

“IncrementalTerm Loans” shall have the meaning assigned to such term in Section 2.24(a).

 

“Indebtedness” shall mean, with respect to anyPerson, without duplication:

 

(a)           anyindebtedness (including principal and premium) of such Person, whether or notcontingent

 

(i)            in respect of borrowed money;

 

(ii)           evidenced by bonds, notes, debenturesor similar instruments;

 

(iii)          evidenced by letters of credit orbankers’ acceptances (or, without duplication, reimbursement agreements in respectthereof);

 

(iv)          Capitalized Lease Obligations;

 

(v)           representing the balance deferred andunpaid of the purchase price of any property (other than Capitalized LeaseObligations), except (A) any such balance that constitutes a trade payableor similar obligation to a trade creditor, in each case accrued in the ordinarycourse of business, (B) liabilities accrued in the ordinary course ofbusiness and (C) earn-outs and other contingent payments in respect ofacquisitions except to the extent that the liability on account of any suchearn-outs or contingent payment becomes fixed; or

 

(vi)          representing any Hedging Obligations;

 

if andto the extent that any of the foregoing Indebtedness (other than letters ofcredit, bankers’ acceptances and Hedging Obligations) would appear as aliability upon a balance sheet (excluding the footnotes thereto) of such Personprepared in accordance with GAAP;

 

(b)           tothe extent not otherwise included, any obligation by such Person to be liablefor, or to pay, as obligor, guarantor or otherwise, on the obligations of thetype referred to in clause (a) of a third Person (whether or notsuch items would appear upon the balance sheet of such obligor or guarantor),other than by endorsement of negotiable instruments for collection in theordinary course of business; and

 

(c)           tothe extent not otherwise included, the obligations of the type referred to in clause (a) ofa third Person secured by a Lien on any asset owned by such first Person,whether or not such Indebtedness is assumed by such first Person;

 

provided, however, thatnotwithstanding the foregoing, Indebtedness shall be deemed not to include(x) Contingent Obligations incurred in the ordinary course of business and(y) obligations under or in respect of Receivables Facilities.  The amount of Indebtedness of any personunder clause (c) above shall be deemed to equal the lesser of (x) theaggregate unpaid amount of such Indebtedness secured by such Lien and (y) thefair market value of the property encumbered thereby as determined by suchperson in good faith.

 

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“Indemnified Taxes” shall mean Taxes other thanExcluded Taxes and Other Taxes.

 

“Indemnitee” shall have the meaning assigned tosuch term in Section 9.05(b).

 

“Independent Financial Advisor” shall mean anaccounting, appraisal, investment banking firm or consultant to Persons engagedin Similar Businesses of nationally recognized standing that is, in the goodfaith judgment of the Parent Borrower, qualified to perform the task for whichit has been engaged.

 

“Insolvency Proceedings” shall mean, withrespect to any Person, any case or proceeding with respect to such Person underU. S. federal bankruptcy laws or any other state, federal or foreignbankruptcy, insolvency, reorganization, liquidation, receivership, or othersimilar law, or the appointment, whether at common law, in equity or otherwise,of any trustee, custodian, receiver, liquidator or the like for all or anymaterial portion of the property of such Person.

 

“Intellectual Property Security Agreement”shall mean any of the following agreements executed on or after the ClosingDate (a) a Trademark Security Agreement substantially in the form of Exhibit F-1,(b) a Patent Security Agreement substantially in the form of Exhibit F-2or (c) a Copyright Security Agreement substantially in the form of Exhibit F-3.

 

“Intermediate Holdco” shall have the meaningassigned to such term in the recitals and shall include any successors to suchPerson or assigns.

 

“Interest Payment Date” shall mean(a) with respect to any ABR Loan (including any Swingline Loan), the lastday of each March, June, September and December, commencingSeptember 30, 2007 and (b) with respect to any Eurodollar Loan,the last day of the Interest Period applicable to such Loan and, in the case ofa Eurodollar Borrowing with an Interest Period of more than 3 months’ duration,each day that would have been an Interest Payment Date had successive InterestPeriods of 3 months’ duration been applicable to such Borrowing.

 

“Interest Period” shall mean (a) withrespect to any Eurodollar Borrowing, the period commencing on the date of suchBorrowing and ending on the numerically corresponding day (or, if there is nonumerically corresponding day, on the last day) in the calendar month that is1, 2, 3 or 6 (or 9 or 12, with the consent of all of therelevant Lenders) months (or such other periods acceptable to the Lenders)thereafter, as the relevant Borrower may elect; provided, however,that if any Interest Period would end on a day other than a Business Day, suchInterest Period shall be extended to the next succeeding Business Day unlesssuch next succeeding Business Day would fall in the next calendar month, inwhich case such Interest Period shall end on the next preceding Business Dayand (b) with respect to any BA Rate Loan, the applicable BA InterestPeriod. Interest shall accrue from and including the first day of an InterestPeriod to but excluding the last day of such Interest Period. For purposeshereof, the date of a Borrowing initially shall be the date on which suchBorrowing is made and thereafter shall be the effective date of the most recentconversion or continuation of such Borrowing.

 

“Internally Generated Cash” shall mean anyamount expended by the Parent Borrower and its Restricted Subsidiaries and notrepresenting (a) a reinvestment by the Parent Borrower or any RestrictedSubsidiaries of the Net Cash Proceeds of any Prepayment Asset Sale outside theordinary course of business or Property Loss Event, (b) the proceeds ofany issuance of any Disqualified Stock, Preferred Stock or long-termIndebtedness of the Parent Borrower or any Restricted Subsidiary (other thanIndebtedness under any revolving credit facility) or (c) any creditreceived by the Parent Borrower or any Restricted Subsidiary with respect toany trade in of property for substantially similar property or any “like kindexchange” of assets.

 

“Investment Grade Rating” shall mean a ratingequal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or theequivalent) by S&P, or an equivalent rating by any other Rating Agency.

 

“Investment Grade Securities” shall mean:

 

(a)           securitiesissued or directly and fully guaranteed or insured by the United States governmentor any agency or instrumentality thereof (other than Cash Equivalents);

 

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(b)           debtsecurities or debt instruments with an Investment Grade Rating, but excludingany debt securities or instruments constituting loans or advances among theParent Borrower and its subsidiaries;

 

(c)           investmentsin any fund that invests exclusively in investments of the type described in clauses(a) and (b) which fund may also hold immaterial amounts ofcash pending investment or distribution; and

 

(d)           correspondinginstruments in countries other than the United States customarily utilized forhigh quality investments.

 

“Investments” shall mean, with respect to anyPerson, all investments by such Person in other Persons (including Affiliates)in the form of loans (including guarantees), advances, issuances of letters ofcredit or similar financial accommodations or capital contributions (excludingaccounts receivable, trade credit, management fees, advances to customers,commission, travel, entertainment, relocation, payroll and similar advances todirectors, officers and employees, in each case made in the ordinary course ofbusiness), purchases or other acquisitions for consideration of Indebtedness,Equity Interests or other securities issued by any other Person and investmentsthat are required by GAAP to be classified on the balance sheet (excluding thefootnotes) of such Person in the same manner as the other investments includedin this definition to the extent such transactions involve the transfer of cashor other property.  The amount of anyInvestment shall be deemed to be the amount actually invested, without adjustmentfor subsequent increases or decreases in value but giving effect to any returnsor distributions received by such Person with respect thereto.  For purposes of the definition of“Unrestricted Subsidiary” and Section 6.03:

 

(a)           “Investments”shall include the portion (proportionate to the Parent Borrower’s direct orindirect equity interest in such subsidiary) of the fair market value of thenet assets of a subsidiary of the Parent Borrower at the time that suchsubsidiary is designated an Unrestricted Subsidiary; provided, however,that upon a redesignation of such subsidiary as a Restricted Subsidiary, theParent Borrower or applicable Restricted Subsidiary shall be deemed to continueto have a permanent “Investment” in an Unrestricted Subsidiary in an amount (ifpositive) equal to:

 

(i)            the Parent Borrower’s direct orindirect “Investment” in such subsidiary at the time of such redesignation;less

 

(ii)           the portion (proportionate to theParent Borrower’s direct or indirect equity interest in such subsidiary) of thefair market value of the net assets of such Subsidiary at the time of such redesignation;and

 

(b)           anyproperty transferred to or from an Unrestricted Subsidiary shall be valued atits fair market value at the time of such transfer, in each case as determinedin good faith by the Parent Borrower.

 

“Issuing Bank” shall mean, as the context mayrequire, (a) Bank of America, N.A., acting through any of its Affiliatesor branches, in its capacity as the issuer of Letters of Credit hereunder,(b) Deutsche Bank AG, New York Branch, in respect of the Existing Lettersof Credit and (c) any other Person that may become an Issuing Bank pursuantto Section 2.23(i) or 2.23(k), with respect to Lettersof Credit issued at the time such Person was a Lender. The Issuing Bank may, inits discretion, arrange for one or more Letters of Credit to be issued byAffiliates or branches of the Issuing Bank, in which case the term “IssuingBank” shall include any such Affiliate or branch with respect to Letters ofCredit issued by such Affiliate or branch.

 

“Issuing Bank Fees” shall have the meaningassigned to such term in Section 2.05(c).

 

“Judgment Currency”has the meaning specified in Section 9.15(d).

 

“Junior Financing” shall mean any SubordinatedIndebtedness which is Material Indebtedness.

 

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“Junior Financing Documentation” shall mean anyindenture and/or other agreement pertaining to Junior Financing and alldocumentation delivered pursuant thereto.

 

“L/C Backstop” shall mean, in respect of anyLetter of Credit, (a) a letter of credit delivered to the Issuing Bankwhich may be drawn by the Issuing Bank to satisfy any obligations of theBorrowers in respect of such Letter of Credit or (b) cash or CashEquivalents deposited with the Issuing Bank to satisfy any obligation of the Borrowersin respect of such Letter of Credit, in each case, in an amount equal to theDollar Equivalent of the undrawn face amount of such Letter of Credit andotherwise on terms and pursuant to arrangements (including, if applicable, anyappropriate reimbursement agreement) reasonably satisfactory to the respectiveIssuing Bank.

 

“L/C Commitment” shall mean the commitment ofan Issuing Bank to issue Letters of Credit pursuant to Section 2.23.

 

“L/C Disbursement” shall mean a payment ordisbursement made by an Issuing Bank pursuant to a Letter of Credit.

 

“L/C Exposure” shall mean, at any time, the sumof (a) the aggregate undrawn amount of all outstanding Letters of Creditat such time and (b) the aggregate principal amount of all L/CDisbursements that have not yet been reimbursed at such time, in each case,calculated using the Dollar Equivalent at such time of all outstanding Lettersof Credit denominated in an Alternative Currency.  The L/C Exposure of any Revolving CreditLender at any time shall equal its Pro Rata Percentage of the aggregate L/CExposure at such time.

 

“L/C Participation Fee” shall have the meaningassigned to such term in Section 2.05(c).

 

“Lenders” shall mean (a) the Personslisted on Schedule 2.01 under the heading “Credit Facilities”(other than any such Person that has ceased to be a party hereto pursuant to anAssignment and Acceptance or pursuant to Section 2.21(a)) and(b) any Person that has become a party hereto pursuant to an Assignmentand Acceptance in respect of the Credit Facilities.  Unless the context indicates otherwise, theterm “Lenders” shall include the Swingline Lender.

 

“Letter of Credit” shall mean any letter ofcredit issued (or, in the case of an Existing Letter of Credit, deemed issued)pursuant to Section 2.23.

 

“Letter of Credit Application” shall have themeaning assigned to such term in Section 2.23(b).

 

“Letter of Credit Expiration Date” shall havethe meaning assigned to such term in Section 2.23(c).

 

“LIBO Rate” shall mean, with respect to anyEurodollar Borrowing of any currency (other than any Eurodollar Borrowing ofEuro Term Loans) for any Interest Period, the rate per annum equal to theBritish Bankers Association LIBOR Rate (“BBA LIBOR”), as published byReuters (or other commercially available source providing quotations of BBALIBOR as designated by the Administrative Agent from time to time) atapproximately 11:00 a.m. (London time) on the date that is 2 Business Daysprior to the commencement of such Interest Period for a period equal to suchInterest Period (or on the first day of such Interest Period in the case of anyLIBO Rate Loan denominated in Sterling); provided that to the extentthat an interest rate is not ascertainable pursuant to the foregoing provisionsof this definition, the “LIBO Rate” shall be the interest rate per annum determinedby the Administrative Agent to be the average of the rates per annum at whichdeposits in dollars, euro or Sterling or any other Alternative Currency, asapplicable, are offered for such relevant Interest Period to major banks in theLondon interbank market in London, England by the Administrative Agent atapproximately 11:00 a.m. (London time) on the date that is 2 Business Daysprior to the beginning of such Interest Period (or on the first day of suchInterest Period in the case of any LIBO Rate Loan denominated in Sterling).

 

“Lien” shall mean, with respect to any asset,any mortgage, lien (statutory or otherwise), pledge, hypothecation, charge,security interest, preference, priority or encumbrance of any kind in respectof such asset, whether or not filed, recorded or otherwise perfected under applicablelaw, including any conditional sale or other

 

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titleretention agreement, any lease in the nature thereof and any other agreement togive a security interest in such asset; provided that in no event shallan operating lease be deemed to constitute a Lien.

 

“Limited Non-Guarantor Debt Exceptions” shallhave the meaning assigned to such term in Section 6.01(g).

 

“Loan Documents” shall mean this Agreement, theSecurity Documents, the Notes, if any, executed and delivered pursuant to Section 2.04(e).

 

“Loan Parties” shall mean the Borrowers and theGuarantors.

 

“Loans” shall mean the Revolving Loans, theTerm Loans and the Swingline Loans.

 

 “MarginStock” shall have the meaning assigned to such term in Regulation U.

 

“Material Adverse Effect” shall mean(a) on or prior to the Closing Date, a Target Material Adverse Effect and(b) after the Closing Date a material adverse effect (i) on the business,operations, assets, financial condition or results of operations of the ParentBorrower and its Restricted Subsidiaries, taken as a whole or (ii) on anymaterial rights and remedies of the Administrative Agent and the Lenders underthe Loan Documents, taken as a whole.

 

“Material Indebtedness” shall mean Indebtedness(other than the Loans and Letters of Credit), or Hedging Obligations, of anyone or more of the Parent Borrower and its Restricted Subsidiaries in anaggregate principal amount greater than or equal to $35,000,000.  For purposes of determining “MaterialIndebtedness”, the “principal amount” of the obligations of the Parent Borroweror any Restricted Subsidiary in respect of any Hedging Obligation at any timeshall be the maximum aggregate amount (giving effect to any netting agreements)that the Parent Borrower or such Restricted Subsidiary would be required to payif the relevant hedging agreement****wereterminated at such time.

 

“Maximum Rate” shall have the meaning assignedto such term in Section 9.09.

 

“MDP Unit Purchase Agreement” shall mean theMDP Unit Purchase Agreement, dated as of the date hereof, by and betweenVarietal Distribution Holdings, LLC, Madison Dearborn Capital Partners V-A,L.P., a Delaware limited partnership, Madison Dearborn Capital Partners V-C,L.P., a Delaware limited partnership, and Madison Dearborn Partners VExecutive-A, L.P., a Delaware limited partnership.

 

“Merger” shall mean the merger of Merger Subwith and into the Company, with the Company as the surviving entity of suchmerger, as contemplated by the Merger Agreement.

 

“Merger Agreement” shall mean that certainAgreement and Plan of Merger dated as of May 2, 2007, as amended by thatcertain First Amendment to Agreement and Plan of Merger dated as of May 7,2007 and that certain Second Amendment to Agreement and Plan of Merger dated asof May 30, 2007, in each case, by and among Varietal Distribution Holdings,LLC, Merger Sub and the Company.

 

“Merger Sub” shall have the meaning assigned tosuch term in the preamble.

 

“Minimum CurrencyThreshold” means (a) in the case of ABR Loans, $2,000,000 or anintegral multiple of $1,000,000 in excess thereof, (b) in the case ofEurodollar Loans denominated in Dollars, $5,000,000 or an integral multiple of$1,000,000 in excess thereof, (c) in the case of Revolving Loansdenominated in euro, €1,000,000 or an integral multiple of €1,000,000 in excessthereof, (d) in the case of Term Loans denominated in euro, €2,500,000 oran integral multiple of €500,000 in excess thereof, (e) in the case ofLoans denominated in Sterling, £1,000,000 or an integral multiple of £500,000in excess thereof, (f) in the case of Loans denominated in CanadianDollars, C$1,000,000 or an integral multiple of C$1,000,000 in excess thereof and(g) in the case of Loans denominated in any other Alternative Currency,such Alternative Currency equivalent of $1,000,000 or an integral multiple ofsuch Alternative Currency equivalent of $1,000,000 in excess thereof.

 

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“Moody’s” shall mean Moody’s InvestorsService, Inc., or any successor thereto.

 

“Mortgaged Properties” shall mean each parcelof fee owned real property located in the United States with a book value inexcess of $5,000,000 and improvements thereto with respect to which a Mortgageis granted pursuant to Section 5.09 or Section 5.10 tosecure the Obligations.

 

“Mortgages” shall mean the mortgages, deeds oftrust and other security documents granting a Lien on any fee owned realproperty or interest therein to secure the Secured Obligations, each in a formreasonably satisfactory to the Collateral Agent.

 

“Multiemployer Plan” shall mean a multiemployerplan as defined in Section 4001(a)(3) of ERISA under which the ParentBorrower, any Restricted Subsidiary or any of their respective ERISA Affiliateshas any obligation or liability (contingent or otherwise).

 

“Net Cash Proceeds” shall mean (a) withrespect to any Disposition or Property Loss Event, the proceeds thereof in theform of cash and Cash Equivalents (including any such proceeds subsequentlyreceived (as and when received) in respect of deferred payments or noncashconsideration initially received, net of any costs relating to the dispositionthereof), net of (i) out-of-pocket expenses incurred (including reasonableand customary broker’s fees or commissions, investment banking, consultant,legal, accounting or similar fees, survey costs, title insurance premiums, andrelated search and recording charges, transfer, deed, recording and similartaxes incurred by the Parent Borrower and its Restricted Subsidiaries inconnection therewith), and the Parent Borrower’s good faith estimate of Taxespaid or payable (including payments under any tax sharing agreement orarrangement of the type described in clause (b)(i) of the definition ofExcess Cash Flow), in connection with such Disposition or such Property LossEvent (including, in the case of any such Disposition or Property Loss Event inrespect of property of any Foreign Subsidiary, Taxes payable upon therepatriation of any such proceeds), (ii) amounts provided as a reserve, inaccordance with GAAP, against any (x) liabilities under anyindemnification obligations or purchase price adjustment associated with suchDisposition and (y) other liabilities associated with the asset disposedof and retained by the Parent Borrower or any of its Restricted Subsidiariesafter such disposition, including pension and other post-employment benefitliabilities and liabilities related to environmental matters (providedthat to the extent and at the time any such amounts are released from suchreserve, such amounts shall constitute Net Cash Proceeds), (iii) theprincipal amount, premium or penalty, if any, interest and other amounts on anyIndebtedness or other obligation which is secured by a Lien on the asset soldthat (A) has priority over the Lien securing the Obligations and which isrepaid (other than Indebtedness hereunder) or (B) is required to be repaidand is repaid pursuant to intercreditor arrangements entered into by theAdministrative Agent or the Collateral Agent and (iv) in the case of anysuch Disposition or Property Loss Event by a non-Wholly-Owned RestrictedSubsidiary, the pro rata portion of the Net Cash Proceeds thereof (calculatedwithout regard to this clause (iv)) attributable to minority interestsand not available for distribution to or for the account of the Parent Borroweror a wholly owned Restricted Subsidiary as a result thereof and (b) with respectto any incurrence of Indebtedness, the cash proceeds thereof, net of all Taxes(including, in the case of such Indebtedness incurred by a Foreign Subsidiary,Taxes payable upon the repatriation of any such proceeds) and customary fees,commissions, costs and other expenses incurred by the Parent Borrower and its RestrictedSubsidiaries in connection therewith.

 

“New Mezzanine Notes” shall mean the ParentBorrower’s 10.75% Senior Subordinated Notes due 2017 in the original principalamount of the Dollar Equivalent of approximately $520,000,000, as such amountmay be increased from time to time in respect of the payment of interestthereunder and any additional notes issued pursuant to the terms of the NewMezzanine Notes Documentation representing the payment of interest (andincludes any Refinancing Indebtedness in respect thereof permitted by Section 6.01(but without duplication of any amounts otherwise permitted by clause (b)(ii) thereof)and any notes issued in exchange or replacement of any of the foregoing onsubstantially identical terms).

 

“New Mezzanine Notes Documentation” shall meanany indenture and/or other agreement governing the New Mezzanine Notes and alldocumentation delivered pursuant thereto.

 

“New Senior Notes” shall mean the ParentBorrower’s 10.25%/11.25% Senior PIK Toggle Notes due 2015 in the original principalamount of $675,000,000, as such amount may be increased from time to time inrespect of

 

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thepayment of interest thereunder and any additional notes issued pursuant to theterms of the New Senior Notes Documentation representing the payment ofinterest (and includes any Refinancing Indebtedness in respect thereofpermitted by Section 6.01 (but without duplication of any amountsotherwise permitted by clause (b)(ii) thereof) and any notesissued in exchange or replacement of any of the foregoing on substantiallyidentical terms).

 

“New Senior Notes Documentation” shall mean anyindenture and/or other agreement governing the New Senior Notes and alldocumentation delivered pursuant thereto.

 

“Non-Consenting Lenders” shall have the meaningassigned to such term in Section 2.21.

 

“Nonpriority Hedging Obligations” means allHedging Obligations other than Priority Hedging Obligations.

 

“Note” hasthe meaning specified in Section 2.04(e).

 

“Obligations” means the Domestic Obligationsand the Foreign Obligations.

 

“Officer’s Certificate” shall mean acertificate signed on behalf of the Parent Borrower by a Responsible Officer ofthe Parent Borrower.

 

“Opinion of Counsel” shall mean a writtenopinion from legal counsel who is reasonably acceptable to the AdministrativeAgent.  The counsel may be an employee ofor counsel to the Borrowers or the relevant Agent.

 

“Other Closing Date Representations” shall meanthose representations and warranties made by the Company in the MergerAgreement that (a) are material to the interests of the Lenders and(b) a breach of any of which would permit Holdings and/or Merger Sub toterminate their respective obligations under the Merger Agreement.

 

“Other Taxes” shall mean any and all present orfuture stamp or documentary taxes arising from the execution, delivery orenforcement of any Loan Document.

 

“Parent” shall mean a Person formed for thepurpose of owning all of the Equity Interests, directly or indirectly, ofHoldings.

 

“Parent Borrower” shall mean (a) prior tothe consummation of the Merger, Merger Sub and (b) upon and afterconsummation of the Merger, the Company.

 

“PBGC” shall mean the Pension Benefit GuarantyCorporation referred to and defined in ERISA.

 

“Pension Event” shall mean (a) the wholeor partial withdrawal of a Loan Party or any Restricted Subsidiary from aForeign Plan during a Foreign Plan year, (b) the filing or a notice ofinterest to terminate in whole or in part a Foreign Plan or the treatment of aForeign Plan amendment as a termination or partial termination, (c) theinstitution of proceedings by any Governmental Authority to terminate in wholeor in part or have a trustee appointed to administer a Foreign Plan,(d) any other event or condition which might constitute grounds for thetermination of, winding up or partial termination or winding up or theappointment of a trustee to administer, any Foreign Plan, (e) the failureto satisfy any statutory funding requirement, (f) the adoption of anyamendment to a Foreign Plan that would require the provision of securitypursuant to applicable law or (g) any other extraordinary event orcondition with respect to a Foreign Plan which, with respect to each of theforegoing clauses, could reasonably be expected to result in a Lien or anyacceleration of any statutory requirement to fund all or a substantial portionof the unfunded accrued benefit liabilities of such plan.

 

“Pension Plan” shall mean any employee pensionbenefit plan as defined in Section 3(2) of ERISA (other than aMultiemployer Plan or Foreign Plan) that is subject to Title IV of ERISA and/orSection 412 of the Code or Section 302 of ERISA and is sponsored ormaintained by any Loan Party or any ERISA Affiliate or to which any Loan Partyor any ERISA Affiliate contributes or has any obligation or liability(contingent or otherwise).

 

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“Perfection Certificate” means a perfectioncertificate executed by the Loan Parties in a form reasonably approved by theCollateral Agent, as the same shall be supplemented from time to time.

 

“Permitted Asset Swap” shall mean, to theextent allowable under Section 1031 of the Code, the concurrent purchaseand sale or exchange of Related Business Assets or a combination of RelatedBusiness Assets (excluding any boot thereon) between the Parent Borrower or anyof its Restricted Subsidiaries and another Person.

 

“Permitted Investments” shall mean:

 

(a)           anyInvestment in the Parent Borrower or any of its Restricted Subsidiaries; providedthat the fair market value of all Investments made by Loan Parties inRestricted Subsidiaries that are not Loan Parties made pursuant to this clause(a) shall not exceed the sum of (i) $100,000,000 and(ii) the Net Cash Proceeds from any Disposition or Property Loss Eventwhich are not required to be used prior to such time to prepay Term Loans orreinvested (other than in reliance on this clause (a)) pursuant to Section 2.13(b) andwhich are not used for purposes of clause (m) below (with the fair marketvalue of each Investment being measured at the time made and without givingeffect to subsequent changes in value);

 

(b)           anyInvestment in cash and Cash Equivalents or Investment Grade Securities;

 

(c)           anyInvestment by the Parent Borrower or any of its Restricted Subsidiaries in aPerson that is engaged in a Similar Business if as a result of such Investment:

 

(i)            such Person becomes a Loan Party; or

 

(ii)           such Person, in one transaction or aseries of related transactions, is merged or consolidated with or into, ortransfers or conveys substantially all of its assets to, or is liquidated into,a Loan Party,

 

and, in each case, any Investment held by such Person;provided that such Investment was not acquired by such Person incontemplation of such acquisition, merger, consolidation or transfer;

 

(d)           anyInvestment in securities or other assets not constituting cash, CashEquivalents or Investment Grade Securities and received in connection with aDisposition made pursuant to Section 6.05;

 

(e)           anyInvestment existing on the Closing Date or made pursuant to binding commitmentsin effect on the Closing Date, or an Investment consisting of any extension,modification or renewal of any Investment existing on the Closing Date; providedthat the amount of any such Investment may be increased (i) as required bythe terms of such Investment as in existence on the Closing Date or(ii) as otherwise permitted under this Agreement;

 

(f)            anyInvestment acquired by the Parent Borrower or any of its RestrictedSubsidiaries:

 

(i)            in exchange for any other Investmentor accounts receivable held by the Parent Borrower or any such RestrictedSubsidiary in connection with or as a result of a bankruptcy workout,reorganization or recapitalization of the issuer of such other Investment oraccounts receivable; or

 

(ii)           as a result of a foreclosure by theParent Borrower or any of its Restricted Subsidiaries with respect to anysecured Investment or other transfer of title with respect to any securedInvestment in default;

 

(g)           HedgingObligations permitted under Section 6.01(b)(ix);

 

(h)           [intentionallyomitted];

 

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(i)            Investmentsthe payment for which consists of Equity Interests (exclusive of DisqualifiedStock) of the Parent Borrower or any of its direct or indirect parentcompanies; provided,**however,**that such Equity Interests will not increase the RestrictedPayment Applicable Amount;

 

(j)            Indebtednesspermitted under Section 6.01;

 

(k)           anytransaction to the extent it constitutes an Investment that is permitted andmade in accordance with Section 6.06;

 

(l)            Investmentsconsisting of purchases and acquisitions of inventory, supplies, material orequipment;

 

(m)          additionalInvestments having an aggregate fair market value, taken together with allother Investments made pursuant to this clause (m) that are at the timeoutstanding (without giving effect to the sale of an Unrestricted Subsidiary tothe extent the proceeds of such sale do not consist of cash or marketablesecurities), not to exceed (i) on or before the first anniversary of theClosing Date, the sum of (A) the greater of $100,000,000 or 2.0% of TotalAssets at the time of such Investment, plus (B) the Net Cash Proceeds fromany Disposition or Property Loss Event which are not required to be used priorto such time to prepay Term Loans or reinvested (other than in reliance on thisclause (m)) pursuant to Section 2.13(b) and which arenot used for purposes of clause (a) above, (ii) after thefirst anniversary of the Closing Date but on or before the second anniversaryof the Closing Date, the sum of (A) the greater of $100,000,000 or 2.0% ofTotal Assets at the time of such Investment, plus (B) the Net CashProceeds from any Disposition or Property Loss Event which are not required tobe used prior to such time to prepay Term Loans or reinvested (other than inreliance on this clause (m)) pursuant to Section 2.13(b) andwhich are not used for purposes of clause (a) above, plus(C) without duplication of amounts included in subclause (ii)(B),100% of the unutilized portion of the amount of Investments permitted by sublcause(i) above and (iii) thereafter, (A) the greater of$100,000,000 or 2.0% of Total Assets at the time of such Investment, plus(B) the Net Cash Proceeds from any Disposition or Property Loss Eventwhich are not required to be used prior to such time to prepay Term Loans orreinvested (other than in reliance on this clause (m)) pursuant to Section 2.13(b) andwhich are not used for purposes of clause (a) above, plus(C) without duplication of amounts included in subclause (iii)(B),100% of the unutilized portion of the amount of Investments permitted by subclause(ii) above, so long as, in the case of each of clauses (i),(ii) and (iii) above, after giving pro forma effect to suchInvestment and any Indebtedness, Disqualified Stock or Preferred Stock assumedor incurred in connection therewith, the Total Net Leverage Ratio is less thanthe Total Net Leverage Ratio immediately prior to the making of suchInvestment; providedhowever, the fair market value ofInvestments in Unrestricted Subsidiaries made pursuant to this clause (m)shall not exceed the greater of $50,000,000 or 1.0% of Total Assets (with thefair market value of each Investment being measured at the time made andwithout giving effect to subsequent changes in value); providedfurther,if immediately after giving effect to any Investment that would otherwise besubject to this clause (m), the Parent Borrower could incur $1.00 ofadditional Indebtedness pursuant to the Total Net Leverage Ratio test describedin Section 6.01(a) on a *proforma* basis taking into account such Investment and anyIndebtedness, Disqualified Stock or Preferred Stock assumed or incurred inconnection therewith, such additional Investments shall not be subject to anyaggregate thresholds;

 

(n)           Investmentsrelating to a Receivables Subsidiary that, in the good faith determination ofthe Parent Borrower, are necessary or advisable to effect any ReceivablesFacility;

 

(o)           advancesto, or guarantees of Indebtedness of, directors, employees, officers and consultantsnot in excess of $15,000,000 outstanding at any one time, in the aggregate;

 

(p)           loansand advances to officers, directors and employees for moving or relocation expensesand other similar expenses, in each case incurred in the ordinary course ofbusiness or to fund such Person’s purchase of Equity Interests of the ParentBorrower or any direct or indirect parent company thereof;

 

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(q)           Investmentsin the ordinary course of business consisting of endorsements for collection ordeposit;

 

(r)            additionalInvestments in joint ventures in an aggregate amount not to exceed $20,000,000at any time outstanding;

 

(s)           loansand advances relating to indemnification or reimbursement of any officers, directorsor employees in respect of liabilities relating to their serving in any suchcapacity or as otherwise specified in Section 6.06;

 

(t)            Investmentsin the nature of pledges or deposits with respect to leases or utilitiesprovided to third parties in the ordinary course of business;

 

(u)           Investmentsin industrial development or revenue bonds or similar obligations secured byassets leased to and operated by the Parent Borrower or any of its subsidiariesthat were issued in connection with the financing of such assets, so long asthe Parent Borrower or any such subsidiary may obtain title to such assets atany time by optionally canceling such bonds or obligations, paying a nominalfee and terminating such financing transaction;

 

(v)           depositsmade by the Parent Borrower and Foreign Subsidiaries in Cash Pooling Arrangements;

 

(w)          Investmentsmade in connection with the Foreign Subsidiary Reorganization;

 

(x)            Investmentsin (i) new offshore finance companies, including, without limitation,non-Wholly-Owned Subsidiaries and (ii) new Foreign Subsidiaries that wouldengage in transactions with other Foreign Subsidiaries to maximize taxefficiency and dividend capacity; and

 

(y)           extensionsof trade credit in the ordinary course of business.

 

“Permitted Investors” shall mean (a) theSponsor, (b) any Person making an Investment in Parent concurrently withthe Sponsor on or following the Closing Date, (c) any Person who is anofficer or otherwise a member of management of the Parent or any of itssubsidiaries on the Closing Date; provided that if such officers andmembers of management beneficially own more shares of voting stock of ParentBorrower or its direct or indirect parent than the number of sharesbeneficially owned by all the officers on the Closing Date or issued within 90days thereafter, such excess shall be deemed not to be beneficially owned bythe Permitted Investors, (d) any Related Entity of any of the foregoingPersons and (e) any “group” (within the meaning ofSection 13(d)(3) or Section 14(d)(2) of the Exchange Act orany successor provision) of which any of the foregoing are members; providedthat in the case of such “group” and without giving effect to the existence ofsuch “group” or any other “group,” such Persons specified in clauses (a), (b),(c) or (d) above (subject, in the case of officers, to the foregoinglimitation), collectively, have beneficial ownership, directly or indirectly,of more than 50% of the total voting power of the voting stock of the Parent orany of its direct or indirect parent entities held by such “group,” and providedfurther, that, in no event shall the Sponsor own a lesser percentage ofvoting stock than any other person or group referred to in clauses (b), (c) or(d).

 

“Permitted Liens” shall mean, with respect toany Person:

 

(a)           pledgesor deposits by such Person under workmen’s compensation laws, unemployment insurancelaws or similar legislation, or good faith deposits in connection with bids,tenders, contracts (other than for the payment of Indebtedness) or leases towhich such Person is a party, or deposits to secure public or statutoryobligations of such Person or deposits of cash or U.S. government bonds tosecure surety or appeal bonds to which such Person is a party, or deposits assecurity for contested taxes or import duties or for the payment of rent, ineach case incurred in the ordinary course of business;

 

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(b)           Liensimposed by law, such as carriers’, warehousemen’s and mechanics’ Liens, in eachcase for sums not yet overdue for a period of more than 60 days or beingcontested in good faith by appropriate proceedings or other Liens arising outof judgments or awards against such Person with respect to which such Personshall then be proceeding with an appeal or other proceedings for review ifadequate reserves with respect thereto are maintained on the books of suchPerson in accordance with GAAP;

 

(c)           Liensfor taxes, assessments or other governmental charges not yet overdue for aperiod of more than 45 days or subject to penalties for nonpayment or which arebeing contested in good faith by appropriate proceedings diligently conducted,if adequate reserves with respect thereto are maintained on the books of suchPerson in accordance with GAAP;

 

(d)           Liensin favor of the issuer of stay, customs, appeal, performance and surety bondsor bid bonds or with respect to other regulatory requirements or letters ofcredit issued pursuant to the request of and for the account of such Person inthe ordinary course of its business;

 

(e)           minorsurvey exceptions, minor encumbrances, easements or reservations of, or rightsof others for, licenses, rights-of-way, sewers, electric lines, telegraph andtelephone lines and other similar purposes, or zoning or other restrictions asto the use of real properties or Liens incidental to the conduct of the businessof such Person or to the ownership of its properties which were not incurred inconnection with Indebtedness and which do not in the aggregate materiallyadversely affect the value of said properties or materially impair their use inthe operation of the business of such Person;

 

(f)            Lienssecuring Indebtedness permitted to be incurred pursuant to Section 6.01(b)(iv),(xvii), (xviii), (xxii) and (xxvi); provided,**that Liens securing Indebtedness permitted to be incurredpursuant to clause (xvii) shall extend only to the assets of ForeignSubsidiaries and Liens securing Indebtedness permitted to be incurred pursuantto paragraphs (b)(iv) and (b)(xviii) are solely on theassets financed, purchased, constructed, improved, acquired or assets of theacquired entity, as the case may be;

 

(g)           Liensexisting on the Closing Date and described in all material respects on Schedule 6.02;

 

(h)           [intentionallyomitted];

 

(i)            Lienson property or shares of stock of a Person at the time such Person becomes a Subsidiary;provided,**however, such Liens arenot created or incurred in connection with, or in contemplation of, such otherPerson becoming such a Subsidiary; provided,**further,**that such Liens may not extend to any other property ownedby the Parent Borrower or any of its Restricted Subsidiaries;

 

(j)            Lienson property at the time the Parent Borrower or a Restricted Subsidiary acquiredthe property, including any acquisition by means of a merger or consolidationwith or into the Parent Borrower or any of its Restricted Subsidiaries; provided,**however, that such Liens are not created or incurredin connection with, or in contemplation of, such acquisition; provided,**further,**that the Liensmay not extend to any other property owned by the Parent Borrower or any of itsRestricted Subsidiaries;

 

(k)           Lienssecuring Indebtedness or other obligations of the Parent Borrower or aRestricted Subsidiary owing to the Parent Borrower or another RestrictedSubsidiary permitted to be incurred in accordance with Section 6.01(b)(vii);

 

(l)            Lienssecuring Hedging Obligations so long as, in the case of Hedging Obligations relatedto interest, the related Indebtedness is secured by a Lien on the same propertysecuring such Hedging Obligations;

 

(m)          Lienson specific items of inventory or other goods and proceeds of any Personsecuring such Person’s obligations in respect of bankers’ acceptances issued orcreated for the account of such

 

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Person to facilitate thepurchase, shipment or storage of such inventory or other goods, and pledges ordeposits in the ordinary course of business securing inventory purchases fromvendors;

 

(n)           leases,subleases, licenses or sublicenses (including, without limitation, licenses andsublicenses of intellectual property) granted to others in the ordinary courseof business which do not materially interfere with the ordinary conduct of thebusiness of the Parent Borrower or any of its Restricted Subsidiaries or whichdo not by their own terms secure any Indebtedness;

 

(o)           Liensarising from UCC financing statement filings regarding operating leases enteredinto by the Parent Borrower and its Restricted Subsidiaries in the ordinarycourse of business;

 

(p)           Liensin favor of any Borrower or any Restricted Guarantor;

 

(q)           Lienson inventory or equipment of the Parent Borrower or any of its RestrictedSubsidiaries granted in the ordinary course of business to the ParentBorrower’s or such Restricted Subsidiary’s clients or customers at which suchinventory or equipment is located;

 

(r)            Lienson accounts receivable and related assets incurred in connection with aReceivables Facility;

 

(s)           Liensto secure any refinancing, refunding, extension, renewal or replacement (orsuccessive refinancing, refunding, extensions, renewals or replacements) as awhole, or in part, of any Indebtedness permitted by Section 6.01and secured by any Lien referred to in the foregoing clauses (f), (g),(i) and (j); provided,**however,that (i) such new Lien shall be limited to all or part of the sameproperty that secured the original Lien (plus improvements on such property),and (ii) the Indebtedness secured by such Lien at such time is notincreased to any amount greater than the sum of (A) the outstandingprincipal amount or, if greater, committed amount of the Indebtedness describedunder clauses (f), (g), (i) and (j) at thetime the original Lien became a Permitted Lien hereunder, and (B) anamount necessary to pay any fees and expenses, including premiums, related tosuch refinancing, refunding, extension, renewal or replacement;

 

(t)            pledgesor deposits made in the ordinary course of business to secure liability to insurancecarriers and Liens on insurance policies and the proceeds thereof (whetheraccrued or not), rights or claims against an insurer or other similar assetsecuring insurance premium financings permitted under Section 6.01(b)(xxiv);

 

(u)           Lienssecuring judgments for the payment of money not constituting an Event ofDefault so long as such Liens are adequately bonded and any appropriate legalproceedings that may have been duly initiated for the review of such judgmenthave not been finally terminated or the period within which such proceedingsmay be initiated has not expired;

 

(v)           Liensin favor of customs and revenue authorities arising as a matter of law tosecure payment of customs duties in connection with the importation of goods inthe ordinary course of business;

 

(w)          Liens(i) of a collection bank arising under Section 4-210 of the UCC onitems in the course of collection, (ii) attaching to commodity tradingaccounts or other commodity brokerage accounts incurred in the ordinary courseof business, and (iii) in favor of banking institutions arising as amatter of law encumbering deposits (including the right of set-off) and whichare within the general parameters customary in the banking industry;

 

(x)            Liensdeemed to exist in connection with Investments in repurchase agreements permittedunder Section 6.01; provided that such Liens do not extendto any assets other than those that are the subject of such repurchase agreement;

 

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(y)           Liensencumbering reasonable customary initial deposits and margin deposits andsimilar Liens attaching to commodity trading accounts or other brokerageaccounts incurred in the ordinary course of business and not for speculativepurposes;

 

(z)            Liensthat are contractual rights of set-off (i) relating to the establishmentof depository relations with banks not given in connection with the issuance ofIndebtedness, (ii) relating to pooled deposit or sweep accounts of theParent Borrower or any of its Restricted Subsidiaries to permit satisfaction ofoverdraft or similar obligations incurred in the ordinary course of business ofthe Parent Borrower and its Restricted Subsidiaries or (iii) relating topurchase orders and other agreements entered into with customers of the ParentBorrower or any of its Restricted Subsidiaries in the ordinary course ofbusiness;

 

(aa)         Lienssecuring the Obligations and the Secured Obligations;

 

(bb)         Lienson cash deposits of the Parent Borrower and Foreign Subsidiaries subject to aCash Pooling Arrangement or otherwise over bank accounts of the Parent Borrowerand Foreign Subsidiaries maintained as part of the Cash Pooling Arrangement, ineach case securing liabilities for overdrafts of the Parents Borrower andForeign Subsidiaries participating in such Cash Pooling Arrangements;

 

(cc)         anyencumbrance or retention (including put and call agreements and rights of firstrefusal) with respect to the Equity Interests of any joint venture or similararrangement pursuant to the joint venture or similar agreement with respect tosuch joint venture or similar arrangement, provided that no suchencumbrance or restriction affects in any way the ability of the ParentBorrower or any Restricted Subsidiary to comply with Section 5.09;

 

(dd)         Lienson property subject to Sale and Lease-Back Transactions permitted hereunder andgeneral intangibles related thereto;

 

(ee)         Liensconsisting of contractual restrictions of the type described in the definitionof Restricted Cash; and

 

(ff)           otherLiens securing obligations incurred in the ordinary course of business whichobligations do not exceed $35,000,000 at any one time outstanding;

 

provided that in no event mayproperty of any Foreign Subsidiary Borrower (or its Subsidiaries) secureIndebtedness (other than Indebtedness under this Agreement and the other LoanDocuments) having an aggregate principal amount (as to such Foreign SubsidiaryBorrower and all of its Subsidiaries) in excess of $5,000,000 (other thanPermitted Liens that are permitted pursuant to clauses (d), (f) (onlywith respect to Section 6.01(b)(iv) as it relates toCapitalized Lease Obligations or purchase money indebtedness and Section 6.01(b)(xxii)),(g), (m), (p), (q), (w)(iii) and (bb)above).

 

“Person” shall mean any natural person,corporation, business trust, joint venture, association, company, limitedliability company, partnership, Governmental Authority or other entity.

 

“Platform” shall have the meaning assigned tosuch term in Section 5.04

 

“Pledged Collateral” shall have the meaningassigned to such term in the Guarantee and Collateral Agreement.

 

“Potentially Restricted Revolving Credit Lender”shall mean each Revolving Credit Lender party to this Agreement which notifiesthe Administrative Agent at any time from time to time that it is unwilling tomake extensions of credit pursuant to its Revolving Credit Commitment toForeign Subsidiary Borrowers in certain jurisdictions.

 

“Preferred Stock” shall mean any EquityInterest with preferential rights of payment of dividends or upon liquidation,dissolution, or winding up.

 

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“Prepayment Asset Sale” shall mean anyDisposition, to the extent that (a) the aggregate Net Cash Proceeds of allsuch Dispositions during any fiscal year exceed $25,000,000 and (b) theaggregate Net Cash Proceeds of all such Dispositions during any five fiscalyear period exceed $50,000,000; provided, however, that the term “PrepaymentAsset Sale” shall not include any transaction permitted (or not expresslyprohibited) by Section 6.05 (other than transactions consummated inreliance on Section 6.05(o) and (p)).

 

“Pricing Certificate” shall mean a certificatedelivered pursuant to Section 5.04(c).

 

“Prime Rate” shall mean the rate of interestper annum announced from time to time by Bank of America, N.A. as its primerate in effect at its principal office in New York City; each change in thePrime Rate shall be effective as of the opening of business on the date suchchange is announced as being effective. The Prime Rate is a reference rate and does not necessarily representthe lowest or best rate actually available.

 

“Priority Hedging Obligations” means bona fidenon-speculative Hedging Obligations (i) incurred before or within 90 daysfollowing the Closing Date for the purpose of fixing the rate of interest withrespect to Indebtedness incurred under this Agreement inconnection with the Transactions or (ii) incurred for the purpose ofrenewing or extending such fixed interest rates for a period not to exceed, ona weighted average basis, the weighted average life to maturity of theunderlying Indebtedness.

 

“Property Loss Event”shall mean any event that gives rise to the receipt by the Parent Borrower orany of its Restricted Subsidiaries of any insurance proceeds or condemnationawards in respect of any equipment, fixed assets or real property (includingany improvements thereon) to replace or repair such equipment, fixed assets orreal property; provided, however, for purposes of determiningwhether a prepayment under Section 2.13(b) would be required,a Property Loss Event shall be deemed to have occurred only to the extent thatthe aggregate Net Cash Proceeds (a) of all such events during any fiscalyear exceed $25,000,000 and (b) of all such events during any five-fiscalyear period exceed $50,000,000.

 

“Pro Rata Percentage” of any Revolving CreditLender at any time shall mean the percentage of the Total Revolving CreditCommitment represented by such Lender’s Revolving Credit Commitment. In theevent the Revolving Credit Commitments shall have expired or been terminated,the Pro Rata Percentages of any Revolving Credit Lender shall be determined onthe basis of the Revolving Credit Commitments most recently in effect, givingeffect to any subsequent assignments.

 

“Public Lender” shall have the meaning assignedto such term in Section 5.04.

 

“Qualified Capital Stock” of any Person shallmean any Equity Interest of such Person that is not Disqualified Stock.

 

“Qualified Proceeds” shall mean assets that areused or useful in, or Capital Stock of any Person engaged in, a SimilarBusiness; provided that the fair market value of any such assets orCapital Stock shall be determined by the Parent Borrower in good faith.

 

“Qualified Public Offering” shall mean theissuance by the Parent Borrower or any direct or indirect parent of the ParentBorrower of its common Equity Interests in an underwritten primary publicoffering (other than a public offering pursuant to a registration statement onForm S-8) pursuant to an effective registration statement filed with theU.S. Securities and Exchange Commission in accordance with the Securities Actof 1933, as amended.

 

“Rating Agencies” shall mean Moody’s andS&P or if Moody’s or S&P or both shall not make a rating on the NewSenior Notes publicly available, a nationally recognized statistical ratingagency or agencies, as the case may be, selected by the Parent Borrower whichshall be substituted for Moody’s or S&P or both, as the case may be.

 

“Receivables Facility” shall mean any of one ormore receivables financing facilities as amended, supplemented, modified,extended, renewed, restated or refunded from time to time, the obligations ofwhich are non-recourse (except for customary representations, warranties,covenants and indemnities made in connection with such facilities) to theParent Borrower or any of its Restricted Subsidiaries (other than a ReceivablesSubsidiary)

 

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pursuantto which the Parent Borrower or any of its Restricted Subsidiaries sells theiraccounts receivable to either (A) a Person that is not a RestrictedSubsidiary or (B) a Receivables Subsidiary that in turn sells its accountsreceivable to a Person that is not a Restricted Subsidiary.

 

“Receivables Fees” shall mean distributions orpayments made directly or by means of discounts with respect to any accountsreceivable or participation interest therein issued or sold in connection with,and other fees paid to a Person that is not a Restricted Subsidiary inconnection with, any Receivables Facility.

 

“Receivables Subsidiary” shall mean anysubsidiary formed for the purpose of, and that solely engages only in one ormore Receivables Facilities and other activities reasonably related thereto.

 

“Refinanced Term Loans” shall have the meaningassigned to such term in Section 9.08(d).

 

“Refinancing Indebtedness” shall have themeaning assigned to such term in Section 6.01(b)(xii).

 

“Refunding Capital Stock” shall have themeaning set forth in Section 6.03(b)(ii).

 

“Register” shall have the meaning assigned tosuch term in Section 9.04(d).

 

“Regulation T” shall mean Regulation T ofthe Board as from time to time in effect and all official rulings and interpretationsthereunder or thereof.

 

“Regulation U” shall mean Regulation U ofthe Board as from time to time in effect and all official rulings andinterpretations thereunder or thereof.

 

“Regulation X” shall meanRegulation X of the Board as from time to time in effect and all officialrulings and interpretations thereunder or thereof.

 

“Related Business Assets” shall mean assets(other than cash or Cash Equivalents) used or useful in a Similar Business, providedthat any assets received by the Parent Borrower or a Restricted Subsidiary inexchange for assets transferred by the Parent Borrower or a RestrictedSubsidiary shall not be deemed to be Related Business Assets if they consist ofsecurities of a Person, unless upon receipt of the securities of such Person,such Person would become a Restricted Subsidiary.

 

“RelatedEntity” means (a) with respect to Madison Dearborn Partners,LLC, (i) any investment fund controlled by or under common control withMadison Dearborn Partners, LLC, any officer, director or person performing anequivalent function of the foregoing persons, or any entity controlled by anyof the foregoing Persons and (ii) any spouse or lineal descendant(including by adoption and stepchildren) of the officers and directors referredto clause (a)(i); and (b) with respect to any officer of the ParentBorrower or its subsidiaries, (i) any spouse or lineal descendant(including by adoption and stepchildren) of the officer and (ii) anytrust, corporation or partnership or other entity, in each case to the extentnot an operating company, of which an 80% or more controlling interest is heldby the beneficiaries, stockholders, partners or owners who are the officer, anyof the persons described in clause (b)(i) above or any combination of theseidentified relationships.

 

“Related Fund”shall mean, with respect to any Lender that is a fund or commingled investmentvehicle that invests in bank loans or similar extensions of credit, any otherfund that invests in bank loans or similar extensions of credit and is managedor advised by the same investment advisor as such Lender or by an Affiliate ofsuch investment advisor.

 

“Related Parties” shall mean, with respect toany specified Person, such Person’s Affiliates and the respective directors,officers, employees, trustees, agents and advisors of such Person and suchPerson’s Affiliates.

 

“Release” shall mean any release, spill,emission, leaking, dumping, injection, pouring, deposit, disposal, discharge,dispersal, leaching or migration into or through the environment.

 

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“Replacement Term Loans” shall have the meaningassigned to such term in Section 9.08(d).

 

“Required Lenders” shall mean, at any time,Lenders having Revolving Credit Exposure, unused Revolving Credit Commitments,Term Loans and Term Loan Commitments representing more than 50% of the sum ofall Revolving Credit Exposure, unused Revolving Credit Commitments, Term Loansand Term Loan Commitments at such time; provided that any Defaulting Lendershall be excluded for purposes of making a determination of Required Lenders.

** **

“Required Class Lenders” shall mean(a) with respect to any Term Loan Facility, Lenders holding more than 50%of the Term Commitments and Term Loans under such Term Loan Facility and(b) with respect to the Revolving Credit Facility, the Required RevolvingLenders.

 

“Required Revolving Lenders” shall mean, at anytime, Lenders having Revolving Credit Exposure and unused Revolving Commitmentsrepresenting more than 50% of the sum of all Revolving Credit Exposure and unusedRevolving Credit Commitments at such time; provided that any DefaultingLender shall be excluded for purposes of making a determination of RequiredRevolving Lenders.

 

“Responsible Officer” of any Person shall meanany Financial Officer or any executive vice president, senior vice president,vice president, secretary or assistant secretary of such Person and any otherofficer or similar official thereof responsible for the administration of theobligations of such Person in respect of this Agreement and, as to any documentdelivered on the Closing Date, any secretary or assistant secretary of suchPerson.

 

“Restricted Cash” shall mean cash and CashEquivalents held by the Parent Borrower and its Restricted Subsidiaries thatare contractually restricted from being distributed to the Parent Borrower,except for such restrictions that are contained in agreements governingIndebtedness permitted under Section 6.01 and that is secured bysuch cash or Cash Equivalents, or that are classified as “restricted cash” onthe consolidated balance sheet of the Parent Borrower prepared in accordancewith GAAP.

 

“Restricted Guarantor” shall mean a Guarantorthat is a Restricted Subsidiary.

 

“Restricted Investment” shall mean anInvestment other than a Permitted Investment.

 

“Restricted Payment” shall mean:

 

(a)           thedeclaration or payment of any dividend or the making of any payment ordistribution on account of the Parent Borrower’s or any Restricted Subsidiary’sEquity Interests, including any dividend or distribution payable in connectionwith any merger or consolidation other than:

 

(i)            dividends or distributions payablesolely in Equity Interests (other than Disqualified Stock) of the ParentBorrower; or

 

(ii)           dividends or distributions by aRestricted Subsidiary so long as, in the case of any dividend or distributionpayable on or in respect of any class or series of securities issued by aRestricted Subsidiary other than a Wholly-Owned Subsidiary, the Parent Borroweror a Restricted Subsidiary receives at least its pro rata share of suchdividend or distribution in accordance with its Equity Interests in such classor series of securities;

 

(b)           thepurchase, redemption, defeasance or other acquisition or retirement for valueof any Equity Interests of the Parent Borrower or any direct or indirect parentof the Parent Borrower, including in connection with any merger orconsolidation;

 

(c)           themaking of any principal payment on, or redemption, repurchase, defeasance orother acquisition or retirement for value in each case, prior to any scheduledrepayment, sinking fund payment or maturity, of any New Senior Notes or anySubordinated Indebtedness other than:

 

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(i)            Indebtedness permitted under Section 6.01(b)(vii);or

 

(ii)           the purchase, repurchase or otheracquisition of any New Senior Notes or Subordinated Indebtedness purchased inanticipation of satisfying a sinking fund obligation, principal installment orfinal maturity, in each case due within one year (or, in the case of the NewSenior Notes, 9 months) of the date of purchase, repurchase or acquisition; or

 

(d)           themaking of any Restricted Investment.

 

“Restricted Payment Applicable Amount” shallmean, at any time (the “Reference Time”), an amount equal to the sum(without duplication) of:

 

### (a)            $75,000,000;

###  

### (b)           anamount, not less than zero, determined on a cumulative basis equal to thatportion of Excess Cash Flow for each fiscal year of the Parent Borrower endedprior to the Reference Time, if any, not used or required to be used to prepaythe Term Loans; plus

###  

(c)           100% of the aggregate net cashproceeds and the fair market value, as determined in good faith by the ParentBorrower, of marketable securities or other property received by the ParentBorrower or a Restricted Subsidiary (without the issuance of additional EquityInterests in such Restricted Subsidiary) since immediately after the ClosingDate (other than (i) to the extent used to fund the Transactions and (ii) netcash proceeds to the extent such net cash proceeds have been used pursuant to Section 6.01(b)(xi)(A))from the issue or sale of:

 

(i)      (A)          EquityInterests of the Parent Borrower, including Treasury Capital Stock, butexcluding cash proceeds and the fair market value, as determined in good faithby the Parent Borrower, of marketable securities or other property receivedfrom the sale of:

 

(x)           EquityInterests to members of management, directors or consultants of the ParentBorrower, Restricted Subsidiaries and any direct or indirect parent company ofthe Parent Borrower, after the Closing Date to the extent such amounts havebeen applied to Restricted Payments made in accordance with Section 6.03(b)(iv);and

 

(y)           DesignatedPreferred Stock; and

 

(B)          to theextent such net cash proceeds or other property are actually contributed to thecapital of the Parent Borrower or any Restricted Subsidiary (without the issuanceof additional Equity Interests of such Restricted Subsidiary), Equity Interestsof the Parent Borrower’s direct or indirect parent companies (excludingcontributions of the proceeds from the sale of Designated Preferred Stock ofsuch companies or contributions to the extent such amounts have been applied toRestricted Payments made in accordance with Section 6.03(b)(iv));or

 

(ii)     debt of the Parent Borrower or anyRestricted Subsidiary that has been converted into or exchanged for such EquityInterests of the Parent Borrower or a direct or indirect parent company of theParent Borrower; or

 

(iii)    Disqualified Stock of the Parent Borrower orany Restricted Subsidiary that has been converted into or exchanged forQualified Capital Stock of the Parent Borrower;

 

provided,**however,**that this paragraph(c) shall not include the proceeds from (w) Refunding CapitalStock, (x) Equity Interests or convertible debt securities sold to theParent Borrower or a Restricted Subsidiary, as the case may be,(y) Disqualified Stock or debt securities that have been converted into DisqualifiedStock or (z) Excluded Contributions; plus

 

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(d)           100% of the aggregate amount of cashand the fair market value, as determined in good faith by the Parent Borrower,of marketable securities or other property contributed to the capital of theParent Borrower following the Closing Date (other than (i) net cashproceeds to the extent utilized pursuant to Section 6.01(b)(xi),(ii) to the extent applied to fund the Transactions, (iii) by aRestricted Subsidiary and (iv) any Excluded Contributions); plus

 

(e)           100% of the aggregate amount receivedin cash and the fair market value, as determined in good faith by the ParentBorrower, of marketable securities or other property received by the Parent Borroweror a Restricted Subsidiary by means of:

 

(i)            the sale or other disposition (otherthan to the Parent Borrower or a Restricted Subsidiary) of, or interest,returns, profits, distribution, income or similar amounts in respect of,Restricted Investments made by the Parent Borrower or its RestrictedSubsidiaries and repurchases and redemptions of such Restricted Investmentsfrom the Parent Borrower or its Restricted Subsidiaries and repayments of loansor advances, and releases of guarantees, which constitute RestrictedInvestments by the Parent Borrower or its Restricted Subsidiaries, in each caseafter the Closing Date; or

 

(ii)           the sale or other disposition (otherthan to the Parent Borrower or a Restricted Subsidiary) of the stock of anUnrestricted Subsidiary (other than to the extent the Investment in suchUnrestricted Subsidiary was made by the Parent Borrower or a RestrictedSubsidiary pursuant to Section 6.03(b)(vii) or to the extentsuch Investment constituted a Permitted Investment) or a dividend ordistribution from an Unrestricted Subsidiary after the Closing Date; plus

 

(f)            in the case of the redesignation ofan Unrestricted Subsidiary as a Restricted Subsidiary after the Closing Date,the fair market value of the Investment in such Unrestricted Subsidiary, asdetermined by the Parent Borrower in good faith or if such fair market valuemay exceed $35,000,000, in writing by an Independent Financial Advisor, at thetime of the redesignation of such Unrestricted Subsidiary as a RestrictedSubsidiary, other than an Unrestricted Subsidiary to the extent the Investmentin such Unrestricted Subsidiary was made by the Parent Borrower or a RestrictedSubsidiary pursuant to Section 6.03(b)(vii) or to the extentsuch Investment constituted a Permitted Investment.

 

“Restricted Subsidiary” shall mean, at anytime, each direct and indirect subsidiary of the Parent Borrower (including anyForeign Subsidiary) that is not then an Unrestricted Subsidiary; provided,however, that upon the occurrence of an Unrestricted Subsidiary ceasingto be an Unrestricted Subsidiary, such subsidiary shall be included in thedefinition of “Restricted Subsidiary”.

 

“Revolving Commitment Increase” shall have themeaning assigned to such term in Section 2.24(a).

 

“Revolving Commitment Increase Lender” shallhave the meaning assigned to such term in Section 2.24(b).

 

“Revolving Credit Borrowing” shall mean aBorrowing comprised of Revolving Loans.

 

“Revolving Credit Commitment” shall mean, withrespect to each Lender, the commitment of such Lender to make Revolving Loans(and acquire participations in Letters of Credit and Swingline Loans) hereunderas set forth on Schedule 2.01, or in the Assignment and Acceptancepursuant to which such Lender assumed its Revolving Credit Commitment, asapplicable, as the same may be (a) reduced from time to time pursuant to Section 2.09or 2.21(a) and (b) reduced or increased from time to timepursuant to assignments by or to such Lender pursuant to Section 9.04.

 

“Revolving Credit Exposure” shall mean, withrespect to any Lender at any time, the aggregate principal amount at such timeof all outstanding Revolving Loans of such Lender, plus the aggregateamount at such time of such Lender’s L/C Exposure, plus the aggregateamount at such time of such Lender’s Swingline Exposure.

 

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“Revolving Credit Lender” shall mean a Lenderwith a Revolving Credit Commitment or any Revolving Credit Exposure.

 

“Revolving Credit Maturity Date” shall meanJune 29, 2013.

 

“Revolving Loans” shall mean the revolvingloans made by the Lenders to the Borrowers pursuant to Section 2.01(c).

 

“S&P” shall mean Standard &Poor’s, a division of The McGraw-Hill Companies, Inc., and any successorthereto.

 

“Sale and Lease-Back Transaction” shall meanany arrangement providing for the leasing by the Parent Borrower or any of itsRestricted Subsidiaries of any real or tangible personal property, whichproperty has been or is to be sold or transferred by the Parent Borrower orsuch Restricted Subsidiary to a third Person in contemplation of such leasing.

 

“SEC “ shall mean the U.S. Securities andExchange Commission.

 

“Section 5.04 Financials” shall mean thefinancial statements delivered, or required to be delivered, pursuant to Sections 5.04(a) and(b).

 

“Secured Indebtedness” shall mean anyIndebtedness of the Parent Borrower or any of its Restricted Subsidiariessecured by a Lien.

 

“Secured Obligations” shall mean allobligations defined as “Obligations” in the Guarantee and Collateral Agreementand the other Security Documents.

 

“Secured Parties” shall mean the “SecuredParties” as defined in the Guarantee and Collateral Agreement.

 

“Securities Act” shall mean the Securities Actof 1933, as amended, and the rules and regulations of the SEC promulgatedthereunder.

 

“Security Documents” shall mean the Mortgages,Guarantee and Collateral Agreement, the Intellectual Property SecurityAgreements and the Perfection Certificate and each of the other instruments anddocuments executed and delivered with respect to the Collateral pursuant to Section 5.09,5.10 or 9.08(g).

 

“Similar Business” shall mean any business andany services, activities or businesses incidental, or directly related orsimilar to, or complementary to any line of business engaged in by the Companyand its subsidiaries on the Closing Date or any business activity that is areasonable extension, development or expansion thereof or ancillary thereto.

 

 “Solvent”shall mean, with respect to any Person, (a) on a going concern basis theconsolidated fair value of the assets of such Person and its subsidiaries, at afair valuation, will exceed their consolidated debts and liabilities, subordinated,contingent or otherwise; (b) the consolidated present fair saleable valueof the property of such Person and its subsidiaries will be greater than theamount that will be required to pay the probable liability of theirconsolidated debts and other liabilities, subordinated, contingent orotherwise, as such debts and other liabilities become absolute and matured;(c) such Person and its subsidiaries will be able to pay theirconsolidated debts and liabilities, subordinated, contingent or otherwise, assuch debts and liabilities become absolute and matured; and (d) suchPerson and its subsidiaries, taken as a whole, will not have unreasonably smallcapital with which to conduct the business in which they are engaged.  The amount of contingent liabilities at anytime shall be computed as the amount that, in the light of all the facts andcircumstances existing at such time, represents the amount that can reasonablybe expected to become an actual or matured liability.

 

“SPC” shall have the meaning assigned to suchterm in Section 9.04(i).

 

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

 

“Specified Default” shall have the meaningassigned to such term in Section 2.13(b).

 

“Sponsor” shall mean Madison Dearborn Partners,LLC and each of its Affiliates but not including, however, any operatingportfolio companies of any of the foregoing.

 

“Sponsor Management Agreement” shall meancollectively (a) the management agreement between certain managementcompanies associated with the Sponsor and the Parent Borrower and any direct orindirect parent company, and (b) the MDP Unit Purchase Agreement, in eachcase, as in effect on the Closing Date.

 

“Statutory Reserves” shall mean a fraction(expressed as a decimal), the numerator of which is the number one and thedenominator of which is the number one minus the aggregate of the maximumreserve percentages (including any marginal, special, emergency or supplementalreserves) applicable on the interest rate determination date (expressed as adecimal) established by the Board and applicable to any member of bank of theFederal Reserve System in respect of Eurocurrency Liabilities (as defined inRegulation D of the Board).

 

“Sterling”and the sign “£”eachmeans the lawful money of United Kingdom.

 

“Subordinated Indebtedness” shall mean anyIndebtedness of either Borrower and the Guarantors which is by its termssubordinated in right of payment to the Obligations of the Parent Borrower orsuch Guarantor, as applicable.

 

“subsidiary” shall mean, with respect to anyPerson (herein referred to as the “parent”), any corporation,partnership, limited liability company, association or other business entity ofwhich securities or other ownership interests representing more than 50% of theordinary voting power or more than 50% of the general partnership interestsare, at the time any determination is being made, owned or held by the parent,one or more subsidiaries of the parent or a combination thereof.  Unless otherwise specified, “subsidiary”shall mean any subsidiary of the Parent Borrower.

 

“Subsidiary Guarantor” shall mean eachsubsidiary listed on Schedule 1.01(a), and each other subsidiarythat is or becomes a party to the Guarantee and Collateral Agreement pursuantto Section 5.09 or otherwise, excluding (a) any ExcludedSubsidiary and (b) any Foreign Subsidiary.

 

“Successor Company” shall have the meaningassigned to such term in Section 6.04(a)(i).

 

“Successor Person” shall have the meaningassigned to such term in Section 6.04(c)(i).

 

“Survey” shall mean a survey of any MortgagedProperty (and all improvements thereon) which is (a) (i) prepared bya surveyor or engineer licensed to perform surveys in the jurisdiction wheresuch Mortgaged Property is located, (ii) dated (or redated) not earlierthan six months prior to the date of delivery thereof unless there shall haveoccurred within six months prior to such date of delivery any material exteriorconstruction on the site of such Mortgaged Property or any material easement,right of way or other interest in the Mortgaged Property has been granted orbecome effective through operation of law or otherwise with respect to suchMortgaged Property which, in either case, can be depicted on a survey, in whichevents, as applicable, such survey shall be dated (or redated) within areasonable period after the completion of such construction or if suchconstruction shall not have been completed as of such date of delivery, notearlier than 20 days prior to such date of delivery, or after the grant oreffectiveness of any such easement, right of way or other interest in theMortgaged Property, (iii) certified by the surveyor (in a mannerreasonably acceptable to the Administrative Agent) to the Administrative Agent,the Collateral Agent and the Title Company, (iv) complying in all respectswith the minimum detail requirements of the American Land Title Association assuch requirements are in effect on the date of preparation of such survey and(v) sufficient for the Title Company to remove all standard surveyexceptions from the title insurance policy (or

 

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commitment)relating to such Mortgaged Property and issue the endorsements of the typerequired by Section 5.10 or (b) otherwise reasonablyacceptable to the Collateral Agent.

 

 “SwinglineCommitment” shall mean the commitment of the Swingline Lender to make loanspursuant to Section 2.22, as the same may be reduced from time totime pursuant to Section 2.09.

 

“Swingline Exposure” shall mean, at any time,the aggregate principal amount at such time of all outstanding SwinglineLoans.  The Swingline Exposure of anyRevolving Credit Lender at any time shall equal its Pro Rata Percentage of theaggregate Swingline Exposure at such time.

 

“Swingline Lender” shall mean Bank of America,N.A., acting through any of its Affiliates or branches, in its capacity aslender of Swingline Loans hereunder.

 

“Swingline Loan” shall mean any loan made bythe Swingline Lender pursuant to Section 2.22.

 

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

 

“Target Material Adverse Effect” shall meanmeans any******event****,** change oreffect that is materially adverse to the business, properties, assets,financial condition or results of operations of the Company and itssubsidiaries taken as a whole; provided, however, that to the extent any **event****,**change oreffect is caused by or results from any of the following, it shall not be takeninto account in determining whether there has been or will be a “TargetMaterial Adverse Effect”:  (i) anyannouncement relating to the sale of the Company (including losses orthreatened losses of the relationships of the Company or any of itssubsidiaries with customers, distributors or suppliers), actions contemplatedby the Merger Agreement or the performance of obligations thereunder,(ii) the identity of Holdings or any of its Affiliates as the acquirer ofthe Company, (iii) changes affecting the United States or European economyor financial or securities markets as a whole or changes that are the result offactors generally affecting the industries in which the Company and itssubsidiaries conduct their business, (iv) any change in any applicableLaws or accounting standards or principles or interpretation thereof after thedate hereof, (v) the availability or cost of financing to Holdings orMerger Sub and (vi) the commencement, occurrence or continuation of anywar, armed hostilities or acts of terrorism involving or affecting the UnitedStates of America or any part thereof, except, in the case of the foregoing clause(iii) only, to the extent such changes do not materiallydisproportionately impact the Company and its subsidiaries, taken as a whole, relativeto other companies in the industries in which the Company and its subsidiariesconduct their business.

 

“Taxes” shall mean any and all present orfuture taxes, levies, imposts, duties, deductions, charges, liabilities orwithholdings imposed by any Governmental Authority.

 

“Tender Offer” shall have the meaning assignedto such term in the preamble.

 

“Term Loan” shall mean each of the Dollar TermLoan, the Euro Term Loans and, if applicable, any Incremental Term Loans.

 

“Term Loan Borrowing” shall mean a Dollar TermLoan Borrowing or a Euro Term Loan Borrowing.

 

“Term Loan Commitment” shall mean each of theDollar Term Loan Commitments and the Euro Term Loan Commitments.

 

“Term Loan Lender” shall mean a Lender with aTerm Loan Commitment or an outstanding Term Loan.

 

“Term Loan Maturity Date” shall meanJune 29, 2014.

 

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“Termination Date” shall mean the date upon whichall Commitments have terminated, no Letters of Credit are outstanding (or ifLetters of Credit remain outstanding, as to which an L/C Backstop exists), andthe Loans and L/C Exposure, together with all interest, Fees and othernon-contingent Obligations, have been paid in full in cash.

 

“Title Company” shall mean any title insurancecompany as shall be retained by the Parent Borrower and reasonably acceptableto the Administrative Agent.

 

“Total Assets” shall mean total assets of theParent Borrower and its Restricted Subsidiaries on a consolidated basisprepared in accordance with GAAP, shown on the most recent balance sheet of theParent Borrower and its Restricted Subsidiaries as may be expressly stated.

 

“Total Revolving Credit Commitment” shall mean,at any time, the aggregate amount of the Revolving Credit Commitments, as ineffect at such time. The Total Revolving Credit Commitment as of the ClosingDate is $250,000,000.

 

“Total Net Leverage Ratio”shall mean the ratio of (i) (A) Consolidated Indebtedness of the Parent Borrower and itsRestricted Subsidiaries on such date minus (B) the amount of cash and CashEquivalents in excess of any Restricted Cash that would be stated on thebalance sheet of the Parent Borrower and its Restricted Subsidiaries (otherthan Foreign Subsidiaries) and held by the Parent Borrower and its RestrictedSubsidiaries (other than Foreign Subsidiaries) as of such date ofdetermination, as determined in accordance with GAAP, minus (C) cash of Foreign Subsidiaries of the ParentBorrower in an amount equal to the greater of (x) the aggregate amount ofConsolidated Indebtedness of Foreign Subsidiaries and (y) 60% of the cashand Cash Equivalents reflected on the consolidated balance sheet of the ParentBorrower delivered to the Administrative Agent as of the last day of therelevant determination period to (ii) EBITDAof the Parent Borrower and its Restricted Subsidiaries for the most recentlyended four fiscal quarters ending immediately prior to such date for whichSection 5.04 Financials have been delivered to the Administrative Agent.

 

“Transaction Expenses” shall mean any fees,costs or expenses incurred or paid by the Sponsor, the Parent Borrower (or anydirect or indirect parent of the Parent Borrower) or any of its subsidiaries inconnection with the Transactions (including expenses in connection with hedgingtransactions), the Sponsor Management Agreement, this Agreement and the otherLoan Documents and the transactions contemplated hereby and thereby.

 

“Transactions” shall mean, collectively,(a) the Merger, (b) the Equity Investment, (c) the issuance ofthe New Senior Notes, (d) the issuance of the New Mezzanine Notes,(e) the funding of the Loans and the other transactions contemplated bythis Agreement and the other Loan Documents, (f) the consummation of therefinancing of the Existing Debt as contemplated by Sections 4.02(l),(g) the Tender Offer, and (h) the payment of Transaction Expenses.

 

“Treasury Capital Stock” shall have the meaningset forth in Section 6.03(b)(ii).

 

“Type”, when used in respect of any Loan orBorrowing, shall refer to the Rate by reference to which interest on such Loanor on the Loans comprising such Borrowing is determined. For purposes hereof,the term “Rate” shall mean the Adjusted LIBO Rate, the Alternate BaseRate, the BA Rate and the Canadian Base Rate.

 

“Uniform Commercial Code” or “UCC” meansthe Uniform Commercial Code as in effect in any applicable jurisdiction fromtime to time.

 

“Unrestricted Subsidiary” shall mean:

 

(a)           anysubsidiary of the Parent Borrower which at the time of determination is an UnrestrictedSubsidiary (as designated by the Parent Borrower, as provided in Section 5.11);and

 

(b)           anysubsidiary of an Unrestricted Subsidiary.

 

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“USA PATRIOT Act” shall mean The Uniting andStrengthening America by Providing Appropriate Tools Required to Intercept andObstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56(signed into law October 26, 2001)).

 

“Weighted Average Life to Maturity” shall mean,when applied to any Indebtedness, Disqualified Stock or Preferred Stock, as thecase may be, at any date, the quotient obtained by dividing:

 

(a)           thesum of the products of the number of years from the date of determination tothe date of each successive scheduled principal payment of such Indebtedness orredemption or similar payment with respect to such Disqualified Stock orPreferred Stock multiplied by the amount of such payment; by

 

(b)           thesum of all such payments.

 

“Wholly-Owned Subsidiary” of any Person shallmean a subsidiary of such Person, 100% of the Equity Interests of which (otherthan directors’ qualifying shares) shall be owned by such Person or by one ormore Wholly-Owned Subsidiaries of such Person.

 

“Withdrawal Liability” shall mean liability toa Multiemployer Plan as a result of a complete or partial withdrawal from suchMultiemployer Plan, as such terms are defined in Part I of Subtitle E ofTitle IV of ERISA.

 

SECTION 1.02.      ***Terms Generally***.  The definitions in Section 1.01shall apply equally to both the singular and plural forms of the terms defined.  Whenever the context may require, any pronounshall 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 theword “shall”; and the words “asset” and “property” shall be construed as havingthe same meaning and effect and to refer to any and all tangible and intangibleassets and properties, including cash, securities, accounts and contractrights.  The words “herein”, “hereof” and“hereunder”, and words of similar import, shall be construed to refer to thisAgreement in its entirety and not to any particular provision of this Agreementunless the context shall otherwise require. All references herein to Articles, Sections, paragraphs, clauses,subclauses, Exhibits and Schedules shall be deemed references to Articles,Sections, paragraphs, clauses and subclauses of, and Exhibits and Schedules to,this Agreement unless the context shall otherwise require.  Except as otherwise expressly providedherein, the Total Net Leverage Ratio (and the financial definitions usedtherein) shall be construed in accordance with GAAP, as in effect on theClosing Date; provided, however, that if the Parent Borrowernotifies the Administrative Agent that the Parent Borrower wishes to amend theTotal Net Leverage Ratio or any financial definition used therein to implementthe effect of any change in GAAP or the application thereof occurring after theClosing Date on the operation thereof (or if the Administrative Agent notifiesthe Parent Borrower that the Required Lenders wish to amend the Total NetLeverage Ratio or any financial definition used therein for such purpose), thenthe Parent Borrower and the Administrative Agent shall negotiate in good faithto amend the Total Net Leverage Ratio or the definitions used therein (subjectto the approval of the Required Lenders) to preserve the original intentthereof in light of such changes in GAAP; provided that alldeterminations made pursuant to the Total Net Leverage Ratio or any financialdefinition used therein shall be determined on the basis of GAAP as applied andin effect immediately before the relevant change in GAAP or the applicationthereof became effective, until the Total Net Leverage Ratio or such financialdefinition is amended.  All accountingterms not specifically or completely defined herein shall be construed inconformity with, and all financial data required to be submitted pursuant tothis Agreement shall be prepared in conformity with, GAAP, as in effect fromtime to time.

 

SECTION 1.03.      ***Classification of Loans and Borrowings***.  For purposes of this Agreement, Loans may beclassified and referred to by Class (e.g., a “Revolving Loan”) orby Type (e.g., a “Eurodollar Loan”) or by Class and Type (e.g.,a “Eurodollar Revolving Loan”). Borrowings also may be classified and referredto by Class (e.g., a “Revolving Credit Borrowing”) or by Type (e.g.,a “Eurodollar Borrowing”) or by Class and Type (e.g., a “EurodollarRevolving Credit Borrowing”).

 

SECTION 1.04.      ***Rounding***.  The calculation of any financial ratios underthis Agreement shall be calculated by dividing the appropriate component by theother component, carrying the result to one place more than

 

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thenumber of places by which such ratio is expressed herein and rounding theresult up or down to the nearest number (with a rounding-down if there is nonearest number).

 

SECTION 1.05.      ***References to Agreements and Laws***.  Unless otherwise expressly provided herein,(a) all references to documents, instruments and other agreements(including the Loan Documents and organizational documents) shall be deemed toinclude all subsequent amendments, restatements, amendments and restatements,supplements and other modifications thereto, but only to the extent that suchamendments, restatements, amendments and restatements, supplements and othermodifications are not prohibited by any Loan Document and (b) referencesto any law, statute, rule or regulation shall include all statutory andregulatory provisions consolidating, amending, replacing, supplementing orinterpreting such law.

 

SECTION 1.06.      ***Times of Day***.  Unless otherwise specified, all referencesherein to times of day shall be references to Eastern time (daylight orstandard, as applicable).

 

SECTION 1.07.      ***Timing of Payment or Performance***.  When the payment of any obligation or the performanceof any covenant, duty or obligation is stated to be due or performance requiredon a day which is not a Business Day, the date of such payment or performanceshall extend to the immediately succeeding Business Day and such extension oftime shall be reflected in computing interest or fees, as the case may be; providedthat with respect to any payment of interest on or principal of EurodollarLoans, if such extension would cause any such payment to be made in the nextsucceeding calendar month, such payment shall be made on the immediatelypreceding Business Day.

 

SECTION 1.08.      ***Letter of Credit Amounts***.  Unless otherwise specified herein, the amountof a Letter of Credit at any time shall be deemed to be the Dollar Equivalentof the stated amount of such Letter of Credit in effect at such time.

 

SECTION 1.09.      ***Exchange Rate; Currency Equivalents Generally***.  For purposes of determining compliance withthe provisions of this Agreement on any date of determination (including theissuance, amendment or extension of a Letter of Credit), any AlternativeCurrency will be converted to dollars on the basis of the Spot Rate (as definedbelow) as determined by the Administrative Agent at such time.  Notwithstanding the foregoing, for purposesof determining compliance with Article II and Sections 6.01,6.02 and 6.03 of this Agreement with respect to any amount ofIndebtedness or Investment denominated in an Alternative Currency, no Defaultshall be deemed to have occurred solely as a result of changes in rates ofexchange occurring after the time such Indebtedness or Investment is incurredor made; provided that, for the avoidance of doubt, the foregoingprovisions of this Section 1.09 shall otherwise apply to suchArticle and such Sections, including with respect to determining whetherany Indebtedness or Investment (not previously incurred or made on any date)may be incurred or made under such Article and such Sections.  For purposes of this Section 1.09,the “Spot Rate” for a currency means the rate determined by the AdministrativeAgent to be the rate quoted by the Person acting in such capacity as the spotrate for the purchase by such Person of such currency with another currencythrough its principal foreign exchange trading office at approximately11:00 a.m. on the date two Business Days prior to the date of suchdetermination; provided that the Administrative Agent may obtain suchspot rate from another financial institution designated by the AdministrativeAgent if the Person acting in such capacity does not have as of the date ofdetermination a spot buying rate for any such currency.

 

SECTION 1.10.      ***Alternative Currencies***.  Each provision of this Agreement shall besubject to such reasonable changes of construction as the Administrative Agentmay from time to time specify with the Parent Borrower’s consent toappropriately reflect a change in currency of any country and any relevantmarket conventions or practices relating to such change in currency.

 

SECTION 1.11.      ***Pro Forma Calculations***.  For purposes of determining whether anyaction is otherwise permitted to be taken hereunder, the Total Net LeverageRatio shall be calculated as follows:

 

(a)           In the event that the Parent Borroweror any Restricted Subsidiary (i) incurs, redeems, retires or extinguishesany Indebtedness or (ii) issues or redeems Disqualified Stock or PreferredStock subsequent to the commencement of the period for which such ratio isbeing calculated but prior to or

 

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simultaneouslywith the event for which the calculation of such ratio is made (a “RatioCalculation Date”), then such ratio shall be calculated giving pro formaeffect to such incurrence, redemption, retirement or extinguishment ofIndebtedness, or such issuance or redemption of Disqualified Stock or PreferredStock, as if the same had occurred at the beginning of the applicablefour-quarter period.

 

(b)           For purposes of making thecomputation referred to above, Investments, acquisitions, dispositions, mergers,amalgamations, consolidations and discontinued operations (as determined inaccordance with GAAP), in each case with respect to an operating unit of abusiness made (or committed to be made pursuant to a definitive agreement)during the four-quarter reference period or subsequent to such reference periodand on or prior to or simultaneously with the relevant Ratio Calculation Date,and other operational changes that the Parent Borrower or any of its RestrictedSubsidiaries has determined to make and/or made during the four-quarterreference period or subsequent to such reference period and on or prior to orsimultaneously with such Ratio Calculation Date shall be calculated on a proforma basis in accordance with GAAP assuming that all such Investments,acquisitions, dispositions, mergers, amalgamations, consolidations,discontinued operations and other operational changes had occurred on the firstday of the four-quarter reference period. If since the beginning of such periodany Person that subsequently became a Restricted Subsidiary or was merged withor into the Parent Borrower or any of its Restricted Subsidiaries since thebeginning of such period shall have made any Investment, acquisition,disposition, merger, amalgamation, consolidation, discontinued operation oroperational change, in each case with respect to an operating unit of a business,that would have required adjustment pursuant to this definition, then suchratio shall be calculated giving pro forma effect thereto for such period as ifsuch Investment, acquisition, disposition, merger, consolidation, discontinuedoperation or operational change had occurred at the beginning of the applicablefour-quarter period.

 

(c)           For purposes of this Section 1.11,whenever pro forma effect is to be given to any Investment, acquisition,disposition, merger, amalgamation, consolidation, discontinued operation oroperational change, the pro forma calculations shall be made in good faith by aresponsible financial or accounting officer of the Parent Borrower. Any suchpro forma calculation may include adjustments appropriate, in the reasonabledetermination of the Parent Borrower as set forth in an Officer’s Certificate,to reflect (i) operating expense reductions and other operatingimprovements or synergies reasonably expected to result from any acquisition,amalgamation, merger or operational change (including, to the extentapplicable, from the Transactions) and (ii) all adjustments of the natureused in connection with the calculation of “Adjusted EBITDA” as set forth infootnote (5) to the “Summary Historical and Pro Forma Financial Data”under “Offering Circular Summary” in the offering circular for the New SeniorNotes to the extent such adjustments, without duplication, continue to beapplicable to such four-quarter period; provided that such operatingexpense reductions and other operating improvements or synergies are reasonablyidentifiable and factually supportable and otherwise comply with thelimitations set forth in the definition of “EBITDA”.

 

# ARTICLE II

#  

# ***The Credits***

#  

SECTION 2.01.      ***Commitments***.  Subject to the terms and conditions hereinset forth, each Lender agrees, severally and not jointly, (a) to make aDollar Term Loan to the Parent Borrower on the Closing Date in a principalamount not to exceed its Dollar Term Loan Commitment, (b) to make a EuroTerm Loan to the Parent Borrower on the Closing Date in a principal amountnot to exceed its Euro Term Loan Commitment and (c) to make RevolvingLoans to the Borrowers, at any time and from time to time on and after theClosing Date, and until the earlier of the Revolving Credit Maturity Date andthe termination of the Revolving Credit Commitment of such Lender in accordancewith the terms hereof, in an aggregate principal amount at any time outstandingthat will not result in such Lender’s Revolving Credit Exposure exceedingsuch Lender’s Revolving Credit Commitment; provided that (x) noRevolving Credit Lender shall make any Revolving Loans in any AlternativeCurrency if, after giving effect to the making of such Revolving Loan, the sumof the Dollar Equivalent of the then outstanding Revolving Loans in AlternativeCurrencies and the then outstanding L/C Exposure in Alternative Currencieswould exceed $85,000,000  (the “AlternativeCurrency Sublimit”) and (y) the aggregate amount of Revolving Loans (the “ForeignSubsidiary

 

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Borrower Sublimit”)made to Foreign Subsidiary Borrowers shall at no time exceed $50,000,000 (itbeing understood that the Administrative Agent shall calculate the DollarEquivalent of the then outstanding Revolving Credit Loans in any AlternativeCurrency and the then outstanding L/C Exposure with respect to any Letters ofCredit issued in an Alternative Currency on the date on which the ParentBorrower has given the Administrative Agent a Borrowing Request with respect toany Revolving Loan for purposes of determining compliance with this clause(c)); and provided, further, that the aggregate principalamount of Revolving Loans and Swingline Loans made on the Closing Date shallnot exceed $30,000,000. Within the limits set forth in clause (c) ofthe preceding sentence and subject to the terms, conditions and limitations setforth herein, the Borrowers may borrow, pay or prepay and reborrow RevolvingLoans.  Amounts paid or prepaid inrespect of Term Loans may not be reborrowed.

 

SECTION 2.02.      ***Loans***.

 

### (a)           Each Loan (otherthan Swingline Loans) shall be made as part of a Borrowing consisting of Loansmade by the Lenders ratably in accordance with their applicable Commitments; provided,however, that the failure of any Lender to make any Loan shall notrelieve any other Lender of its obligation to lend hereunder (it being understood,however, that no Lender shall be responsible for the failure of any otherLender to make any Loan required to be made by such other Lender).  Except for Loans deemed made pursuant to Section 2.02(f) andsubject to Section 2.22, the Loans comprising any Borrowing shallbe in an aggregate principal amount that is not less than the lesser of(i)  the Minimum Currency Threshold or (ii) equal to the remainingavailable balance of the applicable Commitments.

###  

### (b)           Subject to Sections 2.02(e),2.08 and 2.15, (i) all Loans denominated in dollars (otherthan Swingline Loans) shall be made as ABR Loans or Eurodollar Loans,(ii) all Loans denominated in Canadian Dollars shall be made as CanadianBase Rate Loans or BA Rate Loans; provided,however, that all suchLoans pursuant to the foregoing subclauses (i) and (ii) shall bemade as ABR Loans or Canadian Base Rate Loans, as applicable, unless, subjectto Section 2.15, the Borrowing Request specifies that all or aportion thereof shall be Eurodollar Loans or BA Rate Loans, as applicable,(iii) all Swingline Loans shall be dollar denominated and shall be made asABR Loans, and (iv) all Loans denominated in any currency other than dollarsor Canadian Dollars shall be made as Eurodollar Loans, as the Parent Borrowermay request pursuant to Section 2.03.  Each Lender may at its option make anyEurodollar Loan or BA Rate Loan by causing any domestic or foreign branch orAffiliate of such Lender to make such Loan; provided that any exerciseof such option shall not affect the obligation of the relevant Borrower torepay such Loan in accordance with the terms of this Agreement.  Borrowings of more than one Type may beoutstanding at the same time; provided, however, that theBorrowers shall not be entitled to request any Borrowing that, if made, wouldresult in more than fifteen Eurodollar Borrowings outstanding hereunder at anytime.

###  

### (c)           Except with respectto Loans deemed made pursuant to Section 2.02(f) and subjectto Sections 2.03 and 2.22, each Lender shall make each Loanto be made by it hereunder on the proposed date thereof by wire transfer ofimmediately available funds to such account in New York City as theAdministrative Agent may designate not later than 11:00 a.m. and the AdministrativeAgent shall promptly wire transfer the amounts so received to an account designatedby the relevant Borrower in the applicable Borrowing Request or, if a Borrowingshall not occur on such date because any condition precedent herein specifiedshall not have been met, return the amounts so received to the respectiveLenders.

###  

### (d)           Unless theAdministrative Agent shall have received notice from a Lender prior to the dateof any Borrowing that such Lender will not make available to the AdministrativeAgent such Lender’s portion of such Borrowing, the Administrative Agent mayassume that such Lender has made such portion available to the AdministrativeAgent on the date of such Borrowing in accordance with paragraph (c) aboveand the Administrative Agent may, in reliance upon such assumption, makeavailable to the relevant Borrower on such date a corresponding amount. If theAdministrative Agent shall have so made funds available then, to the extentthat such Lender shall not have made such portion available to theAdministrative Agent, such Lender and the relevant Borrower severally agree torepay to the Administrative Agent forthwith on demand such corresponding amounttogether with interest thereon, for each day from the date such amount is madeavailable to the relevant Borrower to but excluding the date such amount is repaidto the Administrative Agent at (i) in the case of the Borrowers, a rateper annum equal to the interest rate applicable to the Loans comprising suchBorrowing at the time and (ii) in the case of such Lender, for the firstsuch day, the Federal Funds Effective Rate, and for each day thereafter, theAlternate Base Rate plus the

 

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### Applicable Percentage for ABR Revolving Loans.  If such Lender shall repay to theAdministrative Agent such corresponding amount, such amount shall constitutesuch Lender’s Loan as part of such Borrowing for purposes of this Agreement and(x) the relevant Borrower’s obligation to repay the Administrative Agentsuch corresponding amount pursuant to this Section 2.02(d) shallcease and (y) if the relevant Borrower pays such amount to the AdministrativeAgent, the amount so paid shall constitute a repayment of such Borrowing bysuch amount.

###  

### (e)           Notwithstanding anyother provision of this Agreement, the Borrowers shall not be entitled to requestany Eurodollar Borrowing or BA Rate Borrowing if the Interest Period requestedwith respect thereto would end after the Revolving Credit Maturity Date or theTerm Loan Maturity Date, as applicable.

###  

### (f)            If the relevantIssuing Bank shall not have received from the relevant Borrower the payment requiredto be made by Section 2.23(e) within the time specified insuch Section, such Issuing Bank will promptly notify the Administrative Agentof the L/C Disbursement and the Administrative Agent will promptly notify eachRevolving Credit Lender of such L/C Disbursement and its Pro Rata Percentagethereof (and, in the case of any L/C Disbursement made in an AlternativeCurrency, calculated using the Dollar Equivalent of such L/C Disbursement, asdetermined on the date on which such L/C Disbursement was made by the relevantIssuing Bank).  Each Revolving CreditLender shall pay by wire transfer of immediately available funds in dollars tothe Administrative Agent not later than 2:00 p.m. on such date (or, ifsuch Revolving Credit Lender shall have received such notice later than 12:00(noon) on any day, not later than 10:00 a.m. on the immediately followingBusiness Day), an amount equal to such Lender’s Pro Rata Percentage of such L/CDisbursement as determined above****(it beingunderstood that such amount shall be deemed to constitute an ABR Revolving Loanof such Lender and such payment shall be deemed to have reduced the L/CExposure), and the Administrative Agent will promptly pay to the relevantIssuing Bank amounts so received by it from the Revolving Credit Lenders.  The Administrative Agent will promptly pay tothe Issuing Bank any amounts received by it from the relevant Borrower pursuantto Section 2.23(e) prior to the time that any Revolving CreditLender makes any payment pursuant to this paragraph (f); any suchamounts received by the Administrative Agent thereafter will be promptlyremitted by the Administrative Agent to the Revolving Credit Lenders that shallhave made such payments and to such Issuing Bank, as their interests mayappear. If any Revolving Credit Lender shall not have made its Pro RataPercentage of such L/C Disbursement available to the Administrative Agent asprovided above, such Lender and the relevant Borrower severally agrees to payinterest on such amount, for each day from and including the date such amountis required to be paid in accordance with this paragraph to but excluding thedate such amount is paid, to the Administrative Agent for the account of therelevant Issuing Bank at (i) in the case of the relevant Borrower, a rateper annum equal to the interest rate applicable to Revolving Loans pursuant to Section 2.06(a),and (ii) in the case of such Lender, for the first such day, the FederalFunds Effective Rate****(or, in thecase of amounts owed in an Alternative Currency, at the respective IssuingBank’s customary rate for interbank advances denominated in such AlternativeCurrency), and for each day thereafter, the interest rate applicable to ABRRevolving Loans.

###  

SECTION 2.03.      ***Borrowing Procedure***.  In order to request a Borrowing (other than aSwingline Loan  or a deemed Borrowingpursuant to Section 2.02(f), as to which this Section 2.03shall not apply), the relevant Borrower shall notify the Administrative Agentof such request by telephone (a) in the case of a Eurodollar Borrowing ora BA Rate Borrowing, not later than 12:30 p.m. 3 Business Days (or 4Business Days in the case of a Special Notice Currency) before a proposedBorrowing and (b) in the case of an ABR Borrowing or Canadian Base RateBorrowing, not later than 12:30 p.m. 1 Business Day before a proposedBorrowing.  Each such telephonic requestshall be irrevocable, shall be confirmed promptly by hand delivery or fax tothe Administrative Agent of a written Borrowing Request and shall specify thefollowing information:  (i) whetherthe Borrowing then being requested is to be a Dollar Term Loan Borrowing, EuroTerm Loan Borrowing or a Revolving Credit Borrowing, and whether such Borrowingis to be a Eurodollar Borrowing or an ABR Borrowing or, in the case of aBorrowing in Canadian Dollars, whether such Borrowing is to be a BA Rate Borrowingor a Canadian Base Rate Borrowing; (ii) the date of such Borrowing (whichshall be a Business Day); (iii) the number and location of the account towhich funds are to be disbursed; (iv) the amount and currency of such Borrowing;and (v) if such Borrowing is to be a Eurodollar Borrowing or a BA RateBorrowing, the initial Interest Period or Interest Periods with respect theretoand (vi) the Revolving Credit Exposure (after giving effect to the proposedBorrowing); provided, however, that notwithstanding any contraryspecification in any Borrowing Request, each requested Borrowing shall complywith the requirements set forth in Section 2.02. If no election asto the Type of Borrowing is specified in any such notice, then the requestedBorrowing shall be an ABR Borrowing or, in the case of a Borrowing in CanadianDollars, a

 

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CanadianBase Rate Borrowing. If no Interest Period with respect to any EurodollarBorrowing is specified in any such notice, then the relevant Borrower shall bedeemed to have selected an Interest Period of 1 month’s duration. The AdministrativeAgent shall promptly advise the applicable Lenders of any notice given pursuantto this Section 2.03 (and the contents thereof), and of eachLender’s portion of the requested Borrowing.

 

SECTION 2.04.      ***Evidence of Debt; Repayment of Loans***.

 

### (a)           (i) The ParentBorrower hereby unconditionally promises to pay to the Administrative Agent forthe account of each Lender, (x)  the principal amount of each Term Loan ofsuch Lender as provided in Section 2.11 and (y) on theRevolving Credit Maturity Date, the then unpaid principal amount of eachRevolving Loan of such Lender made to the Parent Borrower and (ii) eachForeign Subsidiary Borrower hereby unconditionally promises to pay to theAdministrative Agent for the account of each Lender on the Revolving CreditMaturity Date, the then unpaid principal amount of each Revolving Loan made bysuch Lender to such Foreign Subsidiary Borrower. Each Borrower hereby promisesto pay to the Swingline Lender on the Revolving Credit Maturity Date the thenunpaid principal amount of each Swingline Loan made to such Borrower.

###  

### (b)           Each Lender shallmaintain in accordance with its usual practice an account or accounts evidencingthe indebtedness of the relevant Borrower to such Lender resulting from eachLoan made by such Lender from time to time, including the amounts of principaland interest payable and paid to such Lender from time to time under thisAgreement.

###  

### (c)           The AdministrativeAgent shall maintain accounts in which it will record (i) the relevant Borrower,(ii) the amount of each Loan made hereunder, the Class and Typethereof and, if applicable, the Interest Period applicable thereto,(iii) the amount of any principal or interest due and payable or to becomedue and payable from the relevant Borrower to each Lender hereunder and(iv) the amount of any sum received by the Administrative Agent hereunderfrom the Borrowers or any Guarantor and each Lender’s share thereof.

###  

### (d)           The entries made inthe accounts maintained pursuant to paragraphs (b) and (c) aboveshall be primafacie evidence of theexistence and amounts of the obligations therein recorded; provided, however, that the failure of anyLender or the Administrative Agent to maintain such accounts or any errortherein shall not in any manner affect the obligations of the Borrowers torepay the Loans in accordance with the terms of this Agreement.

###  

### (e)           Any Lender mayrequest that Loans made by it hereunder be evidenced by a promissory note insubstantially the form of Exhibit G-1 or Exhibit G-2,as applicable, with appropriate insertions and deletions (each, a “Note”).  In such event, the relevant Borrower shallexecute and deliver to such Lender a Note payable to such Lender and itspermitted registered assigns. Notwithstanding any other provision of this Agreement, in the event anyLender shall request and receive such a Note, the interests represented by suchNote shall at all times (including after any assignment of all or part of suchinterests pursuant to Section 9.04) be represented by one or moreNotes payable to the payee named therein or its registered assigns.

###  

SECTION 2.05.      ***Fees***.

 

### (a)           The Parent Borroweragrees to pay to each Revolving Credit Lender, through the AdministrativeAgent, on the last Business Day of March, June, September andDecember of each year, commencing September 30, 2007, and oneach date on which the Revolving Credit Commitment of such Lender shall expireor be terminated as provided herein, a commitment fee (a “Commitment Fee”)equal to the Applicable Percentage per annum on the daily unused amount of theRevolving Credit Commitment of such Lender during the preceding quarter (orother period commencing with the Closing Date or ending with the RevolvingCredit Maturity Date or the date on which the Revolving Credit Commitment ofsuch Lender shall be terminated); provided any Commitment Fee accruedwith respect to the Revolving Credit Commitment of a Defaulting Lender duringthe period prior to the time such Lender became a Defaulting Lender and unpaidat such time shall not be payable by the Parent Borrower so long as such Lendershall be a Defaulting Lender, except to the extent that such Commitment Feeshall otherwise have been due and payable by the Parent Borrower prior to suchtime; and provided, further, that no Commitment Fee shall accrueon the Revolving Credit Commitment of a Defaulting Lender so long as suchLender shall be a Defaulting Lender.

 

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### (b)           The Parent Borroweragrees to pay to the Administrative Agent, for its own account, the administrativefees set forth in the Fee Letter at the times and in the amounts specifiedtherein (the “Administration Fee”).

###  

### (c)           The relevantBorrower agrees to pay (i) to each Revolving Credit Lender, through theAdministrative Agent, on the last Business Day of March, June, September andDecember of each year, commencing September 30, 2007, and on thedate on which the Revolving Credit Commitment of such Lender shall beterminated as provided herein, a fee (an “L/C Participation Fee”)calculated on such Lender’s Pro Rata Percentage of the daily aggregate undrawnamounts of all outstanding Letters of Credit) during the preceding quarter (orshorter period commencing with the Closing Date or ending with the RevolvingCredit Maturity Date or the date on which all Letters of Credit have beencanceled or have expired and the Revolving Credit Commitments of all Lendersshall have been terminated) at a rate per annum equal to the ApplicablePercentage from time to time used to determine the interest rate on EurodollarRevolving Credit Borrowings minus the Issuing Bank Fees referred to in clause (ii)(A) below,and (ii) to the Issuing Bank (A) with respect to each outstandingLetter of Credit a fronting fee that shall accrue at a rate of 0.125% per annum(or such lesser rate as shall be separately agreed upon between the relevantBorrower and the Issuing Bank) on the undrawn amount of such Letter of Credit,payable quarterly in arrears on the last day of March, June, September andDecember of each year, commencing September 30, 2007, and uponexpiration of the applicable Letter of Credit or any earlier termination of theRevolving Credit Commitment and (B) within 30 days after demand thereforthe Issuing Bank’s standard fees with respect to the issuance, amendment,renewal or extension of any Letter of Credit issued by such Issuing Bank orprocessing of drawings thereunder (the fees in this clause (ii) beingcollectively the “Issuing Bank Fees”).

###  

### (d)           All Fees shall becomputed on the basis of the actual number of days elapsed in a year of 360 days,and shall be paid, in immediately available funds, to the Administrative Agentfor distribution, if and as appropriate, among the Lenders and the IssuingBank, except that the Issuing Bank Fees shall be paid directly to the IssuingBank.  Once paid, none of the Fees shallbe refundable under any circumstances absent manifest error.

###  

SECTION 2.06.      ***Interest on Loans***.

 

### (a)           Subject to theprovisions of Section 2.07, the Loans comprising eachABR Borrowing, including each Swingline Loan, shall bear interest at arate per annum equal to the Alternate Base Rate plus the Applicable Percentagein effect from time to time.

###  

### (b)           Subject to theprovisions of Section 2.07, the Loans comprising each Canadian BaseRate Borrowing shall bear interest at a rate per annum equal to the CanadianBase Rate plus the Applicable Percentage in effect from time to time.

###  

### (c)           Subject to theprovisions of Section 2.07, Loans comprising a Eurodollar Borrowingshall bear interest at a rate per annum equal to the Adjusted LIBO Rate for theInterest Period in effect for such Borrowing plus the Applicable Percentage ineffect from time to time.

###  

### (d)           Subject to theprovisions of Section 2.07, Loans comprising a BA Rate Borrowingshall bear interest at a rate per annum equal to the BA Rate for the InterestPeriod in effect for such Borrowing plus the Applicable Percentage in effectfrom time to time.

###  

### (e)           Interest, includinginterest payable pursuant to Section 2.07, shall be computed on thebasis of the actual number of days elapsed over a year of 360 days (other thancomputations of interest for ABR Loans, Canadian Base Rate Loans and Loansdenominated in Sterling which shall be made by the Administrative Agent on the basis of the actual number of dayselapsed over a year of 365 or 366 day, as applicable) and shall be calculatedfrom and including the date of the relevant Borrowing to, but excluding, thedate of repayment thereof.  Interest oneach Loan shall be payable on the Interest Payment Dates applicable to suchLoan, except as otherwise provided in this Agreement. The applicable AlternateBase Rate, Adjusted LIBO Rate, Canadian Base Rate or BA Rate for each InterestPeriod or day within an Interest Period, as the case may be, shall be determinedby the Administrative Agent, and such determination shall be conclusive absentmanifest error.

 

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SECTION 2.07.      ***Default Interest***.  If an Event of Default underSection 7.01(b) or (c) shall have occurred and shall becontinuing, by acceleration or otherwise, then, upon the request of theRequired Lenders until the related defaulted amount shall have been paid infull, to the extent permitted by law, such overdue amount shall bear interest(after as well as before judgment), payable on demand, (a) in the case ofprincipal of a Loan, at the rate otherwise applicable to such Loan pursuant to Section 2.06plus 2.00% per annum and (b) in all other cases, at a rate per annum equalto the rate that would be applicable to an ABR Revolving Loan plus 2.00% perannum.

 

SECTION 2.08.      ***Alternate Rate of Interest***

 

### (a)           .  In the event, and on each occasion, that(i) the Administrative Agent shall have reasonably determined thatdeposits in the principal amounts and denominations of the Loans comprisingsuch Borrowing are not generally available in the London interbank market, orthat the rates at which such deposits are being offered in the London interbankmarket will not adequately and fairly reflect the cost to any participatingLender of making or maintaining its Eurodollar Loan during such InterestPeriod, or that reasonable means do not exist for ascertaining the AdjustedLIBO Rate or BA Rate, as applicable, for such Interest Period or (ii) theRequired Lenders of any Class of Loans notify the Administrative Agent that the Adjusted LIBORate or the BA Rate for any Interest Period will not adequately reflect thecost to the Lenders in such Class of making or maintaining such Loans inthe applicable currency for such Interest Period, the Administrative Agentshall, as soon as practicable thereafter, give written or fax notice of suchdetermination to the Parent Borrower and the Lenders. In the event of any suchdetermination, until the Administrative Agent shall have advised the ParentBorrower and the participating Lenders that the circumstances giving rise tosuch notice no longer exist (which the Administrative Agent agrees to givepromptly after such circumstances no longer exist), (x) each affectedEurodollar Loan denominated in dollars shall automatically, on the last day ofthe current Interest Period for such Loan, convert into a ABR Loan and theobligations of the Lenders to make Adjusted LIBO Rate Loans denominated indollars or to convert Alternate Base Rate Loans into Adjusted LIBO Rate Loansshall be suspended until the AdministrativeAgent shall notify the Parent Borrower that the Required Lenders ofsuch affected Class of Loans have determined that the circumstances causingsuch suspension no longer exist, (y) each BA Rate Loan shall automatically, onthe last day of the current Interest Period for such Loan, convert into aCanadian Base Rate Loan and the obligations of the Revolving Lenders to make BARate Loans or to convert Canadian Base Rate Loans into BA Rate Loans shall besuspended until the Administrative Agent shall notify the Parent Borrower thatthe Required Revolving Lenders have determined that the circumstances causingsuch suspension no longer exist and (z) each Eurodollar Loan that isdenominated in a currency other than dollars, the affected Eurodollar Loansshall be made or continued, as the case may be, as Eurodollar Loans with anInterest Period of one month and the amount of interest payable in respect ofany such Eurodollar Loan shall be determined in accordance with the following provisions:

###  

#### (i)           ifthe Administrative Agent so requires, within five days of such notification theAdministrative Agent and the applicableBorrower, as applicable, shall enter into negotiations with a view to agreeingon a substitute basis for determining the rate of interest (a “Substitute InterestRate”) which may be applicable to affected Eurodollar Loans of suchBorrower in the future and any such Substitute Interest Rate that is agreedshall take effect in accordance with its terms and be binding on each partyhereto; provided that the Administrative Agent may not agree on any suchSubstitute Interest Rate without the prior consent of the Required Lenders ofthe affected Class of Loans;

####  

#### (ii)          ifno Substitute Interest Rate is agreed pursuant to clause (i) above, anyaffected Eurodollar Loan shall bear interest during the subsequent InterestPeriod at the rate per annum otherwise applicable to Eurodollar Loans undersuch Credit Facility, except that in the place of the Adjusted LIBO Rate, theAdministrative Agent shall use the cost to the applicable Lender (as conclusivelycertified by such Lender in a certificate to the Administrative Agent and theapplicable Borrower and expressed as a rate per annum) and containing a generaldescription of the source selected of funding such Loan from whatever source itshall reasonably select; and

####  

#### (iii)         ifthe Administrative Agent has required a Borrower to enter into negotiationspursuant to clause (i) above, the Administrative Agent may (acting on theinstructions of the Required Lenders of the affected Class of Loans)declare that no further Eurodollar Loans in the applicable currency shall beconverted, continued or made unless a Substitute Interest Rate has been agreedby the applicable Borrower and the Administrative Agent within 30 days of theAdministrative Agent having so required negotiations.

 

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Each determination by the Administrative Agent underthis Section 2.08 shall be conclusive absent manifest error.

 

SECTION 2.09.      ***Termination and Reduction of Commitments***.

 

### (a)           The Term LoanCommitments shall automatically terminate upon the making of the Term Loans onthe Closing Date.  The Revolving CreditCommitments and the Swingline Commitment shall automatically terminate on theRevolving Credit Maturity Date.  The L/CCommitment shall automatically terminate on the earlier to occur of(i) the termination of the Revolving Credit Commitments and (ii) thedate 5 days prior to the Revolving Credit Maturity Date, unless otherwiseagreed by each Issuing Bank and the Parent Borrower.

###  

### (b)           Upon at least 3Business Days’ prior written or fax notice to the Administrative Agent, theParent Borrower may at any time in whole permanently terminate, or from time totime in part permanently reduce, the Revolving Credit Commitments or theSwingline Commitment; provided, however, that (i) eachpartial reduction of the Revolving Credit Commitments shall be in an aggregateamount of not less than the Minimum Currency Threshold and (ii) the TotalRevolving Credit Commitment shall not be reduced to an amount that is less thanthe Aggregate Revolving Credit Exposure then in effect (after giving effect toany repayment or prepayment effected simultaneously therewith).  Any notice given by the Parent Borrowerpursuant to this Section 2.09(b) shall be irrevocable; providedthat any such notice delivered by the Parent Borrower may state that suchnotice is conditioned upon the effectiveness of other financing arrangements,in which case such notice may be revoked by the Parent Borrower (by notice tothe Administrative Agent on or prior to the specified effective date) if suchcondition is not satisfied.

###  

### (c)           Each reduction inthe Revolving Credit Commitments hereunder shall be made ratably among theLenders in accordance with their respective applicable Commitments; providedthat none of the Swingline Commitment, the L/C Commitment, the AlternativeCurrency Sublimit or the Foreign Subsidiary Borrower Sublimit shall be reducedunless the Revolving Commitment is reduced to an amount less than the SwinglineCommitment, the Letter of Credit Commitment, the Alternative Currency Sublimitor the Foreign Subsidiary Borrower Sublimit, as applicable, then in effect (andthen only to the extent of such deficit). The Borrowers shall pay to the Administrative Agent for the account ofthe Revolving Credit Lenders, on the date of each termination or reduction ofthe Revolving Credit Commitments, the Commitment Fees on the amount of theRevolving Credit Commitments so terminated or reduced accrued to but excludingthe date of such termination or reduction.

###  

SECTION 2.10.      ***Conversion and Continuation of Borrowings***.

 

The Borrowers shall have the right at any time uponprior written or fax notice (or telephone notice promptly confirmed by writtenor fax notice) to the Administrative Agent (i) not later than12:30 p.m., 1 Business Day prior to conversion, to convert any dollardenominated Eurodollar Borrowing into an ABR Borrowing or any BA Rate Borrowinginto a Canadian Base Rate Borrowing and (ii) not later than12:30 p.m., 3 Business Days prior to conversion or continuation, toconvert any ABR Borrowing into a Eurodollar Borrowing, to convert any CanadianBase Rate Borrowing into a BA Rate Borrowing, to continue any Eurodollar Borrowingas a Eurodollar Borrowing for an additional Interest Period or to continue anyBA Rate Borrowing as a BA Rate Borrowing, subject in each case to the following:

 

(w)          eachconversion or continuation shall be made pro rata among the Lenders inaccordance with the respective principal amounts of the Loans comprising theconverted or continued Borrowing;

 

(x)            ifless than all of the outstanding principal amount of any Borrowing shall beconverted or continued, then each resulting Borrowing shall satisfy thelimitations specified in Sections 2.02(a) and 2.02(b) regardingthe principal amount and maximum number of Borrowings of the relevant Type;

 

(y)           eachconversion shall be effected by each Lender and the Administrative Agent recording,for the account of such Lender, the Type of such Loan resulting from suchconversion and reducing the Loan (or portion thereof) of such Lender beingconverted by an equivalent principal amount; accrued interest on any EurodollarLoan or BA Rate Loan (or portion thereof) being converted shall be paid by therelevant Borrower at the time of conversion; and

 

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(z)            ifany Eurodollar Borrowing or BA Rate Borrowing is converted at a time other thanthe end of the Interest Period applicable thereto, the relevant Borrower shallpay, upon demand, any amounts due to the Lenders pursuant to Section 2.16.

 

Each notice pursuant to this Section 2.10shall be irrevocable (subject to Sections 2.08 and 2.15) andshall refer to this Agreement and specify (i) the identity and amount ofthe Borrowing that the relevant Borrower requests be converted or continued,(ii) whether such Borrowing is to be converted to or continued as aEurodollar Borrowing, an Alternate Base Rate Borrowing, a BA Rate Borrowing ora Canadian Base Rate Borrowing, (iii) if such notice requests aconversion, the date of such conversion (which shall be a Business Day) and(iv) if such Borrowing is to be converted to or continued as a EurodollarBorrowing or a BA Rate Borrowing, the Interest Period with respect thereto. Ifno Interest Period is specified in any such notice with respect to anyconversion to or continuation as a Eurodollar Borrowing or BA Rate Borrowing,the relevant Borrower shall be deemed to have selected an Interest Period of 1month’s duration. The Administrative Agent shall advise the Lenders of anynotice given pursuant to this Section 2.10 and of each Lender’sportion of any converted or continued Borrowing. If the relevant Borrower shallnot have given notice in accordance with this Section 2.10 tocontinue any Borrowing into a subsequent Interest Period (and shall not otherwisehave given notice in accordance with this Section 2.10 to convertsuch Borrowing), such Borrowing shall, at the end of the Interest Periodapplicable thereto (unless repaid pursuant to the terms hereof), automaticallybe converted into an Alternative Base Rate Borrowing or Canadian Base RateBorrowing.  This Section  2.10shall not apply to Swingline Loans.

 

SECTION 2.11.      ***Repayment of Term Borrowings***.

 

### (a)           The Parent Borrowershall repay to the Administrative Agent in dollars for the ratable account ofthe Dollar Term Loan Lenders on the dates and in the amounts set forth below:

 

| **Date**                 | ** ** | **Amount** | ** **  |
|--------------------------|------------|------------|-------------|
| 09/30/09                 |       | $          | 1,537,500   |   |
| 12/31/09                 |       | $          | 1,537,500   |   |
| 03/31/10                 |       | $          | 1,537,500   |   |
| 06/30/10                 |       | $          | 1,537,500   |   |
| 09/30/10                 |       | $          | 1,537,500   |   |
| 12/31/10                 |       | $          | 1,537,500   |   |
| 03/31/11                 |       | $          | 1,537,500   |   |
| 06/30/11                 |       | $          | 1,537,500   |   |
| 09/30/11                 |       | $          | 1,537,500   |   |
| 12/30/11                 |       | $          | 1,537,500   |   |
| 03/30/12                 |       | $          | 1,537,500   |   |
| 06/29/12                 |       | $          | 1,537,500   |   |
| 09/28/12                 |       | $          | 1,537,500   |   |
| 12/31/12                 |       | $          | 1,537,500   |   |
| 03/28/13                 |       | $          | 1,537,500   |   |
| 06/28/13                 |       | $          | 1,537,500   |   |
| 9/30/13                  |       | $          | 1,537,500   |   |
| 12/31/13                 |       | $          | 1,537,500   |   |
| 03/31/14                 |       | $          | 1,537,500   |   |
| 06/30/14                 |       | $          | 1,537,500   |   |
| Term Loan  Maturity Date |       | $          | 584,250,000 |   |

 

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### (b)           The Parent Borrowershall repay to the Administrative Agent in dollars for the ratable account ofthe Euro Term Loan Lenders on the dates and in the amounts set forth below:

 

| **Date**                 | ** ** | **Amount** | ** **  |
|--------------------------|------------|------------|-------------|
| 09/30/09                 |       | €     | 1,500,000   |   |
| 12/31/09                 |       | €     | 1,500,000   |   |
| 03/31/10                 |       | €     | 1,500,000   |   |
| 06/30/10                 |       | €     | 1,500,000   |   |
| 09/30/10                 |       | €     | 1,500,000   |   |
| 12/31/10                 |       | €     | 1,500,000   |   |
| 03/31/11                 |       | €     | 1,500,000   |   |
| 06/30/11                 |       | €     | 1,500,000   |   |
| 09/30/11                 |       | €     | 1,500,000   |   |
| 12/30/11                 |       | €     | 1,500,000   |   |
| 03/30/12                 |       | €     | 1,500,000   |   |
| 06/29/12                 |       | €     | 1,500,000   |   |
| 09/28/12                 |       | €     | 1,500,000   |   |
| 12/31/12                 |       | €     | 1,500,000   |   |
| 03/28/13                 |       | €     | 1,500,000   |   |
| 06/28/13                 |       | €     | 1,500,000   |   |
| 9/30/13                  |       | €     | 1,500,000   |   |
| 12/31/13                 |       | €     | 1,500,000   |   |
| 03/31/14                 |       | €     | 1,500,000   |   |
| 06/30/14                 |       | €     | 1,500,000   |   |
| Term Loan  Maturity Date |       | €     | 570,000,000 |   |

###  

### (c)           To the extent notpreviously paid, all Term Loans shall be due and payable on the Term Loan MaturityDate, together with accrued and unpaid interest on the principal amount to bepaid to but excluding the date of payment.

###  

### (d)           All repaymentspursuant to this Section 2.11 shall be subject to Section 2.16,but shall otherwise be without premium or penalty.

###  

SECTION 2.12.      ***Optional Prepayment***.

 

### (a)           The Borrowers shallhave the right at any time and from time to time to prepay any Borrowing, inwhole or in part upon prior written or fax notice by the Parent Borrower (ortelephone notice promptly confirmed by written or fax notice) to theAdministrative Agent, not later than 12:30 p.m., 3 Business Days prior tosuch prepayment in the case of Eurodollar Loans or BA Rate Loans and not laterthan 12:30 p.m., 1 Business Day prior to such prepayment in the case ofABR Loans or Canadian Base Rate Loans; provided, however, thateach partial prepayment shall be in an aggregate amount of not less than theMinimum Currency Threshold.

###  

### (b)           Optional prepaymentsof Dollar Term Loans shall be applied against the remaining scheduled installmentsof principal due in respect of the Dollar Term Loans under Section 2.11(a) inthe manner specified by the Parent Borrower or, if not so specified on or priorto the date of such optional prepayment, in direct order of maturity.  Optional prepayments of Dollar Term Loans andany dollar denominated Incremental Term Loans shall be applied ratably amongthe outstanding Dollar Term Loans and dollar denominated Incremental TermLoans.

###  

### (c)           Optional prepaymentsof Euro Term Loans shall be applied against the remaining scheduled installmentsof principal due in respect of the Euro Term Loans under Section 2.11in the manner specified by the Parent Borrower or, if not so specified on orprior to the date of such optional prepayment, in direct order ofmaturity.  Optional prepayments of EuroTerm Loans and any euro denominated Incremental Term Loans shall be appliedratably among the outstanding Euro Term Loans and euro denominated IncrementalTerm Loans.

###  

### (d)           Each notice ofprepayment shall specify the prepayment date and the principal amount of eachBorrowing (or portion thereof) to be prepaid, shall be irrevocable and shall committhe relevant Borrower to prepay such Borrowing by the amount stated therein onthe date stated therein; provided that if a notice of optional prepaymentis given in connection with a conditional notice of termination of theCommitments as contemplated by

 

55

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### Section 2.09, then such notice ofprepayment may be revoked if such notice of termination is revoked inaccordance with Section 2.09. All prepayments under this Section 2.12 shall be subject to Section 2.16but otherwise without premium or penalty. All Eurodollar Loan and BA Rate Loan prepayments under this Section 2.12shall be accompanied by accrued and unpaid interest on the principal amount tobe prepaid to but excluding the date of payment.

###  

SECTION 2.13.      ***Mandatory Prepayments***.

 

### (a)           Each Borrower shall,on the date of termination of all Revolving Credit Commitments, repay or prepayall of its outstanding Revolving Credit Borrowings and all outstandingSwingline Loans and replace or cause to be canceled (or provide an L/C Backstopor make other arrangements reasonably satisfactory to the relevant Issuing Bankwith respect to) all of its outstanding Letters of Credit.  If, after giving effect to any partial reductionof the Revolving Credit Commitments, the Aggregate Revolving Credit Exposurewould exceed the Total Revolving Credit Commitment, then the Parent Borrowershall (and to the extent the Foreign Subsidiary Borrower Sublimit would exceedthe Total Revolving Credit Commitment, then such Foreign Subsidiary Borrowershall), on the date of such reduction, repay or prepay Revolving CreditBorrowings or Swingline Loans (or a combination thereof) and, after the RevolvingCredit Borrowings and Swingline Loans shall have been repaid or prepaid in full,replace or cause to be canceled (or provide an L/C Backstop or make otherarrangements reasonably satisfactory to the relevant Issuing Bank with respectto) Letters of Credit in an amount sufficient to eliminate such excess.

###  

### (b)           Not later than thetenth Business Day following the receipt by the Parent Borrower or any of itsRestricted Subsidiaries of Net Cash Proceeds in respect of any Prepayment AssetSale or Property Loss Event, the Parent Borrower shall apply an amount equal to100% of the Net Cash Proceeds received by the Parent Borrower or any of itsRestricted Subsidiaries with respect thereto (subject to the restrictions setforth herein) to prepay outstanding Term Loans in accordance with Section 2.13(e);provided, however, that, the foregoing percentage shall bereduced to (i) 50% if the Total Net Leverage Ratio is less than or equalto 5.50 to 1.00 but greater than 4.0 to 1.00 and (ii) 0% if the Total NetLeverage Ratio is less than or equal to 4.0 to 1.00, in each case, determinedby reference to the most recently delivered Pricing Certificate at the time ofreceipt of such Net Cash Proceeds; and provided, further, that(x) if (A) prior to the date any such prepayment is required to be made,the Parent Borrower notifies the Administrative Agent of its intent to reinvestsuch Net Cash Proceeds in assets of a kind then used or usable in the businessof the Parent Borrower and its Restricted Subsidiaries (including any RelatedBusiness Assets) and (B) no Event of Default shall have occurred and be continuingat the time of such notice, and no Event of Default under clause (b), (c),(g) or (h) of Section 7.01 (each, a “SpecifiedDefault”) shall have occurred and shall be continuing at the time ofproposed reinvestment (unless, in the case of such Specified Default, suchreinvestment is made pursuant to a binding commitment entered into at a timewhen no Specified Default was continuing), then the Parent Borrower shall notbe required to prepay Term Loans hereunder in respect of such Net Cash Proceedsto the extent that such Net Cash Proceeds are so reinvested within 365 daysafter the date of receipt of such Net Cash Proceeds (or, within such 365 day period,the Parent Borrower or any of its Restricted Subsidiaries enters into a bindingcommitment to so reinvest in such Net Cash Proceeds, and such Net Cash Proceedsare so reinvested within 180 days after such binding commitment is so enteredinto) and (y) the Parent Borrower shall not be required to prepay TermLoans hereunder in respect of any such Net Cash Proceeds from any PrepaymentAsset Sale or Property Loss Event of any Foreign Subsidiary if the declarationor payment of dividends or similar distributions by that Foreign Subsidiary ofsuch Net Cash Proceeds is not at the date of determination wholly permittedwithout any prior governmental approval (which has not been obtained) or,directly or indirectly, by the operation of the terms of its charter or anyagreement, instrument, judgment, decree, order, statute, rule orgovernmental regulation applicable to that Foreign Subsidiary or itsstockholders, unless such restriction with respect to the payment of dividendsor similar distributions has been legally waived or would otherwise result inmaterially adverse tax consequences; provided, however, that (I)if any Net Cash Proceeds are not reinvested or applied as a repayment on orprior to the last day of the applicable application period, such Net CashProceeds shall be applied within 5 Business Days to the prepayment of the TermLoans as set forth above (without regard to the immediately preceding proviso)and (II) if, as a result of any Prepayment Asset Sale or Property Loss Event,the Parent Borrower would be required to make an “offer to purchase” the NewSenior Notes pursuant to the terms of the New Senior Notes Documentation or anyother Material Indebtedness, in any such case prior to the expiry of theforegoing reinvestment or repayment periods, the Parent Borrower shall applythe relevant percentage of such Net Cash Proceeds as required above by this

 

56

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### paragraph (b) to prepay Term Loans inaccordance with Section 2.13(e) on the day immediatelypreceding the date of such required “offer to purchase” (without regard to theimmediately preceding proviso).

###  

### (c)           No later than thetenth Business Day following the delivery of the Section 5.04 Financialsunder Section 5.04(a) (commencing with the fiscal year endedDecember 31, 2008), the Parent Borrower shall prepay outstanding TermLoans in accordance with Section 2.13(e) in an aggregateprincipal amount equal to the excess, if any, of (i) the applicable ECFPercentage of Excess Cash Flow for the fiscal year then ended over(ii) the aggregate principal amount of Term Loans and Revolving Loans (tothe extent accompanied by a permanent reduction of the Revolving Credit Commitments)prepaid pursuant to Section 2.12 during such fiscal year or on orprior to the date such payment is required to be made (without duplication), ineach case to the extent such prepayments are not funded with the proceeds oflong-term Indebtedness (other than revolving Indebtedness).

###  

### (d)           In the event thatthe Parent Borrower or any of its Restricted Subsidiaries shall receive NetCash Proceeds from the issuance or incurrence of Indebtedness (other than anycash proceeds from the issuance or incurrence of Indebtedness permittedpursuant to Section 6.01), the Parent Borrower shall no later thanthe third Business Day next following the receipt of such Net Cash Proceeds,apply an amount equal to 100% of such Net Cash Proceeds to prepay outstandingTerm Loans in accordance with Section 2.13(e).

###  

### (e)           Prior to therepayment in full of all Term Loans and all Obligations (other than contingentobligations) relating thereto, all other prepayments required by this Section 2.13shall be applied pro rata to the repayment of the Term Loans under each TermLoan Facility until paid in full (based on the Dollar Equivalent amount of TermLoans under each Term Loan Facility on the date of prepayment and appliedagainst the remaining scheduled installments of principal due in respect of theTerm Loans in the direct order of maturity); provided that to the extentan Event of Default then exists, such prepayment shall instead be applied inaccordance with Section 2.17(b).

###  

### (f)            Notwithstandinganything to the contrary contained in this Section 2.13 orelsewhere in this Agreement including without limitation in Section 9.08,the Parent Borrower shall have the option in its sole discretion to give theLenders with outstanding Term Loans the option to waive their pro rata share ofa mandatory prepayment of Term Loans which is to be made pursuant to Section 2.13(b),(c) or (d) (each such repayment a “Waivable MandatoryPrepayment”) upon the terms and provisions set forth in this Section 2.13(f).  If the Parent Borrower elects to exercise theoption referred to in the immediately preceding sentence the Parent Borrowershall give to the Administrative Agent written notice of its intention to givethe Lenders the right to waive a Waivable Mandatory Prepayment including insuch notice the aggregate amount of such proposed prepayment not later than12:30 p.m. five Business Days prior to the date of the proposed prepaymentwhich notice the Administrative Agent shall promptly forward to all Term LoanLenders indicating in such notice the amount of such prepayment to be appliedto each such Lender’s outstanding Term Loans. The Parent Borrower’s offer to permit the Term Loan Lenders to waive anysuch Waivable Mandatory Prepayment may apply to all or part of such prepayment,provided that any offer to waive part of such prepayment must be made ratablyto the Term Loan Lenders (based on the Dollar Equivalent amount of Term Loansunder each Term Loan Facility on the date of prepayment).  In the event that any such Term Loan Lenderdesires to waive its pro rata share of such Lender’s right to receive any suchWaivable Mandatory Prepayment in whole or in part such Lender shall so advisethe Administrative Agent no later than 4:00 p.m. on the date which is twoBusiness Days after the date of such notice from the Administrative Agent andthe Administrative Agent shall promptly thereafter notify the Parent Borrowerthereof which notice shall also include the amount such Lender desires toreceive in respect of such prepayment. If any Term Loan Lender does not reply to the Administrative Agentwithin such two Business Day period such Lender will be deemed not to havewaived any part of such prepayment.  Ifany Term Loan Lender does not specify an amount it wishes to receive suchLender will be deemed to have accepted 100% of its share of suchprepayment.  In the event that any suchLender waives all or part of its share of any such Waivable MandatoryPrepayment the Parent Borrower shall retain 100% of the amount so waived bysuch Lender.  Notwithstanding anything tothe contrary contained above if one or more Term Loan Lenders waives its rightto receive all or any part of any Waivable Mandatory Prepayment but less thanall the Lenders with outstanding Term Loans waive in full their right toreceive 100% of the total Waivable Mandatory Prepayment otherwise required withrespect to the Term Loans, then the amount actually applied to the repayment ofTerm Loans of Lenders which have waived all or any part of their right toreceive 100% of such prepayment shall be applied to each then outstandingBorrowing of Term Loans on a pro rata basis so that each

 

57

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### Lender with outstanding Term Loans shall aftergiving effect to the application of the respective repayment maintain the samepercentage as determined for such Lender but not the same percentage that theother Term Loan Lenders hold and not the same percentage held by such Lenderprior to prepayment of each Borrowing of Term Loans which remains outstandingafter giving effect to such application. Notwithstanding anything to the contrary Term Loan Lenders shall nothave the right to waive mandatory prepayments under this Section 2.13except as set forth in this Section 2.13(f).

###  

SECTION 2.14.      ***Reserve Requirements; Change in Circumstances***.

 

### (a)           Notwithstanding anyother provision of this Agreement, if any Change in Law shall impose, modify ordeem applicable any reserve, special deposit or similar requirement againstassets of, deposits with or for the account of or credit extended by any Lenderor any Issuing Bank (except any such reserve requirement which is reflected inthe Adjusted LIBO Rate) or shall impose on such Lender or such Issuing Bank orthe London interbank market any other condition affecting this Agreement or EurodollarLoans made by such Lender or any Letter of Credit or participation therein, andthe result of any of the foregoing shall be to increase the cost to such Lenderor such Issuing Bank of making or maintaining any Eurodollar Loan or increasethe cost to any Lender of issuing or maintaining any Letter of Credit orpurchasing or maintaining a participation therein or to reduce the amount ofany sum received or receivable by such Lender or such Issuing Bank hereunder(whether of principal, interest or otherwise) by an amount deemed by suchLender or such Issuing Bank to be material, then the relevant Borrower will payto such Lender or such Issuing Bank, as the case may be, upon demand suchadditional amount or amounts as will compensate such Lender or such IssuingBank, as the case may be, for such additional costs incurred or reductionsuffered.

###  

### (b)           If any Lender or anyIssuing Bank shall have determined that any Change in Law regarding capitaladequacy has or would have the effect of reducing the rate of return on suchLender’s or such Issuing Bank’s capital or on the capital of such Lender’s orsuch Issuing Bank’s holding company, if any, as a consequence of this Agreementor the Loans made or participations in Loans purchased by such Lender pursuanthereto or the Letters of Credit issued by such Issuing Bank pursuant hereto toa level below that which such Lender or such Issuing Bank or such Lender’s orsuch Issuing Bank’s holding company could have achieved but for such Change inLaw (taking into consideration such Lender’s or such Issuing Bank’s policiesand the policies of such Lender’s or such Issuing Bank’s holding company withrespect to capital adequacy) by an amount deemed by such Lender or such IssuingBank to be material, then the relevant Borrower shall pay to such Lender orsuch Issuing Bank, as the case may be, such additional amount or amounts aswill compensate such Lender or such Issuing Bank or such Lender’s or such IssuingBank’s holding company for any such reduction suffered.

###  

### (c)           A certificate of aLender or an Issuing Bank setting forth the amount or amounts necessary tocompensate such Lender or such Issuing Bank or its holding company, as applicable,as specified in paragraph (a) or (b) above shallbe delivered to the Parent Borrower, shall describe the applicable Change inLaw, the resulting costs incurred or reduction suffered (including acalculation thereof), certifying that such Lender is generally charging suchamounts to similarly situated borrowers and shall be conclusive absent manifesterror. The relevant Borrower shall pay such Lender or such Issuing Bank, asapplicable, the amount shown as due on any such certificate delivered by itwithin 30 days after its receipt of the same.

###  

### (d)           Failure or delay onthe part of any Lender or any Issuing Bank to demand compensation for anyincreased costs or reduction in amounts received or receivable or reduction inreturn on capital shall not constitute a waiver of such Lender’s or suchIssuing Bank’s right to demand such compensation; provided that therelevant Borrower shall not be under any obligation to compensate any Lender orany Issuing Bank under paragraph (a) or (b) abovewith respect to increased costs or reductions with respect to any period priorto the date that is 180 days prior to such request; providedfurther,that the foregoing limitation shall not apply to any increased costs or reductionsarising out of the retroactive application of any Change in Law within such180-day period.  The protection of thisSection shall be available to each Lender and the respective Issuing Bankregardless of any possible contention of the invalidity or inapplicability ofthe Change in Law that shall have occurred or been imposed; providedthat if, after the payment of any amounts by the Borrowers under this Section,any Change in Law in respect of which a payment was made is thereafterdetermined to be invalid or inapplicable to the relevant

 

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### Lender or Issuing Bank, then such Lender or IssuingBank shall, within 30 days after such determination, repay any amounts paid toit by the Borrowers hereunder in respect of such Change in Law.

###  

### (e)           Notwithstandinganything in this Section 2.14 to the contrary, this Section 2.14shall not apply to any Change in Law with respect to Taxes, which shall begoverned exclusively by Section 2.20.

###  

SECTION 2.15.      ***Change in Legality***.

 

### (a)           Notwithstanding anyother provision of this Agreement, if any Change in Law shall make itunlawful for any Lender to make or maintain any Eurodollar Loan or BA Rate Loanor to give effect to its obligations as contemplated hereby with respect to anyEurodollar Loan or BA Rate Loan, then, by written notice to the Parent Borrowerand to the Administrative Agent:

###  

#### (i)           suchLender may declare that dollar denominated Eurodollar Loans will not thereafter(for the duration of such unlawfulness) be made by such Lender hereunder (or becontinued for additional Interest Periods) and ABR Loans will not thereafter(for such duration) be converted into Eurodollar Loans, whereupon any requestfor a Eurodollar Borrowing (or to convert an ABR Borrowing to a EurodollarBorrowing or to continue a Eurodollar Borrowing for an additional InterestPeriod) shall, as to such Lender only, be deemed a request for an ABR Loan (ora request to continue an ABR Loan as such for an additional Interest Period orto convert a Eurodollar Loan into an ABR Loan, as the case may be), unless suchdeclaration shall be subsequently withdrawn; and

####  

#### (ii)          suchLender may require that all outstanding Eurodollar Loans made by such Lendershall be converted to ABR Loans, in which event all such Eurodollar Loans shallbe automatically converted to ABR Loans as of the effective date of such noticeas provided in paragraph (b) below.

####  

In the event any Lender shall exercise its rightsunder clause (i) or (ii) above, all payments andprepayments of principal that would otherwise have been applied to repay theEurodollar Loans that would have been made by such Lender or the convertedEurodollar Loans of such Lender shall instead be applied to repay the ABR Loansmade by such Lender in lieu of, or resulting from the conversion of, suchEurodollar Loans.

 

### (b)           For purposes of thisSection 2.15, a notice to the Parent Borrower by any Lender shallbe effective as to each Eurodollar Loan made by such Lender, if lawful, on thelast day of the Interest Period then applicable to such Eurodollar Loan; in allother cases such notice shall be effective on the date of receipt by the ParentBorrower.  Such Lender shall withdrawsuch notice promptly following any date on which it becomes lawful for suchLender to make and maintain Eurodollar Loans or give effect to its obligationsas contemplated hereby with respect to any Eurodollar Loan.

###  

SECTION 2.16.      ***Indemnity***.  The relevant Borrower shall indemnify eachLender against any loss or expense that such Lender may sustain or incur as aconsequence of (a) any event, other than a default by such Lender in theperformance of its obligations hereunder, which results in (i) such Lenderreceiving or being deemed to receive any amount on account of the principal ofany Eurodollar Loan or BA Rate Loan prior to the end of the Interest Period ineffect therefor, (ii) the conversion of any Eurodollar Loan to an ABRLoan, any BA Rate Loan to a Canadian Base Rate Loan or the conversion of theInterest Period with respect to any Eurodollar Loan or any BA Rate Loan, ineach case other than on the last day of the Interest Period in effect therefor,or (iii) any Eurodollar Loan to be made by such Lender (including anyEurodollar Loan or any BA Rate Loan to be made pursuant to a conversion orcontinuation under Section 2.10) not being made after notice ofsuch Loan shall have been given by the relevant Borrower hereunder other thanby operation of Section 2.08 (any of the events referred to in this clause (a) beingcalled a “Breakage Event”) or (b) any default in the making of anypayment or prepayment required to be made hereunder.  In the case of any Breakage Event, such lossshall include an amount equal to the excess, as reasonably determined by suchLender, of (i) its cost of obtaining funds for the Eurodollar Loan or BARate Loan that is the subject of such Breakage Event for the period from thedate of such Breakage Event to the last day of the Interest Period in effect(or that would have been in effect) for such Loan over (ii) the amount ofinterest likely to be realized by such Lender in redeploying the funds releasedor not utilized by reason of such Breakage Event for such period (exclusive ofany loss of anticipated profits).  Acertificate of any Lender setting forth any amount or amounts

 

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whichsuch Lender is entitled to receive pursuant to this Section 2.16shall be delivered to the Parent Borrower and shall be conclusive absent manifesterror.

 

SECTION 2.17.      ***Pro Rata Treatment; Intercreditor Agreements***.

 

### (a)           ****Except as provided below inthis Section 2.17 and as required under Section 2.13, 2.14,2.15, 2.16, 2.20 or 2.21, each Borrowing, eachpayment or prepayment of principal of any Borrowing, each payment of intereston the Loans, each payment of the Commitment Fee and the L/C Participation Fee,each reduction of the Revolving Credit Commitments and each conversion of anyBorrowing to or continuation of any Borrowing as a Borrowing of any Type shallbe allocated pro rata among the Lenders in accordance with their respectiveapplicable Commitments (or, if such Commitments shall have expired or beenterminated, in accordance with the respective principal amounts of theirrespective applicable outstanding Loans). For purposes of determining the available Revolving Credit Commitmentsof the Lenders at any time (but subject to the last sentence ofSection 2.05(a)), each outstanding Swingline Loan shall be deemed to haveutilized the Revolving Credit Commitments of the Lenders (including thoseLenders which shall not have made Swingline Loans) pro rata in accordance withsuch respective Revolving Credit Commitments. In addition, in computing such Lender’s portion of any Borrowing to bemade hereunder, the Administrative Agent may, in its discretion, round eachLender’s percentage of such Borrowing to the next higher or lower whole dollaramount.****

### ** **

### ****(b)           Notwithstandinganything to the contrary contained in this Agreement, any payment or otherdistribution (whether from proceeds of collateral or any other source, whetherin the form of cash, securities or otherwise, and whether made by any LoanParty or in connection with any exercise of remedies by the AdministrativeAgent or any Lender) made or applied in respect of any of the Obligationsduring the existence of an Event of Default or during or in connection withInsolvency Proceedings involving any Loan Party (or any plan of liquidation,distribution or reorganization in connection therewith), shall be made orapplied, as the case may be, in the following order of priority (withhigher priority Obligations to be paid in full prior to any payment orother distribution in respect of lower priority Obligations): (i) *first*, to payment of that portionof the Obligations constituting fees, indemnities, expenses and other amounts,including attorney fees, payable to the Administrative Agent in its capacity assuch and the Issuing Banks in their capacity as such (ratably among theAdministrative Agent and the Issuing Banks in proportion to the respectiveamounts described in this clause *first* payableto them); (ii) *second*, topayment of that portion of the Obligations constituting fees, indemnities andother amounts (other than principal and interest) payable to the Lenders,including attorney fees (ratably among such Lenders in proportion to therespective amounts described in this clause s*econd*payable to them); (iii) *third*, topayment of that portion of the Obligations constituting accrued and unpaidinterest (including any default interest) on the Revolving Loans,Swingline Loans and L/C Exposure (ratably among such Lenders in proportion tothe respective amounts described in this clause *third*payable to them), including interest accruing after the filing or commencementof Insolvency Proceedings in respect of any Loan Party, whether or not anyclaim for post-filing or post-petition interest is or would be allowed,allowable or otherwise enforceable in any such Insolvency Proceedings;(iv) *fourth*, to the Administrative Agent forthe account of the Issuing Banks, to cash collateralize any L/C Exposure thenoutstanding; (v) *fifth*, topayment of that portion of the Obligations constituting unpaid principal of theRevolving Loans, Swingline Loans and L/C Exposure (including any terminationpayments and any accrued and unpaid interest thereon) (ratably among suchLenders in proportion to the respective amounts described in this clause *fifth* held by them) and amounts constituting PriorityHedging Obligations; (vi) *sixth*, topayment of that portion of the Obligations constituting accrued and unpaidinterest (including any default interest) on the Term Loans (ratably amongsuch Lenders in proportion to the respective amounts described in this clause s*ixth* payable to them), including interest accruing after thefiling or commencement of any Insolvency Proceedings in respect of any LoanParty, whether or not any claim for post-filing or post-petition interestis or would be allowed, allowable or otherwise enforceable inany such Insolvency Proceedings; (vii) *seventh*,to payment of that portion of the Obligations constituting unpaid principal ofthe Term Loans (ratably among such Lenders in proportion to the respectiveamounts described in this clause *seventh* held bythem) and amounts constituting Nonpriority Hedging Obligations; and(viii) *last,*****************in the case of proceeds of collateral, the balance,if any, thereof, after all of the Obligations (including, without limitation,all Obligations in respect of LC Exposure but****excluding anycontingent obligations****) have been paid in full, to the Borrower or as otherwise required byApplicable Law.  Each Lender agrees thatthe provisions of this Section 2.17 (including, without limitation,the priority of the Obligations as set forth herein) constitute anintercreditor agreement among them for value received that is independent of anyvalue****

**** ****

****60****

----

**** ****

### ****received from the Loan Parties,and that such agreement shall be enforceable as against each Lender, including,without limitation, in any Insolvency Proceedings in respect of any Loan Party,to the same extent that such agreement is enforceable under applicablenon-bankruptcy law (including, without limitation, pursuant toSection 510(a) of the U.S. federal Bankruptcy Code or any comparableprovision of applicable insolvency law), and that, if any Lender receives anypayment or distribution in respect of any Obligation (including, withoutlimitation, in connection with any Insolvency Proceedings or any plan ofliquidation, distribution or reorganization therein) to which such Lender isnot entitled in accordance with the priorities set forth in this Section 2.17,such amount shall be held in trust by such Lender for the benefit of the Personor Persons entitled to such payment or distribution hereunder, and promptlyshall be turned over by such Lender to the Administrative Agent fordistribution to the Person or Persons entitled to such payment or distributionin accordance with this Section 2.17.****

### **** ****

### (c)           Each Lender and LoanParty acknowledges that, because of, among other things, their differing rightsand priorities established pursuant to this Section 2.17, theObligations in respect of the Revolving Loans, Swingline Loans and L/C Exposureare materially different from the those in respect of the Term Loans and mustbe separately classified in for voting and other purposes in any InsolvencyProceedings with respect to any Loan Party. In addition, in the event there isany Disgorged Recovery in respect of any Lender’s Revolving Loans, SwinglineLoans or L/C Exposure in any Insolvency Proceedings of any Loan Party, suchRevolving Loans, Swingline Loans and L/C Exposure shall be deemed to beoutstanding as if such Disgorged Recovery had never been received by suchLender, and each Lender agree that the intercreditor agreements and prioritiesset forth in this Section 2.17 shall be enforced in accordance withtheir terms in respect of such Revolving Loans, Swingline Loans or L/CExposure, including, without limitation, for purposes of the allocation ofpayments and distributions made or applied in respect of the Obligations(whether from proceeds of Collateral or otherwise), as well as for purposes ofdetermining whether such other Lender must turn over all or any portion of anypayment or other distribution received by such other Lender (whether before orafter occurrence of such Disgorged Recovery) to the Administrative Agent forredistribution in accordance with the last sentence of Section 2.17(b).

###  

SECTION 2.18.      ***Sharing of Setoffs***.  Each Lender agrees that if it shall, throughthe exercise of a right of banker’s lien, setoff or counterclaim against eitherBorrower or any other Loan Party, or pursuant to a secured claim underSection 506 of Title 11 of the United States Code or other securityor interest arising from, or in lieu of, such secured claim received by suchLender under any applicable bankruptcy, insolvency or other similar law or otherwise,or by any other means, obtain payment (voluntary or involuntary) in respect ofany Loan or L/C Disbursement as a result of which the unpaid principal portionof its Loans and participations in L/C Disbursements shall be proportionatelyless than the unpaid principal portion of the Loans and participations in L/CDisbursements of any other Lender, it shall be deemed simultaneously to have purchasedfrom such other Lender at face value, and shall promptly pay to such otherLender the purchase price for, a participation in the Loans and L/C Exposure ofsuch other Lender, so that the aggregate unpaid principal amount of the Loansand L/C Exposure and participations in Loans and L/C Exposure held by eachLender shall be in the same proportion to the aggregate unpaid principal amountof all Loans and L/C Exposure then outstanding as the principal amount of itsLoans and L/C Exposure prior to such exercise of banker’s lien, setoff orcounterclaim or other event was to the principal amount of all Loans and L/CExposure outstanding prior to such exercise of banker’s lien, setoff orcounterclaim or other event; provided, however, that (i) ifany such purchase or purchases or adjustments shall be made pursuant to this Section 2.18and the payment giving rise thereto shall thereafter be recovered, suchpurchase or purchases or adjustments shall be rescinded to the extent of suchrecovery and the purchase price or prices or adjustment restored withoutinterest and (ii) the provisions of this Section 2.18 shallnot be construed to apply to any payment made by the Borrowers pursuant to andin accordance with the express terms of this Agreement or any payment obtainedby a Lender as consideration for the assignment of or sale of a participationin any of its Loans to any assignee or participant.  The Borrowers expressly consent to the foregoingarrangements and agrees that any Lender holding a participation in a Loan orL/C Disbursement deemed to have been so purchased may exercise any and allrights of banker’s lien, setoff or counterclaim with respect to any and allmoneys owing by the Borrowers to such Lender by reason thereof as fully as ifsuch Lender had made a Loan directly to the Borrowers in the amount of suchparticipation.

 

SECTION 2.19.      ***Payments***.  The Borrowers shall make each payment(including principal of or interest on any Borrowing or any L/C Disbursement orany Fees or other amounts) hereunder and under any other Loan Document notlater than 2:00 p.m. on the date when due in immediately availablefunds.  Except as otherwise providedherein, each payment by a Borrower with respect to any Loan or Letter of Creditand each reimbursement

 

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ofreimbursable expenses or indemnified liabilities shall be made in the currencyin which such Loan was made, such Letter of Credit issued or such expense orliability was incurred.  Each suchpayment (other than (i) Issuing Bank Fees, which shall be paid directly tothe relevant Issuing Bank and (ii) principal of and interest on SwinglineLoans, which shall be paid directly to the Swingline Lender, except asotherwise provided in Section 2.22(e)) shall be made to theAdministrative Agent at its offices at Bank of America, N.A., 101 North TryonStreet, Mail Code:  NC1-001-04-39,Charlotte, NC  28255, Attn: Monika Patel,Tel:  (704) 386-5094, Fax:  (704) 409-01579674, Email:  monika.patel@bankofamerica.com.  The Administrative Agent shall distribute anysuch payments received by it for the account of any other Person to theappropriate recipient promptly following receipt thereof.

 

SECTION 2.20.      ***Taxes***.

 

### (a)           Any and all paymentsby or on account of any obligation of any Borrower or any other Loan Partyhereunder or under any other Loan Document shall be made free and clear of andwithout deduction for any Indemnified Taxes or Other Taxes; provided,that if any Indemnified Taxes or Other Taxes are required to be withheld ordeducted from such payments, then (i) the sum payable shall be increasedas necessary so that after making all required deductions or withholdings(including deductions or withholdings applicable to additional sums payableunder this Section) the Administrative Agent, Lender or Issuing Bank (as thecase may be) receives an amount equal to the sum it would have received had nosuch deductions or withholdings been made, (ii) such Borrower or such LoanParty shall make such deductions or withholdings and (iii) such Borrower orsuch Loan Party shall pay the full amount deducted or withheld to the relevantGovernmental Authority in accordance with applicable law.

###  

### (b)           In addition, theBorrowers shall pay any Other Taxes to the relevant Governmental Authority inaccordance with applicable law.

###  

### (c)           The Borrowers shallindemnify the Administrative Agent, each Lender and each Issuing Bank, within30 days after written demand therefor, for the full amount of any IndemnifiedTaxes or Other Taxes paid by the Administrative Agent, such Lender or suchIssuing Bank, as the case may be, on or with respect to any payment by or onaccount of any obligation of the Borrowers or any other Loan Party hereunder orunder any other Loan Document (including Indemnified Taxes or Other Taxesimposed or asserted on or attributable to amounts payable under this Section)and any penalties, interest and reasonable expenses arising therefrom or with respectthereto, in each case, whether or not such Indemnified Taxes (but not OtherTaxes) were correctly or legally imposed or asserted by the relevantGovernmental Authority; provided that if, after the payment of anyamounts by the Borrowers under this Section, any such Indemnified Taxes inrespect of which a payment was made are thereafter determined to have been incorrectlyor illegally imposed, then the relevant recipient of such payment shall, within30 days after such determination, repay any amounts paid to it by the Borrowershereunder in respect of such Indemnified Taxes; provided, further,that the Borrowers shall not be required to indemnify the Administrative Agent,any Lender or any Issuing Bank pursuant to this Section 2.20(c) forany amounts incurred more than six months prior to the date such AdministrativeAgent, Lender or Issuing Bank, as applicable, notifies the Borrowers of itsintention to claim compensation therefor. A certificate as to the amount of such payment or liability delivered tothe Parent Borrower by a Lender or an Issuing Bank, or by the AdministrativeAgent on behalf of itself, a Lender or an Issuing Bank, shall be conclusiveabsent manifest error.

###  

### (d)           As soon aspracticable after any payment of Indemnified Taxes or Other Taxes by theBorrowers or any other Loan Party to a Governmental Authority, the ParentBorrower shall deliver to the Administrative Agent the original or a copy of areceipt issued by such Governmental Authority evidencing such payment, a copyof the return reporting such payment or other evidence of such paymentreasonably satisfactory to the Administrative Agent.

###  

### (e)           Each Foreign Lendershall (a) furnish to the Borrowers (with a copy to the AdministrativeAgent) on or before the date it becomes a party to the Agreement either(i) 2 accurate and complete originally executed copies of U.S. InternalRevenue Service (“IRS”) Form W-8BEN (or successor form),(ii) 2 accurate and complete originally executed copies of IRSForm W-8ECI (or successor form) or (iii) 2 accurate and completeoriginally executed copies of IRS Form W-8IMY (or successor form) togetherwith any required attachments, certifying, in any  case, to such Foreign Lender’s legalentitlement to an exemption or reduction from U.S. federal withholding tax 

###  

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### withrespect to all payments hereunder and (b) provide to the Borrowers (with acopy to the Administrative Agent) a new Form W-8BEN (or successor form),Form W-8ECI (or successor form) or Form W-8IMY (or successor form)together with any required attachments upon (i) the expiration orobsolescence of any previously delivered form to reconfirm any completeexemption from, or any entitlement to a reduction in, U.S. federal withholdingtax with respect to any payment hereunder, (ii) the occurrence of anyevent requiring a change in the most recent form previously delivered by it and(iii) from time to time if requested by the Borrowers or theAdministrative Agent; provided that any Foreign Lender that is relyingon the so-called “portfolio interest exemption” shall also furnish a “Non-BankCertificate” in the form of Exhibit E together with aForm W-8BEN.  Notwithstanding anyother provision of this paragraph, a Foreign Lender shall not be required todeliver any form pursuant to this paragraph that such Foreign Lender is notlegally able to deliver.

###  

### (f)            Any Lender orIssuing Bank that is a United States Person, as defined inSection 7701(a)(30) of the Code, shall (unless such Lender or Issuing Bankmay be treated as an exempt recipient based on the indicators described inTreasury Regulation Section 1.6049-4(c)(1)(ii)(A)(1)) deliver to theBorrowers (with a copy to the Administrative Agent), at the times specified in Section 2.20(e),2 accurate and complete original signed copies of IRS Form W-9, or anysuccessor form that such Person is entitled to provide at such time, in orderto qualify for an exemption from United States back-up withholdingrequirements.

###  

### (g)           In the event that aBorrower is resident in or conducts business in Puerto Rico, each Lender or IssuingBank that is not a resident of Puerto Rico for Puerto Rican Tax purposes shallfile any certificate or document reasonably requested by such Borrower and,when prescribed by applicable law and reasonably requested by such Borrower,update or renew any such certificate or document, pursuant to any applicablelaw or regulation, if such filing (i) would eliminate or reduce the amountof withholding Taxes imposed by Puerto Rico with respect to any paymenthereunder and (ii) would not, in the sole discretion of such Lender,result in a legal, economic or regulatory disadvantage to such Lender.

###  

### (h)           If theAdministrative Agent, a Lender or an Issuing Bank determines, in its solediscretion, that it has received a refund of any Indemnified Taxes or OtherTaxes as to which it has been indemnified by a Borrower or with respect towhich a Borrower has paid additional amounts pursuant to this Section, it shallpay to the relevant Borrower an amount equal to such refund (but only to theextent of indemnity payments made, or additional amounts paid, by such Borrowerunder this Section with respect to the Indemnified Taxes or Other Taxesgiving rise to such refund), net of all reasonable out-of-pocket expenses ofthe Administrative Agent, such Lender or such Issuing Bank, as the case may be,and without interest (other than any interest paid by the relevant GovernmentalAuthority with respect to such refund), provided that(i) the relevant Borrower, upon the request of the Administrative Agent,such Lender or such Issuing Bank, agrees to repay the amount paid over to suchBorrower (plus any penalties, interest or other charges imposed by the relevantGovernmental Authority) to the Administrative Agent, such Lender or suchIssuing Bank in the event the Administrative Agent, such Lender or such IssuingBank is required to repay such refund to such Governmental Authority and(ii) nothing herein contained shall interfere with the right of a Lenderor Administrative Agent to arrange its tax affairs in whatever manner it thinksfit nor oblige any Lender or Agent to claim any tax refund or to make availableits tax returns or disclose any information relating to its tax affairs or anycomputations in respect thereof or require any Lender or Administrative Agentto do anything that would prejudice its ability to benefit from any otherrefunds, credits, reliefs, remissions or repayments to which it may beentitled.

###  

SECTION 2.21.      ***Assignment of Commitments Under CertainCircumstances; Duty to Mitigate***.

 

### (a)           In the event(i) any Lender or any Issuing Bank requests compensation pursuant to Section 2.14,(ii) any Lender or any Issuing Bank delivers a notice described in Section 2.15,(iii) any Borrower is required to pay any additional amount to any Lenderor the Issuing Bank or any Governmental Authority on account of any Lender orany Issuing Bank pursuant to Section 2.20, (iv) any Lendershall become a Defaulting Lender or (v) any Lender refuses to consent toany amendment, waiver or other modification of any Loan Document requested bythe Parent Borrower that requires the consent of all affected Lenders inaccordance with the terms of Section 9.08 or all the Lenders withrespect to a certain Class of Loans and such amendment, waiver or othermodification is consented to by the Required Lenders or the RequiredClass Lenders for such Class, as applicable (any such Lender, a “Non-ConsentingLender”), the Parent Borrower may, at its sole cost and expense, uponnotice to such Lender or such 

 

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### IssuingBank, as the case may be, and upon the consent of the Administrative Agent,which shall not be unreasonably withheld, either:

###  

(x)            replacesuch Lender or Issuing Bank, as the case may be, by causing such Lender or IssuingBank to (and such Lender or Issuing Bank shall be obligated to) assign at par100% of its relevant Commitments and the principal of its relevant outstandingLoans plus any accrued and unpaid interest and fees pursuant to Section 9.04(with the assignment fee to be waived in such instance) all of its relevantrights and obligations under this Agreement to one or more Persons (whichPersons shall otherwise be subject to the approval rights set forth in Section 9.04(b));provided that (A) the replacement Lender shall agree to theconsent, waiver or amendment to which the Non-Consenting Lender did not agree,(B) neither the Administrative Agent nor any Lender shall have anyobligation to the Borrowers to find a replacement Lender or other such Personand (C) in the case of any such assignment resulting from a claim forcompensation under Section 2.14 or payments required to be madepursuant to Section 2.20, such assignment will result in areduction in such compensation or payments; or

 

(y)           terminatethe Commitment of such Lender or Issuing Bank, as the case may be, and(1) in the case of a Lender (other than an Issuing Bank), repay allObligations (other than contingent obligations) of each Borrower owing to suchLender relating to the Loans and participations held by such Lender as of suchtermination date and (2) in the case of an Issuing Bank, repay allObligations of each Borrower owing to such Issuing Bank relating to the Loansand participations held by the Issuing Bank as of such termination date otherthan any Obligations pertaining to any Subject Letters of Credit.

 

Notwithstanding anything to the contrary containedabove in this Section 2.21, unless an Issuing Bank is removed andreplaced with a successor Issuing Bank at the time the Parent Borrower exercisesits rights under this Section 2.21 (in which case the provisions ofSection 2.23(i) shall apply), any Issuing Bank having undrawnLetters of Credit issued by it (the “Subject Letters of Credit”) whoseCommitments and Obligations are to be repaid or terminated pursuant to theforegoing provisions of this Section 2.21 shall (x) remain a partyhereto until the expiration or termination of the Subject Letters of Credit,(y) not issue (or be required to issue) any further Letters of Credit hereunderand (z) continue to have all rights and obligations of an Issuing Bank underthis Agreement and the other Loan Documents solely with respect to the SubjectLetters of Credit until all of the Subject Letters of Credit have expired, beenterminated or become subject to an L/C Backstop (including all rights ofreimbursement pursuant to Sections 2.23(d), (e), (f) and(h) for any L/C Disbursement made by such Issuing Bank and allvoting rights of an Issuing Bank (but such voting rights shall be limited topertain solely to L/C Disbursements in respect of the Subject Letters ofCredit, any Fee payable to the Issuing Bank in respect of the Subject Lettersof Credit, and the rights or duties of the Issuing Bank in respect of theSubject Letters of Credit), but excluding any consent rights as an Issuing Bankunder Section 9.04(b)).

 

Each Lender hereby grants to the Administrative Agentan irrevocable power of attorney (which power is coupled with an interest) toexecute and deliver, on behalf of such Lender as assignor, any Assignment andAcceptance necessary to effectuate any assignment of such Lender’s interestshereunder in respect of the circumstances contemplated by this Section 2.21.

 

### (b)           If (i) anyLender or any Issuing Bank requests compensation under Section 2.14,(ii) any Lender or any Issuing Bank delivers a notice described in Section 2.15or (iii) any Borrower is required to pay any additional amount to anyLender or any Issuing Bank or any Governmental Authority on account of anyLender or any Issuing Bank, pursuant to Section 2.20, then suchLender or such Issuing Bank shall use reasonable efforts (which shall notrequire such Lender or such Issuing Bank to take any action inconsistent withits internal policies or legal or regulatory restrictions or suffer anydisadvantage or burden deemed by it to be material) (x) to file any certificateor document reasonably requested by the Parent Borrower or (y) to assignits rights and delegate and transfer its obligations hereunder to another ofits offices, branches or affiliates, if such filing or assignment would reduceits claims for compensation under Section 2.14 or enable it towithdraw its notice pursuant to Section 2.15 or would reduceamounts payable pursuant to Section 2.20, as the case may be, inthe future.

 

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SECTION 2.22.      ***Swingline Loans***.

 

### (a)           Subject to the termsand conditions herein set forth, the Swingline Lender agrees to make loans tothe Borrowers at any time and from time to time on or after the Closing Dateand until the earlier of the Revolving Credit Maturity Date and the terminationof the Revolving Credit Commitments, in an aggregate principal amount at anytime outstanding that will not result in (i) the principal amount of allSwingline Loans exceeding $25,000,000 in the aggregate or  (ii) the Aggregate Revolving CreditExposure exceeding the Total Revolving Credit Commitment; provided thatnotwithstanding the foregoing, the Swingline Lender shall not be obligated tomake any Swingline Loans at a time when a Revolving Credit Lender is aDefaulting Lender, unless the Swingline Lender has entered into arrangementsreasonably satisfactory to it and the Parent Borrower to eliminate theSwingline Lender’s risk with respect to the Defaulting Lender’s participationin such Swingline Loans, including by cash collateralizing such DefaultingLender’s Pro Rata Percentage of the outstanding amount of Swingline Loans.  Each Swingline Loan shall be denominated indollars and shall be in a principal amount that is a minimum amount of $500,000and integral multiple of $100,000 in excess thereof.  The Swingline Commitment may be terminated orreduced from time to time as provided herein. Within the foregoing limits, theBorrowers may borrow, pay or prepay and reborrow Swingline Loans hereunder,subject to the terms, conditions and limitations set forth herein.

###  

### (b)           The relevantBorrower shall notify the Swingline Lender by fax, or by telephone (promptly confirmedby fax), not later than 12:30 p.m. on the day of a proposed SwinglineLoan.  Such notice shall be delivered ona Business Day, shall be irrevocable and shall refer to this Agreement andshall specify the requested date (which shall be a Business Day) and amount ofsuch Swingline Loan.  The SwinglineLender shall make each Swingline Loan available to such requesting Borrower bymeans of a credit to an account designated by the relevant Borrower promptly onthe date such Swingline Loan is so requested.

###  

### (c)           Each Borrower shallhave the right at any time and from time to time to prepay any Swingline Loan,in whole or in part, upon giving written or fax notice by such Borrower (ortelephone notice promptly confirmed by written, or fax notice) to the SwinglineLender before 12:30 p.m. on the date of prepayment at the SwinglineLender’s address for notices specified in Section 9.01; providedthat any such notice delivered by a Borrower may state that such notice isconditioned upon the effectiveness of other financing arrangements, in whichcase such notice may be revoked by such Borrower (by notice to theAdministrative Agent on or prior to the specified effective date) if suchcondition is not satisfied.

###  

### (d)           Each Swingline Loanshall be an ABR Loan and, subject to the provisions of Section 2.07,shall bear interest as provided in Section 2.06(a).

###  

### (e)           The Swingline Lendermay by written notice given to the Administrative Agent not later than11:00 a.m. on any Business Day require the Revolving Credit Lenders toacquire participations on such Business Day in all or a portion of theSwingline Loans outstanding. Such notice shall specify the aggregate amount ofSwingline Loans in which Revolving Credit Lenders will participate. TheAdministrative Agent will, promptly upon receipt of such notice, give notice toeach Revolving Credit Lender, specifying in such notice such Lender’s Pro RataPercentage of such Swingline Loan. In furtherance of the foregoing, eachRevolving Credit Lender hereby absolutely and unconditionally agrees, uponreceipt of notice as provided above, to pay to the Administrative Agent, forthe account of the Swingline Lender, such Revolving Credit Lender’s Pro RataPercentage of such Swingline Loan. Each Revolving Credit Lender acknowledgesand agrees that its obligation to acquire participations in Swingline Loanspursuant to this paragraph is absolute and unconditional and shall not beaffected by any circumstance whatsoever, including the occurrence andcontinuance of a Default or an Event of Default, and that each such paymentshall be made without any offset, abatement, withholding or reductionwhatsoever. Each Revolving Credit Lender shall comply with its obligation underthis paragraph by wire transfer of immediately available funds, in the samemanner as provided in Section 2.02(c) with respect to Loansmade by such Lender (and Section 2.02(c) shall apply, mutatismutandis, to the payment obligations of the Lenders) and theAdministrative Agent shall promptly pay to the Swingline Lender the amounts soreceived by it from the Revolving Credit Lenders. The Administrative Agentshall notify the Parent Borrower of any participations in any Swingline Loanacquired pursuant to this paragraph and thereafter payments in respect of suchSwingline Loan shall be made to the Administrative Agent and not to theSwingline Lender. Any amounts received by the Swingline Lender from the relevantBorrower (or other party on behalf of the Borrowers) in respect of a SwinglineLoan after receipt by the 

 

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### SwinglineLender of the proceeds of a sale of participations therein shall be promptlyremitted to the Administrative Agent and be distributed by the AdministrativeAgent to the Lenders that shall have made their payments pursuant to thisparagraph and to the Swingline Lender, as their interests may appear. Thepurchase of participations in a Swingline Loan pursuant to this paragraph shallnot relieve the relevant Borrower (or other party liable for obligations of theBorrowers) of any default in the payment thereof.

###  

SECTION 2.23.      ***Letters of Credit***.

 

### (a)           Each Borrower mayrequest the issuance of a Letter of Credit on a sight basis for its own accountor for the account of any of its subsidiaries, in a form reasonably acceptableto the Administrative Agent and the relevant Issuing Bank, at any time and fromtime to time on or after the Closing Date and prior to the earlier to occur of(i) the termination of the Revolving Credit Commitments and (ii) thedate that is 5 Business Days prior to the Revolving Credit Maturity Date.This Section shall not be construed to impose an obligation upon anyIssuing Bank to issue any Letter of Credit that is inconsistent with the termsand conditions of this Agreement. Letters of Credit may be denominated in dollars or in one or moreAlternative Currencies.  On and as of theClosing Date each Existing Letter of Credit shall be deemed to constitute aLetter of Credit issued hereunder on the Closing Date.

###  

### (b)           In order to requestthe issuance of a Letter of Credit (or to amend, renew or extend an existing Letterof Credit), the relevant Borrower shall deliver a notice (a “Letter ofCredit Application”) to the relevant Issuing Bank and the AdministrativeAgent (reasonably, and in any event, unless waived by the relevant IssuingBank, no later than 2 Business Days in advance of the requested date ofissuance, amendment, renewal or extension) requesting the issuance of a Letterof Credit, or identifying the Letter of Credit to be amended, renewed orextended and specifying (i) the date of issuance, amendment, renewal orextension, (ii) the date on which such Letter of Credit is to expire(which shall comply with paragraph (c) below), (iii) theamount of such Letter of Credit, (iv) the currency in which such Letter ofCredit is requested to be denominated, (v) the name and address of thebeneficiary thereof and (vi) such other information as the relevantIssuing Bank may request with respect to such Letter of Credit. A Letter ofCredit shall be issued, amended, renewed or extended only if, and uponissuance, amendment, renewal or extension of each Letter of Credit the relevantBorrower shall be deemed to represent and warrant that, after giving effect tosuch issuance, amendment, renewal or extension (i) the L/C Exposure shallnot exceed $70,000,000, (ii) the Aggregate Revolving Credit Exposure shallnot exceed the Total Revolving Credit Commitment and (iii) the RevolvingCredit Exposure attributable to the Foreign Subsidiary Borrowers shall notexceed the Foreign Subsidiary Borrower Sublimit.  Promptly after receipt of any Letter ofCredit Application, the relevant Issuing Bank will confirm with the AdministrativeAgent (by telephone or in writing) that the Administrative Agent has received acopy of such Letter of Credit Application from the relevant Borrower and, ifnot, such Issuing Bank will provide the Administrative Agent with a copythereof.  Subject to the terms andconditions hereof, such Issuing Bank shall, on the requested date, issue aLetter of Credit for the account of the relevant Borrower or enter into theapplicable amendment, as the case may be. Promptly after its delivery of any Letter of Credit or any amendment toa Letter of Credit to an advising bank with respect thereto or to thebeneficiary thereof, the relevant Issuing Bank will also deliver to therelevant Borrower and the Administrative Agent a true and complete copy of suchLetter of Credit or amendment.

###  

### (c)           Each Letter ofCredit shall expire at the close of business on the earlier of the date 1 yearafter the date of the issuance of such Letter of Credit and the date that is 5days prior to the Revolving Credit Maturity Date, unless such Letter of Creditexpires by its terms on an earlier date or an L/C Backstop exists (the “Letterof Credit Expiration Date”); provided, however, that a Letterof Credit may, upon the request of the relevant Borrower, include a provisionwhereby such Letter of Credit (an “Auto-Renewal Letter of Credit”) shallbe renewed automatically for additional consecutive periods of 12 months orless (but not beyond the date that is 5 days prior to the Revolving CreditMaturity Date unless an L/C Backstop exists) unless the relevant Issuing Banknotifies the beneficiary thereof at least 30 days (or such longer periodas may be specified in such Letter of Credit) prior to the then-applicableLetter of Credit Expiration Date that such Letter of Credit will not be renewed.  Once an Auto-Renewal Letter of Credit hasbeen issued, the Revolving Credit Lenders shall be deemed to have authorized(but may not require) the relevant Issuing Bank to permit the renewal of suchLetter of Credit at any time to an expiry date not later than the Letter ofCredit Expiration Date; provided that the relevant Issuing Bank shallnot permit any such renewal if (i) the relevant Issuing Bank has determinedthat it would have no obligation at such time to issue such Letter of Credit inits renewed form under the terms hereof (by reason of the provisions of Section 2.23(l)or 

 

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### otherwise)or (ii) it has received notice (which may be by telephone or in writing) 5Business Days prior to the day that is 30 days (or such longer period as may bespecified in such Letter of Credit) prior to the then-applicable Letter ofCredit Expiration Date from the Administrative Agent, any Revolving CreditLender or the relevant Borrower that one or more of the applicable conditionsspecified in Section 4.01 is not then satisfied.

###  

### (d)           By the issuance of aLetter of Credit and without any further action on the part of an Issuing Bankor the Lenders, such Issuing Bank hereby grants to each Revolving CreditLender, and each such Lender hereby acquires from such Issuing Bank, aparticipation in such Letter of Credit equal to such Lender’s Pro RataPercentage of the aggregate amount available to be drawn under such Letter ofCredit, effective upon the issuance of such Letter of Credit. In considerationand in furtherance of the foregoing, each Revolving Credit Lender hereby absolutelyand unconditionally agrees to pay to the Administrative Agent, for the accountof such Issuing Bank, such Lender’s Pro Rata Percentage of each L/CDisbursement made by such Issuing Bank and not reimbursed by the relevantBorrower (or, if applicable, another party pursuant to its obligations underany other Loan Document) forthwith on the date due as provided in Section 2.02(f).Each Revolving Credit Lender acknowledges and agrees that its obligation toacquire participations pursuant to this paragraph in respect of Letters ofCredit is absolute and unconditional and shall not be affected by anycircumstance whatsoever, including the occurrence and continuance of a Defaultor an Event of Default, and that each such payment shall be made without anyoffset, abatement, withholding or reduction whatsoever.  Upon any change in the Revolving CreditCommitments or Pro Rata Percentages of the Revolving Credit Lenders pursuant toSection 2.21 or 9.04(b), it is hereby agreed that, withrespect to all outstanding Letters of Credit and unreimbursed L/C Disbursementsrelating thereto, there shall be an automatic adjustment to the participationspursuant to this Section 2.23(d) to reflect the new Pro RataPercentages of each Revolving Credit Lender.

###  

### (e)           If an Issuing Bankshall make any L/C Disbursement in respect of a Letter of Credit, the relevantBorrower shall pay to the Administrative Agent an amount equal to such L/CDisbursement not later than 12:00 noon on the immediately followingBusiness Day.  In the case of a Letter ofCredit denominated in an Alternative Currency, the relevant Borrower shall reimbursethe relevant Issuing Bank in the currency in which such L/C Disbursement shallhave been made.

###  

### (f)            (i)  EachBorrower’s obligations to reimburse L/C Disbursements as provided in paragraph (e) aboveshall be absolute, unconditional and irrevocable, and shall be performedstrictly in accordance with the terms of this Agreement, under any and allcircumstances whatsoever, and irrespective of the existence of any claim,setoff, defense or other right that the Borrowers or any other Person may atany time have against the beneficiary under any Letter of Credit, the IssuingBank, the Administrative Agent or any Lender or any other Person, including anydefense based on the failure of any draft or other document presented under aLetter of Credit to comply with the terms of such Letter of Credit; providedthat the Borrowers shall not be obligated to reimburse the Issuing Bank for anywrongful payment made by the Issuing Bank as a result of the Issuing Bank’sgross negligence, bad faith, willful misconduct or breach of its obligations indetermining whether drafts and other documents presented under a Letter ofCredit comply with the terms thereof.

###  

#### (ii)     Each Lender and eachBorrower agree that, in paying any drawing under a Letter of Credit, therelevant Issuing Bank shall not have any responsibility to obtain any document(other than any draft, demand, certificate or other document expressly requiredby the Letter of Credit) or to ascertain or inquire as to the validity oraccuracy of any such document or the authority of the Person executing or deliveringany such document.  None of the IssuingBanks, the Agents nor any of the respective correspondents, participants or assigneesof any Issuing Bank shall be liable to any Lender for (x) any action takenor omitted in connection herewith at the request or with the approval of theLenders or the Required Lenders, as applicable, (y) any action taken oromitted in the absence of gross negligence or willful misconduct or(z) the due execution, effectiveness, validity or enforceability of anydocument or instrument related to any Letter of Credit or Letter of CreditApplication.  Each Borrower herebyassumes all risks of the acts or omissions of any beneficiary or transfereewith respect to its use of any Letter of Credit; provided that thisassumption is not intended to, and shall not, preclude either Borrower frompursuing such rights and remedies as it may have against the beneficiary ortransferee at law or under any other agreement.

####  

### (g)           The relevant IssuingBank shall, promptly following its receipt thereof, examine all documentspurporting to represent a demand for payment under a Letter of Credit.  The relevant Issuing Bank shall as promptly 

 

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### aspossible give telephonic notification, confirmed by fax, to the AdministrativeAgent and the relevant Borrower of such demand for payment and whether suchIssuing Bank has made or will make an L/C Disbursement thereunder; providedthat any failure to give or delay in giving such notice shall not relieve therelevant Borrower of its obligations to reimburse such Issuing Bank and theRevolving Credit Lenders with respect to any such L/C Disbursement.

###  

### (h)           If an Issuing Bankshall make any L/C Disbursement in respect of a Letter of Credit, then, unlessthe relevant Borrower shall reimburse such L/C Disbursement in full on the sameday that such LC Disbursement is made, the unpaid amount thereof shall bearinterest for the account of an Issuing Bank, for each day from and includingthe date of such L/C Disbursement, to but excluding the earlier of the date ofpayment by the relevant Borrower or the date on which interest shall commenceto accrue thereon as provided in Section 2.02(f), at the rate perannum that would apply to such amount if such amount were an ABR RevolvingLoan.

###  

### (i)            An Issuing Bank maybe removed at any time by the Borrowers by notice from the Parent Borrower tosuch Issuing Bank, the Administrative Agent and the Lenders.  Upon the acceptance of any appointment as anIssuing Bank hereunder by a Lender that shall agree to serve as successorIssuing Bank (which Lender shall be reasonably acceptable to the AdministrativeAgent), such successor shall succeed to and become vested with all theinterests, rights and obligations of the retiring Issuing Bank. At the timesuch removal shall become effective, the Borrowers shall pay all accrued andunpaid fees pursuant to Section 2.05(c)(ii). The acceptance of anyappointment as an Issuing Bank hereunder by a successor Lender shall be evidencedby an agreement entered into by such successor, in a form reasonablysatisfactory to the Parent Borrower and the Administrative Agent, and, from andafter the effective date of such agreement, (i) such successor Lendershall have all the rights and obligations of the previous Issuing Bank underthis Agreement and the other Loan Documents and (ii) references herein andin the other Loan Documents to the term “Issuing Bank” shall be deemed to referto such successor or to any previous Issuing Bank, or to such successor and allprevious Issuing Banks, as the context shall require. After the resignation orremoval of an Issuing Bank hereunder, the retiring Issuing Bank shall remain aparty hereto and shall continue to have all the rights and obligations of anIssuing Bank under this Agreement and the other Loan Documents with respect toLetters of Credit issued by it prior to such removal, but shall not be requiredto issue additional Letters of Credit.

###  

### (j)            If the maturity ofany of the Loans under the Credit Facilities has been accelerated and the Borrowersshall have received notice from the Administrative Agent or the RequiredRevolving Lenders, the Borrowers shall deposit in an account with the CollateralAgent, for the benefit of the Revolving Credit Lenders, an amount in cash equalto the L/C Exposure as of such date. Such deposit shall be held by theCollateral Agent as collateral for the payment and performance of theObligations. The Collateral Agent shall have exclusive dominion and control,including the exclusive right of withdrawal, over such account.  Other than any interest earned on the investmentof such deposits in Cash Equivalents, which investments shall be made at theoption and sole discretion of the Collateral Agent, such deposits shall notbear interest. Interest or profits, if any, on such investments shall accumulatein such account. Moneys in such account shall (i) automatically be appliedby the Administrative Agent to reimburse each Issuing Bank for L/CDisbursements for which it has not been reimbursed, (ii) be held for thesatisfaction of the reimbursement obligations of the Borrowers for the L/C Exposureat such time and (iii) subject to the consent of the Required RevolvingLenders, be applied to satisfy the Obligations. If the Borrowers are requiredto provide an amount of cash collateral hereunder as a result of theacceleration of the Loans under the Credit Facilities, such amount (to theextent not applied as aforesaid) shall be returned to the Borrowers within 3Business Days to the extent any such acceleration has been rescinded.

###  

### (k)           The Parent Borrowermay, at any time and from time to time with the consent of the AdministrativeAgent (which consent shall not be unreasonably withheld or delayed) and suchLender, designate one or more additional Lenders to act as an issuing bankunder the terms of this Agreement. Any Lender designated as an issuing bankpursuant to this paragraph (k) shall be deemed to be an “Issuing Bank”(in addition to being a Lender) in respect of Letters of Credit issued or to beissued by such Lender, and, with respect to such Letters of Credit, such termshall thereafter apply to the other Issuing Bank and such Lender.

###  

### (l)            An Issuing Bankshall be under no obligation to issue any Letter of Credit if:

 

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#### (i)           anyorder, judgment or decree of any Governmental Authority or arbitrator shall byits terms purport to enjoin or restrain such Issuing Bank from issuing suchLetter of Credit, or any law applicable to such Issuing Bank or any directive(whether or not having the force of law) from any Governmental Authority withjurisdiction over such Issuing Bank shall prohibit, or direct that such IssuingBank refrain from, the issuance of letters of credit generally or such Letterof Credit in particular;

####  

#### (ii)          theissuance of such Letter of Credit would violate any applicable laws bindingupon such Issuing Bank; and

####  

#### (iii)         anyRevolving Credit Lender is a Defaulting Lender at such time, unless suchIssuing Bank has entered into arrangements reasonably satisfactory to it andthe Parent Borrower to eliminate such Issuing Bank’s risk with respect to theparticipation in Letters of Credit by such Defaulting Lender, including by cashcollateralizing such Defaulting Lender’s Pro Rata Percentage of the L/C Exposure.

####  

### (m)          Notwithstandinganything else to the contrary in this Agreement, in the event of any conflictor inconsistency between the terms hereof and the terms of any Letter of CreditApplications, reimbursement agreements or similar agreements, the terms hereofshall control.

###  

SECTION 2.24.      ***Incremental Credit Extensions***.

 

### (a)           The Parent Borrowermay at any time or from time to time after the Closing Date, by notice to theAdministrative Agent (whereupon the Administrative Agent shall promptly delivera copy to each of the Lenders), request (i) one or more additionaltranches of term loans (the “Incremental Term Loans”) or (ii) oneor more increases in the amount of the Revolving Credit Commitments (each suchincrease, a “Revolving Commitment Increase” and, together with anyIncremental Term Loans, a “Credit Increase”); provided that bothat the time of any such request and upon the effectiveness of any IncrementalAmendment referred to below, no Event of Default shall exist.  Each Credit Increase shall be in an aggregateprincipal amount that is not less than $25,000,000 (or such lower amount thateither (A) represents all remaining availability under the limit set forthin the next sentence or (B) is acceptable to the AdministrativeAgent).  Notwithstanding anything to thecontrary herein, (i) the aggregate amount of the Credit Increases shallnot exceed the lesser of (x) $300,000,000 and (y) the maximum amount at thetime of such proposed Credit Increase that could be incurred such that aftergiving pro forma effect to such Credit Increase, the Total Net Leverage Ratiodoes not exceed 9.50:1.00 as of the last date for which Section 5.04Financials have been delivered to the Administrative Agent and (ii) in thecase of any proposed Revolving Commitment Increase, after giving pro formaeffect to such Revolving Credit Increase, the total outstanding RevolvingCredit Commitments shall not exceed 1.00x of the Parent Borrower’s EBITDA as ofthe last date for which Section 5.04 Financials have been delivered to theAdministrative Agent.  Each IncrementalTerm Loan (1) shall rank paripassu in right of payment andof security with the Revolving Credit Loans (subject to Section 2.17)and the then-existing Term Loans, (2) shall not mature earlier than theTerm Loan Maturity Date, (3) shall have a Weighted Average Life toMaturity not shorter than the remaining Weighted Average Life to Maturity ofthe then-existing Term Loans (without giving effect to annual amortization onany Incremental Term Loan Facility not in excess of 1% of the principal amountthereof) and (4) shall be treated in the same manner as the Term Loans forpurposes of Section 2.13(e) and Section 2.17(b).  Each notice from the Parent Borrower pursuantto this Section 2.24 shall set forth the requested amount andproposed terms of the relevant Credit Increases.  Incremental Term Loans may be made, andRevolving Commitment Increases may be provided, by any existing Lender or byany other bank or other financial institution (any such other bank or otherfinancial institution being called an “Additional Lender”); providedthat the relevant Persons under Section 9.04(b) shall haveconsented (in each case, not to be unreasonably withheld or delayed) to suchLender’s or Additional Lender’s making such Incremental Term Loans or providingsuch Revolving Commitment Increases, if such consent would be required under Section 9.04(b) foran assignment of Loans or Revolving Credit Commitments, as applicable, to suchLender or Additional Lender.  TheArrangers agree, upon the request of the Parent Borrower and pursuant tomutually satisfactory engagement and compensation arrangements, to use theircommercially reasonable efforts to obtain any Additional Lenders to make anysuch requested Incremental Term Loans or Revolving Commitment Increases;provided that the Arrangers’ agreement to use such efforts does not constitutea commitment to provide any such requested Incremental Term Loans or RevolvingCommitment Increases.

 

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### (b)           Commitments inrespect of Credit Increases shall become Commitments (or in the case of a RevolvingCommitment Increase to be provided by an existing Revolving Credit Lender, anincrease in such Lender’s applicable Revolving Credit Commitment) under thisAgreement pursuant to an amendment (an “Incremental Amendment”) to thisAgreement and, as appropriate, the other Loan Documents, executed by eachBorrower, each Lender agreeing to provide such Commitment, if any, eachAdditional Lender, if any, and the Administrative Agent.  The Incremental Amendment may, without theconsent of any other Lenders, effect such amendments to this Agreement and theother Loan Documents as may be necessary or appropriate, in the reasonableopinion of the Administrative Agent and the Parent Borrower, to effect theprovisions of this Section 2.24. The effectiveness of any Incremental Amendment shall be subject to thesatisfaction on the date thereof (each, an “Incremental Facility Closing Date”)of each of the conditions set forth in Section 4.01 (it beingunderstood that all references to “the date of such Credit Event” or similarlanguage in such Section 4.01 shall be deemed to refer to theeffective date of such Incremental Amendment). The Parent Borrower may use the proceeds of Incremental Term Loans forany purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Credit Increases unless itso agrees in its sole discretion.  Uponeach increase in the Revolving Credit Commitments pursuant to this Section,(a) each Revolving Credit Lender immediately prior to such increase willautomatically and without further act be deemed to have assigned to each Lenderproviding a portion of the Revolving Commitment Increase (each a “RevolvingCommitment Increase Lender”) in respect of such increase, and each suchRevolving Commitment Increase Lender will automatically and without further actbe deemed to have assumed, a portion of such Revolving Credit Lender’s participationshereunder in outstanding Letters of Credit and Swingline Loans such that, aftergiving effect to each such deemed assignment and assumption of participations,the percentage of the aggregate outstanding (i) participations hereunderin Letters of Credit and (ii) participations hereunder in Swingline Loansheld by each Revolving Credit Lender (including each such Revolving CommitmentIncrease Lender) will equal the percentage of the aggregate Revolving CreditCommitments of all Revolving Credit Lenders represented by such RevolvingCredit Lender’s Revolving Credit Commitment and (b) if, on the date ofsuch increase, there are any Revolving Loans outstanding, such Revolving Loansshall on or prior to the effectiveness of such Revolving Commitment Increase beprepaid from the proceeds of additional Revolving Loans made hereunder(reflecting such increase in Revolving Credit Commitments), which prepaymentshall be accompanied by accrued interest on the Revolving Loans being prepaidand any costs incurred by any Lender in accordance with Section 2.16.

###  

### (c)           The Loans andCommitments established pursuant to this paragraph shall constitute Loans andCommitments under, and shall be entitled to all the benefits afforded by, thisAgreement and the other Loan Documents, and shall, without limiting theforegoing, benefit equally and ratably from the Guarantees and security interestscreated by the Security Documents.  TheLoan Parties shall take any actions reasonably required by the AdministrativeAgent to ensure and/or demonstrate that the Lien and security interests grantedby the Security Documents continue to be perfected under the UCC or otherwiseafter giving effect to the establishment of any such Class of Term Loansor any such new Commitments.

###  

### (d)           This Section 2.24shall supersede any provisions in Section 2.18 or 9.08 tothe contrary.

###  

# ARTICLE III

#  

# ***Representations and Warranties***

#  

Each Borrower represents and warrants (it beingunderstood that, for purposes of the representations and warranties made in theLoan Documents on the Closing Date, such representations and warranties shallbe construed as though the Transactions have been consummated) to theAdministrative Agent, the Collateral Agent, each Issuing Bank and each of theLenders that:

 

SECTION 3.01.      ***Organization; Powers***.  Each Loan Party and each RestrictedSubsidiary (a) is duly organized or formed, validly existing and in goodstanding (where relevant) under the laws of the jurisdiction of its organization,except where the failure to exist (other than in the case of each Borrower) orbe in good standing could not reasonably be expected to result in a MaterialAdverse Effect, (b) has all requisite power and authority to own itsproperty and assets and to carry on its business as now conducted, except wherethe failure to have such power and authority could not reasonably be expectedto result in a Material Adverse Effect, (c) is qualified to do businessin, and is in good standing (where relevant) in, every jurisdiction where itsownership, lease or operation of properties 

 

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or the conduct of its business requires such qualification,except where the failure to so qualify could not reasonably be expected toresult in a Material Adverse Effect, and (d) has the requisite power andauthority to execute, deliver and perform its obligations under each of theLoan Documents to which it is a party.

 

SECTION 3.02.      ***Authorization***.  The execution, delivery and performance ofthe Loan Documents (a) have been duly authorized by all requisitecorporate or other organizational and, if required, stockholder or member actionand (b) will not (i) violate (A) any provision (x) of anyapplicable law, statute, rule or regulation, or (y) of thecertificate or articles of incorporation, bylaws or other constitutivedocuments of any Loan Party, (B) any applicable order of any GovernmentalAuthority, (C) any provision of the New Senior Notes Documentation or theNew Mezzanine Notes Documentation or (D) any provision of any othermaterial indenture, agreement or other instrument to which any Loan Party orany Restricted Subsidiary is a party or by which any of them or any of theirproperty is bound, (ii) be in conflict with, result in a breach of orconstitute (alone or with notice or lapse of time or both) a default under orgive rise to any right to require the prepayment, repurchase or redemption ofany obligation under (x) the New Senior Notes Documentation or the NewMezzanine Notes Documentation or (y) any other such material indenture,agreement or other instrument or (iii) result in the creation orimposition of any Lien upon or with respect to any property or assets now ownedor hereafter acquired by any Loan Party or any Restricted Subsidiary (otherthan Liens created or permitted hereunder or under the Security Documents);except with respect to clauses (b)(i) through (b)(iii) (otherthan clauses (b)(i)(A)(y), (b)(i)(C) and (b)(ii)(x)),to the extent that such violation, conflict, breach, default, or creation orimposition of Lien could not reasonably be expected to result in a MaterialAdverse Effect.

 

SECTION 3.03.      ***Enforceability***.  This Agreement and each other Loan Document(when delivered) have been duly executed and delivered by each Loan Party whichis a party thereto.  This Agreement andeach other Loan Document delivered on the Closing Date constitutes, and eachother Loan Document when executed and delivered by each Loan Party which is aparty thereto will constitute, a legal, valid and binding obligation of suchLoan Party enforceable against such Loan Party in accordance with its terms,except as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization,receivership, moratorium or similar laws of general applicability relating toor limiting creditors’ rights generally or by general equity principles.

 

SECTION 3.04.      ***Governmental Approvals***.  Except to the extent the failure to obtain ormake the same could not reasonably be expected to result in a Material AdverseEffect, no action, consent or approval of, registration or filing with or anyother action by any Governmental Authority is necessary or will be required inconnection with the Loan Documents, except for (a) filings andregistrations necessary to perfect the Liens on the Collateral granted by theLoan Parties in favor of the Collateral Agent and (b) such as have beenmade or obtained and are in full force and effect.

 

SECTION 3.05.      ***Financial Statements***.

 

### (a)           The Company’sconsolidated balance sheets and related statements of income, stockholder’s equityand cash flows as of and for the fiscal years ended December 31, 2005 andDecember 31, 2006, audited by and accompanied by the report of KPMG LLPpresent fairly in all material respects the financial condition and results ofoperations and cash flows of the Company and its consolidated subsidiaries asof such dates and for such periods.  Suchfinancial statements were prepared in accordance with GAAP consistently appliedthroughout the period covered thereby, except as otherwise noted therein.

###  

### (b)           The Company hasheretofore delivered to the Administrative Agent its unaudited pro forma consolidatedbalance sheet and related pro forma statements of income and cash flows as ofthe fiscal quarter ended March 31, 2007, prepared giving effect to theTransactions as if they had occurred, with respect to such balance sheet, onsuch date and, with respect to such other financial statements, on the firstday of the four-fiscal quarter period ending on such date. Such pro formafinancial statements have been prepared in good faith by the Parent Borrower,based on the assumptions believed by the Parent Borrower on the date ofdelivery thereof to be reasonable, are based in all material respects on theinformation reasonably available to the Parent Borrower as of the date ofdelivery thereof, reflect in all material respects the adjustments required tobe made to give effect to the Transactions, it being understood that actualadjustments may vary from the pro forma adjustments and actual results may varyfrom such projected results and, in each case, such variations may be material.

 

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SECTION 3.06.      ***No Material Adverse Change***.  Since the Closing Date, no event, change orcondition has occurred that (individually or in the aggregate) has had, orcould reasonably be expected to have, a Material Adverse Effect.

 

SECTION 3.07.      ***Title to Properties***.  Each Loan Party and each RestrictedSubsidiary has good and indefeasible title in fee simple to, or valid leaseholdinterests in, all its material properties and assets other than (i) minordefects in title that do not materially interfere with its ability to conductits business or to utilize such assets for their intended purposes,(ii) except where the failure to have such title or other propertyinterests described above could not reasonably be expected to have,individually or in the aggregate, a Material Adverse Effect, and (iii) allsuch material properties and assets are free and clear of Liens, other thanPermitted Liens.

 

SECTION 3.08.      ***Subsidiaries***.  Schedule 3.08 sets forth as ofthe Closing Date a list of all subsidiaries of Intermediate Holdco, thejurisdiction of their formation or organization, as the case may be, and thepercentage ownership interest of such subsidiary’s parent company therein, andsuch Schedule shall denote which subsidiaries as of the Closing Date arenot Subsidiary Guarantors.

 

SECTION 3.09.      ***Litigation; Compliance with Laws***.

 

### (a)           Except as set forthon Schedule 3.09, there are no actions, suits or proceedings at law or inequity or by or before any Governmental Authority now pending or, to theknowledge of the Borrowers, threatened in writing against any Loan Party or anyRestricted Subsidiary or any business, property or rights of any such Personthat could reasonably be expected, individually or in the aggregate, to resultin a Material Adverse Effect.

###  

### (b)           None of the LoanParties or any Restricted Subsidiary or any of their respective material propertiesis in violation of any applicable law, rule or regulation, or is indefault with respect to any judgment, writ, injunction, decree or order of anyGovernmental Authority, where any such violation or default could reasonably beexpected to result in a Material Adverse Effect.

###  

SECTION 3.10.      ***Federal Reserve Regulations***.

 

### (a)           None of the LoanParties or any Restricted Subsidiary is engaged principally, or as one of its importantactivities, in the business of purchasing or carrying Margin Stock or extendingcredit for the purpose of purchasing or carrying Margin Stock.

###  

### (b)           No part of theproceeds of any Loan or any Letter of Credit will be used (i) to purchaseor carry any Margin Stock or to extend credit to others for the purpose ofpurchasing or carrying any Margin Stock or (ii) for a purpose in violationof Regulation T, U or X issued by the Board.

###  

SECTION 3.11.      ***Investment Company Act***.  None of the Loan Parties or any RestrictedSubsidiary is an “investment company” as defined in, or subject to regulationunder, the Investment Company Act of 1940.

 

SECTION 3.12.      ***Taxes***.  Each of the Loan Parties and each RestrictedSubsidiary has, except where the failure to so file or pay could not bereasonably expected to have a Material Adverse Effect, filed or caused to befiled all Federal, state and other Tax returns required to have been filed byit and has paid, caused to be paid, or made provisions for the payment of all Taxesdue and payable by it and all material assessments received by it, except suchTaxes and assessments that are not overdue by more than 45 days or the amountor validity of which are being contested in good faith by appropriateproceedings and for which such Loan Party or such Restricted Subsidiary, as applicable,shall have set aside on its books adequate reserves in accordance with GAAP.

 

SECTION 3.13.      ***No Material Misstatements***.  As of the Closing Date, to the knowledge ofthe Parent Borrower, the Confidential Information Memorandum and other writteninformation, reports, financial statements, exhibits and schedules furnished by(as modified or supplemented by other information so furnished prior to theClosing Date) or on behalf of the Parent Borrower to the Administrative Agentor the Lenders (other than projections and other forward looking informationand information of a general economic or industry specific nature) on or priorto the Closing Date in connection with the transactions contemplated hereby(taken as a whole) 

 

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did not and, as of the Closing Date, does not containany material misstatement of fact or omit to state any material fact necessaryto make the statements therein, in the light of the circumstances under whichthey were made, not materially misleading. The projections contained in the Confidential Information Memorandumwere prepared in good faith on the basis of assumptions believed by the ParentBorrower to be reasonable in light of the conditions existing at the time ofdelivery of such projections, and represented, at the time of delivery thereof,a reasonable good faith estimate of future financial performance by the ParentBorrower (it being understood that such projections are not to be viewed asfacts and are subject to significant uncertainties and contingencies, many ofwhich are beyond the control of the Parent Borrower, that actual results mayvary from projected results and such variances may be material and that theParent Borrower makes no representation as to the attainability of suchprojections or as to whether such projections will be achieved or willmaterialize).

 

SECTION 3.14.      ***Employee Benefit Plans***.  No ERISA Event has occurred or couldreasonably be expected to occur, that could reasonably be expected to result ina Material Adverse Effect.  Each PensionPlan and/or Foreign Plan is in compliance with the applicable provisions ofERISA, the Code and/or applicable law, except for such non-compliance that couldnot reasonably be expected to have a Material Adverse Effect.  No Pension Event has occurred or couldreasonably be expected to occur, which could reasonably be expected to resultin a Material Adverse Effect.

 

SECTION 3.15.      ***Environmental Matters***.  Except as otherwise provided in Schedule 3.15,or except with respect to any matters that, individually or in the aggregate,could not reasonably be expected to result in a Material Adverse Effect,(i) each Loan Party and each of their respective subsidiaries are incompliance with all applicable Environmental Laws, and have obtained, and arein compliance with, all permits required of them under applicable EnvironmentalLaws, (ii) there are no claims, proceedings, investigations or actions byany Governmental Authority or other Person pending, or to the knowledge of theBorrowers, threatened against any Loan Party or any of their respectivesubsidiaries under any Environmental Law, (iii) none of the Loan Partiesor any of their respective subsidiaries has agreed to assume or acceptresponsibility, by contract, for any liability of any other Person underEnvironmental Laws and (iv) there are no facts, circumstances orconditions relating to the past or present business or operations of any LoanParty, any of their respective subsidiaries, or any of their respectivepredecessors (including the disposal of any wastes, hazardous substances orother materials), or to any past or present assets of any Loan Party or any oftheir respective subsidiaries, that could reasonably be expected to result inany Loan Party or any subsidiary incurring any claim or liability under any EnvironmentalLaw.

 

SECTION 3.16.      ***Security Documents***.  All filings and other actions necessary toperfect the Liens on the Collateral created under, and in the mannercontemplated by, this Agreement and the Security Documents have been duly madeor taken or otherwise provided for in a manner reasonably acceptable to theCollateral Agent to the extent required by the terms of this Agreement or suchSecurity Documents and the Security Documents create in favor of the CollateralAgent, for the benefit of the Secured Parties, a valid, and together with suchfilings and other actions required by this Agreement or the Security Documents,perfected first priority Lien in the Collateral (to the extent that, withrespect to Collateral that is intellectual property, a valid, perfected Lien insuch Collateral is possible through such filings and other actions), securingthe payment of the Secured Obligations, subject only to Permitted Liens, to theextent any such Permitted Liens would have priority over the Liens in favor ofthe Administrative Agent pursuant to any applicable law; provided, however,the representation and warranty set forth in this Section 3.16 as itrelates to the effects of perfection or non-perfection, the priority or theenforceability of any pledge of or security interest in any Equity Interests ofany Foreign Subsidiary, or as to the rights and remedies of the CollateralAgent or any Lender with respect thereto shall be made only to the extent ofcomparable representations and warranties applicable to such Equity Interestsor Collateral set forth in the Security Documents pursuant to which Liens onsuch Equity Interests or Collateral are purported to be granted.

 

SECTION 3.17.      ***Location of Real Property and Leased Premises***.

 

### (a)           Schedule 3.17(a) listscompletely and correctly (in all material respects) as of the Closing Date allreal property owned by the Loan Parties and the Restricted Subsidiaries and theaddresses thereof, to the extent reasonably available.  Except as otherwise provided in Schedule 3.17(a),the Parent Borrower and its Restricted Subsidiaries own in fee all the realproperty set forth on such schedule, except to the extent the failure to havesuch title could not reasonably be expected to result in a Material AdverseEffect.

 

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### (b)           Schedule 3.17(b) listscompletely and correctly (in all material respects) as of the Closing Date allreal property leased by the Loan Parties and the Restricted Subsidiaries andthe addresses thereof. Except as otherwise provided on Schedule 3.17(b),the Loan Parties and the Restricted Subsidiaries have valid leasehold interestsin all the real property set forth on such schedule, except to the extent thefailure to have such valid leasehold interest could not reasonably be expectedto have a Material Adverse Effect.

###  

SECTION 3.18.      ***Labor Matters***.  Except as set forth in Schedule 3.18and except in the aggregate to the extent the same has not had and could not bereasonably expected to have a Material Adverse Effect, (a) there are nostrikes, lockouts, slowdowns or other labor disputes against any Loan Party orany Restricted Subsidiary pending or, to the knowledge of the Borrowers,threatened in writing, and (b) the hours worked by and payments made toemployees of the Loan Parties and the Restricted Subsidiaries have not been inviolation of the Fair Labor Standards Act or any other applicable Federal, state,local or foreign law dealing with such matters.

 

SECTION 3.19.      ***Solvency***.  On the Closing Date after giving effect tothe Transactions, the Loan Parties, on a consolidated basis, are Solvent.

 

SECTION 3.20.      ***Intellectual Property***.  Except as set forth in Schedule 3.20,the Parent Borrower and each of its Restricted Subsidiaries own, license orpossess the right to use all intellectual property, free from burdensomerestrictions, that are necessary for the operation of their respectivebusinesses as currently conducted and as proposed to be conducted, except wherethe failure to obtain any such rights or the imposition of such restrictionscould not reasonably be expected to have a Material Adverse Effect.

 

SECTION 3.21.      ***Subordination of Junior Financing***.  The Obligations constitute “Senior Debt,”“Senior Indebtedness,” “Guarantor Senior Debt” or “Senior Secured Financing”(or any comparable term) under, and as defined in, any Junior FinancingDocumentation.

 

# ARTICLE IV

#  

# ***Conditions of Lending***

#  

The obligations of the Lenders to make Loans and ofeach Issuing Bank to issue Letters of Credit hereunder are subject to thesatisfaction (or waiver by the Arrangers on or prior to the Closing Date and inaccordance with Section 9.08 thereafter) of the following conditions:

 

SECTION 4.01.      ***All Credit Events***.  On the date of the making of each Loan,including the making of a Swingline Loan and on the date of each issuance oramendment of a Letter of Credit (each such event being called a “CreditEvent”; it being understood that the conversion into a Eurodollar Loan, anABR Loan, a BA Rate Loan or a Canadian Base Rate Loan or continuation of aEurodollar Loan or BA Rate Loan does not constitute a Credit Event):

 

(a)           The Administrative Agent shall havereceived a notice of such Loan as required by Section 2.03 (or suchnotice shall have been deemed given in accordance with Section 2.02)or, in the case of the issuance, amendment, extension or renewal of a Letter ofCredit, the relevant Issuing Bank and the Administrative Agent shall havereceived a notice requesting the issuance, amendment, extension or renewal ofsuch Letter of Credit as required by Section 2.23(b) or, inthe case of the Borrowing of a Swingline Loan, the Swingline Lender and theAdministrative Agent shall have received a notice requesting such SwinglineLoan as required by Section 2.22(b).

 

(b)           The representations and warrantiesset forth in Article III and in each other Loan Document shall betrue and correct in all material respects on and as of the date of such CreditEvent with the same effect as though made on and as of such date, except to theextent such representations and warranties expressly relate to an earlier date,in which case they shall be true and correct in all material respects as of suchearlier date; provided, however, that solely for purposes ofrepresentations and warranties made on the Closing Date, such representationsand warranties shall be limited in all respects to the representations andwarranties in Sections 3.01(d), 3.02(a), 3.03, 3.10,3.11 and 3.21 and the Other Closing Date Representations.

 

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(c)           At the time of and immediately aftersuch Credit Event (other than any Credit Event occurring on the Closing Date),no Default or Event of Default shall have occurred and be continuing.

 

Each Credit Event shall be deemed to constitute arepresentation and warranty by the Borrowers to the relevant Lenders and/orIssuing Banks on the date of such Credit Event as to the matters specified in paragraphs (b) and(c) of this Section 4.01.

 

SECTION 4.02.      ***First Credit Event***.  On the Closing Date:

 

(a)           This Agreement shall have been dulyexecuted and delivered by the Borrowers.

 

(b)           The Administrative Agent shall havereceived, on behalf of itself, the Lenders and each Issuing Bank, an opinion ofKirkland & Ellis LLP, special counsel for the Loan Parties, addressedto each Issuing Bank, the Administrative Agent and the Lenders, in form andsubstance reasonably satisfactory to the Administrative Agent.

 

(c)           The Administrative Agent shall havereceived (i) a copy of the certificate or articles of incorporation ororganization, including all amendments thereto, of each Loan Party, certifiedas of a recent date by the Secretary of State of the state of its organization,and a certificate as to the good standing (where relevant) of each Loan Partyas of a recent date, from such Secretary of State or similar GovernmentalAuthority and (ii) a certificate of the Secretary or Assistant Secretaryof each Loan Party dated the Closing Date and certifying (A) that attachedthereto is a true and complete copy of the by-laws or operating (or limitedliability company) agreement of such Loan Party as in effect on the ClosingDate, (B) that attached thereto is a true and complete copy of resolutionsduly adopted by the Board of Directors (or equivalent body) of such Loan Partyauthorizing the execution, delivery and performance of the Loan Documents towhich such Person is a party and, in the case of the Borrowers, the borrowingshereunder, and that such resolutions have not been modified, rescinded oramended and are in full force and effect, (C) that (except in connectionwith the Merger) the certificate or articles of incorporation or organizationof such Loan Party have not been amended since the date of the last amendmentthereto shown on the certificate of good standing furnished pursuant to clause (i) above,and (D) as to the incumbency and specimen signature of each officerexecuting any Loan Document on behalf of such Loan Party and countersigned byanother officer as to the incumbency and specimen signature of the Secretary orAssistant Secretary executing the certificate pursuant to clause (ii) above.

 

(d)           The Administrative Agent shall havereceived a certificate, dated the Closing Date and signed by a FinancialOfficer of the Company, certifying compliance with the conditions precedent setforth in Sections 4.01(b) and 4.02(i).

 

(e)           The Administrative Agent shall havereceived all fees and other amounts due and payable on or prior to the ClosingDate, including, to the extent invoiced at least 3 Business Days prior to theClosing Date, reimbursement or payment of all reasonable out-of-pocket expensesrequired to be reimbursed or paid by Merger Sub hereunder or under any otherLoan Document.

 

(f)            The Parent Borrower shall havedelivered or caused to be delivered to the Administrative Agent a solvencycertificate from a Responsible Officer of the Parent Borrower setting forth theconclusions that, after giving effect to the Transactions, the Loan Parties (ona consolidated basis) are Solvent.

 

(g)           The Security Documents (other thanany Mortgages) shall have been duly executed by each Loan Party that is to be aparty thereto and shall be in full force and effect.  All actions necessary to establish that theCollateral Agent will have a perfected first priority Lien on the Collateral(subject to Permitted Liens, to the extent any such Permitted Liens would havepriority over the Liens in favor of the Administrative Agent pursuant to anyapplicable law) shall have been taken.

 

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(h)           The Administrative Agent shall havereceived the results of (i) searches of the Uniform Commercial Codefilings (or equivalent filings) and (ii) bankruptcy, judgment and tax liensearches, made with respect to the Loan Parties in the states (or otherjurisdictions) of formation of such Person, together with (in the case ofclause (i)) copies of the financing statements (or similar documents) disclosedby such search.

 

(i)            From May 2, 2007, no event,change or effect shall have occurred which, individually or in the aggregate,has resulted in or would reasonably be expected to result in a Material AdverseEffect.

 

(j)            The Administrative Agent shall havereceived a certificate as to coverage under the insurance policies required by Section 5.02.

 

(k)           The Administrative Agent shall havereceived a certified copy of the Merger Agreement, duly executed by the partiesthereto (together with all exhibits and schedules thereto).  The Merger shall be consummated substantiallyconcurrently with the initial funding of Loans on the Closing Date inaccordance with and on the terms described in the Merger Agreement, and nomaterial provision of the Merger Agreement shall have been amended or waived inany respect materially adverse to the interests of the Lenders without theprior written consent of the Arrangers, not to be unreasonably withheld ordelayed.

 

(l)            Substantially simultaneously withthe initial funding of Loans on the Closing Date (i) the Equity Investmentshall have been made and (ii) Merger Sub shall have received gross cashproceeds of (x) not less than $675,000,000 from the issuance of the New SeniorNotes and (y) not less than the Dollar Equivalent of approximately $520,000,000from the issuance of the New Mezzanine Notes.

 

(m)          All amounts due or outstanding inrespect of the Existing Debt (other than Existing Letters of Credit andcontingent obligations) shall have been (or substantially simultaneously withthe initial funding of the Loans on the Closing Date shall be) paid in full,all commitments (if any) respect thereof terminated and all guarantees (if any)thereof discharged and released.  Aftergiving effect to the Transactions, substantially all of the Indebtedness of theBorrowers and their subsidiaries shall have been repaid other than(i) Indebtedness under the Loan Documents, (ii) the New Senior Notes,(iii) the New Mezzanine Notes, (iv) any Existing Notes which have notbeen repurchased pursuant to the Tender Offer and (v) other Indebtednesspermitted by Section 6.01.

 

(n)           The Lenders shall have received fromthe Loan Parties, to the extent requested at least 10 days prior to the ClosingDate, all documentation and other information required by regulatoryauthorities under applicable “know your customer” and anti-money launderingrules and regulations, including the USA PATRIOT Act.

 

SECTION 4.03.      ***Additional Conditions Applicable to ForeignSubsidiary Borrowers***.  Theobligations of each Lender to make Loans and of each Issuing Bank to issueLetters of Credit requested to be made by it to any Foreign Subsidiary Borroweron any date is subject to satisfaction or waiver of, in addition to theconditions precedent set forth in Section 4.01, the followingconditions precedent:  (a) in thecase of the making of any extension of credit to any Foreign SubsidiaryBorrower for the first time, the delivery to the Administrative Agent of(i) the executed legal opinion of counsel to such Foreign SubsidiaryBorrower, in form and substance reasonably satisfactory to the AdministrativeAgent, and (ii) the collateral and security documents, in form andsubstance reasonably satisfactory to the Administrative Agent, executed anddelivered by a duly authorized officer of such Foreign Subsidiary Borrower andeach of its subsidiaries, and such other documents, instruments and agreementsas may be reasonably requested by the Administrative Agent and (b) thetruthfulness and correctness in all material respects on and as of such date ofthe following additional representations and warranties:

 

(a)           The obligations of such ForeignSubsidiary Borrower under this Agreement and any Note, when executed anddelivered by such Foreign Subsidiary Borrower, will rank at least paripassuwith all other secured Indebtedness of such Foreign Subsidiary Borrower.

 

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(b)           Such Foreign Subsidiary Borrower issubject to civil and commercial law with respect to its obligations under thisAgreement and any Note, and the execution, delivery and performance by suchForeign Subsidiary Borrower of this Agreement constitute and will constituteprivate and commercial acts and not public or governmental acts.  Neither such Foreign Subsidiary Borrower norany of its property, whether or not held for its own account, has any immunity(sovereign or other similar immunity) from any suit or proceeding, fromjurisdiction of any court or from set-off or any legal process (whether serviceor notice, attachment prior to judgment, attachment in aid of execution ofjudgment, execution of judgment or other similar immunity) under the laws ofthe jurisdiction in which such Foreign Subsidiary Borrower is organized andexisting in respect of its obligations under this Agreement or any Note.  Such Foreign Subsidiary Borrower has,pursuant to Section 9.15(e), waived every immunity (sovereign orotherwise) to which it or any of its properties would otherwise be entitledfrom any legal action, suit or proceeding, from jurisdiction of any court orfrom set-off or any legal process (whether service or notice, attachment priorto judgment, attachment in aid of execution of judgment, execution of judgmentor otherwise) under the laws of the jurisdiction in which such ForeignSubsidiary Borrower is organized and existing in respect of its obligationsunder this Agreement and any Note.  Thewaiver by such Foreign Subsidiary Borrower described in the immediatelypreceding sentence is the legal, valid and binding obligation of such ForeignSubsidiary Borrower.

 

(c)           This Agreement and each Note, if any,is in proper legal form under the laws of the jurisdiction in which suchForeign Subsidiary Borrower is organized and existing for the enforcementhereof or thereof against such Foreign Subsidiary Borrower under the laws ofsuch jurisdiction, and to ensure the legality, validity, enforceability,priority or admissibility in evidence of this Agreement and any such Note.  It is not necessary to ensure the legality,validity, enforceability, priority or admissibility in evidence of thisAgreement and any such Note that this Agreement, any Note or any other documentbe filed, registered or recorded with, or executed or notarized before, anycourt or other authority in the jurisdiction in which such Foreign SubsidiaryBorrower is organized and existing or that any registration charge or stamp orsimilar tax be paid on or in respect of this Agreement, any Note or any otherdocument, except for any such filing, registration or recording, or executionor notarization, as has been made or is not required to be made until thisAgreement, any Note or any other document is sought to be enforced and for anycharge or tax as has been timely paid.

 

(d)           The execution, delivery andperformance by such Foreign Subsidiary Borrower of this Agreement, any Note orthe other Loan Documents is, under applicable foreign exchange controlregulations of the jurisdiction in which such Foreign Subsidiary Borrower isorganized and existing, not subject to any notification or authorization exceptsuch as have been made or obtained or cannot be made or obtained until a laterdate.

 

Each borrowing by any Foreign Subsidiary Borrowerhereunder shall constitute a representation and warranty by each of the ParentBorrower and such Foreign Subsidiary Borrower as of the date of such borrowingsthat the conditions contained in this Section 4.03 have beensatisfied.

 

# ARTICLE V

#  

# ***Affirmative Covenants***

#  

Each Borrower covenants and agrees with each Lenderthat until the Termination Date such Borrower will, and will cause each of theRestricted Subsidiaries to:

 

SECTION 5.01.      ***Existence; Compliance withLaws; Businesses and Properties***.

 

### (a)           Do or cause to bedone all things reasonably necessary to preserve, renew and keep in full forceand effect its legal existence under the laws of its jurisdiction oforganization, except (i) to the extent that failure to do so could notreasonably be expected to have a Material Adverse Effect or (ii) asotherwise expressly permitted under Section 6.04 or Section 6.05.

 

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### (b)           Other than as couldnot reasonably be expected to have a Material Adverse Effect, (i) do orcause to be done all things reasonably necessary to obtain, preserve, renew,extend and keep in full force and effect the material rights, licenses,permits, franchises, authorizations, patents, copyrights, trademarks and tradenames necessary to the conduct of its business, (ii) comply in allmaterial respects with applicable laws, rules, regulations and decrees andorders of any Governmental Authority (including Environmental Laws and ERISA),whether now in effect or hereafter enacted and (iii) maintain and preserveall property necessary to the conduct of such business and keep such propertyin good repair, working order and condition (ordinary wear and tear, casualty and condemnation excepted) and fromtime to time make, or cause to be made, all needed repairs, renewals,additions, improvements and replacements thereto necessary in the reasonablejudgment of management to the conduct of its business.

###  

SECTION 5.02.      ***Insurance***.

 

### (a)           Keep its materialinsurable properties adequately insured in all material respects at all timesby financially sound and reputable insurers to such extent and against suchrisks, including fire and other risks insured against by extended coverage, asis customary with companies in the same or similar businesses operating in thesame or similar locations.

###  

### (b)           Cause all suchpolicies covering any Collateral to be endorsed or otherwise amended to includea customary lender’s loss payable endorsement and, to the extent available oncommercially reasonable terms, cause each such policy to provide that it shallnot be canceled, modified or not renewed (i) by reason of nonpayment ofpremium unless not less than 10 days’ prior written notice thereof is given bythe insurer to the Administrative Agent and the Collateral Agent (giving theAdministrative Agent and the Collateral Agent the right to cure defaults in thepayment of premiums) or (ii) for any other reason unless not less than 30days’ prior written notice thereof is given by the insurer to theAdministrative Agent and the Collateral Agent.

###  

### (c)           With respect to eachMortgaged Property, obtain flood insurance in such total amount as the AdministrativeAgent or the Required Lenders may from time to time require and is considerednormal and customary and at reasonable cost, if at any time the area in whichany improvements located on any Mortgaged Property is designated a “floodhazard area” in any Flood Insurance Rate Map published by the Federal EmergencyManagement Agency (or any successor agency), and otherwise comply with theNational Flood Insurance Program as set forth in the Flood Disaster ProtectionAct of 1973, as amended from time to time.

###  

SECTION 5.03.      ***Taxes***.  Pay and discharge when due all Taxes imposedupon it or upon its income or profits or in respect of its property, before thesame shall become overdue by more than 45 days; provided, however,that such payment and discharge shall not be required with respect to any suchTax (i) so long as the validity or amount thereof is being contested ingood faith by appropriate proceedings diligently conducted and with respect towhich adequate reserves in accordance with GAAP have been established or(ii) with respect to which the failure to pay or discharge could notreasonably be expected to have a Material Adverse Effect.

 

SECTION 5.04.      ***Financial Statements, Reports, etc***.  Furnish to the Administrative Agent (who willdistribute to each Lender):

 

(a)           as soon as available, but in anyevent not later than the fifth Business Day after the 90th day following theend of each fiscal year of the Parent Borrower, (i) its consolidatedbalance sheet and related statements of income, stockholders’ equity and cashflows showing the financial condition of the Parent Borrower and itsconsolidated subsidiaries as of the close of such fiscal year and the resultsof its operations and the operations of such Persons during such year, togetherwith comparative figures for the immediately preceding fiscal year, all inreasonable detail and prepared in accordance with GAAP, all audited by KPMG LLPor other independent public accountants of recognized national standing and(ii) an opinion of such accountants (which opinion shall be without a“going concern” or like qualification or exception and without anyqualification or exception as to the scope of such audit) to the effect thatsuch consolidated financial statements fairly present the financial conditionand results of operations of the Parent Borrower and its consolidatedsubsidiaries on a consolidated basis in accordance with GAAP (it 

 

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beingagreed that the furnishing of the Parent Borrower’s annual report onForm 10-K for such year, as filed with the SEC, will satisfy the ParentBorrower’s obligation under this Section 5.04(a)(i));

 

(b)           as soon as available, but in anyevent not later than the fifth Business Day after the 45th day following theend of each of the first 3 fiscal quarters of each fiscal year of the ParentBorrower, its consolidated balance sheet and related statements of income,stockholders’ equity and cash flows showing the financial condition of theParent Borrower and its consolidated subsidiaries as of the close of suchfiscal quarter and the results of its operations and the operations of suchPersons during such fiscal quarter and the then elapsed portion of the fiscalyear, and for each fiscal quarter occurring after the first anniversary of theClosing Date, comparative figures for the same periods in the immediatelypreceding fiscal year, all certified by one of its Financial Officers as fairlypresenting in all material respects the financial condition and results ofoperations of the Parent Borrower and its consolidated subsidiaries on aconsolidated basis in accordance with GAAP, subject to normal year-end auditadjustments and the absence of footnotes (it being agreed that the furnishingof the Parent Borrower’s quarterly report on Form 10-Q for such quarter,as filed with the SEC will satisfy the Parent Borrower’s obligation under this Section 5.04(b) withrespect to such quarter);

 

(c)           concurrently with any delivery ofSection 5.04 Financials, a certificate of a Financial Officer of theParent Borrower (i) certifying that to such Financial Officer’s knowledge,no Event of Default or Default has occurred and is continuing or, if such anEvent of Default or Default has occurred and is continuing, reasonablyspecifying the nature thereof, (ii) setting forth (x) to the extentapplicable, computations in reasonable detail demonstrating the Total NetLeverage Ratio as of the date of such financial statements and (y)  in thecase of a certificate delivered with the financial statements required by paragraph (a) above(commencing with the fiscal year ended December 31, 2008), setting forththe Parent Borrower’s calculation of Excess Cash Flow;

 

(d)           as soon as available, but in anyevent not later than the fifth Business Day after the 90th day after thecommencement of each fiscal year of the Parent Borrower, copy of theprojections by the Parent Borrower of the operating budget and cash flow budgetof the Parent Borrower and its subsidiaries for such fiscal year, suchprojections to be accompanied by a certificate of a Financial Officer of theParent Borrower to the effect that such Financial Officer believes suchprojections to have been prepared on the basis of reasonable assumptions;

 

(e)           simultaneously with the delivery ofany Section 5.04 Financials, the related consolidating financialstatements reflecting the adjustments necessary to eliminate the accounts ofUnrestricted Subsidiaries from such consolidated financial statements (but onlyto the extent such Unrestricted Subsidiaries would not be considered “minor”under Rule 3-10 of Regulation S-X under the Securities Act);

 

(f)            simultaneously with the delivery ofany Section 5.04 Financials, management’s discussion and analysis of theimportant operational and financial developments of the Parent Borrower and itsRestricted Subsidiaries during the respect fiscal year or fiscal quarter, asthe case may be; it being agreed that the furnishing of the Parent Borrower’sannual report on Form 10-K or quarterly report on Form 10-Q, as filedwith the SEC, will satisfy the Parent Borrower’s obligations under this Section 5.04(f);

 

(g)           after the request by any Lender(through the Administrative Agent), all documentation and other informationthat such Lender reasonably requests in order to comply with its ongoingobligations under applicable “know your customer” and anti-money launderingrules and regulations, including the USA PATRIOT Act; and

 

(h)           promptly, from time to time, suchother information regarding the operations, business, legal or corporateaffairs and financial condition of any Loan Party or any Restricted Subsidiary,or compliance with the terms of any Loan Document, as the Administrative Agentor any Lender (through the Administrative Agent) may reasonably request.

 

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Information required to be delivered pursuant to this Section 5.04shall be deemed to have been delivered if such information, or one or moreannual or quarterly reports containing such information, shall have been postedby the Administrative Agent on a SyndTrak, IntraLinks or similar site to whichthe Lenders have been granted access or shall be available (the “Platform”)on the website of the Securities and Exchange Commission at http://www.sec.govor on the website of the Parent Borrower. Information required to be delivered pursuant to this Section mayalso be delivered by electronic communications pursuant to procedures approvedby the Administrative Agent.  Each Lendershall be solely responsible for timely accessing posted documents andmaintaining its copies of such documents.

 

The Parent Borrower hereby acknowledges that(a) the Administrative Agent will make available to the Issuing Banks andthe Lenders materials and/or information provided by or on behalf of the ParentBorrower hereunder (collectively, “Borrower Materials”) by posting theBorrower Materials on the Platform and (b) certain of the Lenders (each, a“Public Lender”) may have personnel who do not wish to receive materialnon-public information with respect to the Parent Borrower or its Affiliates,or the respective securities of any of the foregoing, and who may be engaged ininvestment and other market-related activities with respect to such Persons’securities.  The Parent Borrower herebyagrees that it will use commercially reasonable efforts to identify thatportion of the Borrower Materials that may be distributed to the Public Lendersand that (w) all such Borrower Materials shall be clearly and conspicuouslymarked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shallappear prominently on the first page thereof; (x) by marking BorrowerMaterials “PUBLIC,” the Parent Borrower shall be deemed to have authorized theAdministrative Agent, the Issuing Banks and the Lenders to treat such BorrowerMaterials as not containing any material non-public information (although itmay be sensitive and proprietary) with respect to the Parent Borrower or itssecurities for purposes of United States Federal and state securities laws (provided,however, that to the extent such Borrower Materials constituteInformation, they shall be treated as set forth in Section 11.07);(y) all Borrower Materials marked “PUBLIC” are permitted to be made availablethrough a portion of the Platform designated “Public Investor”; and (z) theAdministrative Agent shall be entitled to treat any Borrower Materials that arenot marked “PUBLIC” as being suitable only for posting on a portion of thePlatform not designated “Public Investor.”

 

SECTION 5.05.      ***Notices***.  Promptly upon any Responsible Officer of theParent Borrower becoming aware thereof, furnish to the Administrative Agentnotice of the following:

 

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

 

(b)           the occurrence of any event that hashad, or could reasonably be expected to have, a Material Adverse Effect.

 

SECTION 5.06.      ***Information Regarding Collateral***.  Furnish to the Administrative Agent notice ofany change on or prior to the later to occur of (a) 30 days following theoccurrence of such change and (b) the earlier of the date of the requireddelivery of the Pricing Certificate following such change and the date which is45 days after the end of the most recently ended fiscal quarter following suchchange (i) in any Loan Party’s legal name, (ii) in the jurisdictionof organization or formation of any Loan Party or (iii) in any LoanParty’s identity or corporate structure; provided that no such noticeshall be required in connection with (A) the name change of CDRVInvestors, Inc. to VWR Funding, Inc. and (B) the conversion ofVWR International, Inc. from a corporation to a limited liability company.

 

SECTION 5.07.      ***Maintaining Records; Access to Properties andInspections***.  Keep properbooks of record and account in which full, true and correct entries inconformity with GAAP are made.  Permitany representatives designated by the Administrative Agent or any Lender tovisit and inspect during normal business hours the corporate, financial andoperating records and the properties of the Parent Borrower or the RestrictedSubsidiaries upon reasonable advance notice, and to make extracts from andcopies of such records, and permit any such representatives to discuss theaffairs, finances and condition of such Person with the officers thereof andindependent accountants therefor; provided that the Administrative Agentshall give the Parent Borrower an opportunity to participate in any discussionswith its accountants; provided, further, that in the absence ofthe existence of an Event of Default, (i) only the Administrative Agent onbehalf of the Lenders may exercise the rights of the Administrative Agent andthe Lenders under this Section 5.07 and (ii) theAdministrative Agent shall not 

 

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exercise its rights under this Section 5.07more often than two times during any fiscal year and only one such time shallbe at the Parent Borrower’s expense; provided,further, that whenan Event of Default exists, the Administrative Agent or any Lender and theirrespective designees may do any of the foregoing at the expense of the ParentBorrower at any time during normal business hours and upon reasonable advancenotice.

 

SECTION 5.08.      ***Use of Proceeds***.  The proceeds of the Term Loans, together withthe Equity Investment, the New Senior Notes and New Mezzanine Notes, shall beused solely to pay the cash consideration for the Merger, to repay the ExistingDebt and to pay Transaction Expenses. The proceeds of the Revolving Loans and Swingline Loans, shall be usedfor working capital, general corporate purposes and any other purpose notprohibited by this Agreement; provided, however, that up to$30,000,000 of the Revolving Loans may be drawn on the Closing Date and usedto  pay a portion of the cash considerationfor the Merger, repay a portion of the Existing Debt and to pay a portion ofthe Transaction Expenses.  The Letters ofCredit shall be used solely to support obligations of the Parent Borrower andits subsidiaries incurred for working capital, general corporate purposes andany other purpose not prohibited by this Agreement.

 

SECTION 5.09.      ***Further Assurances***.

 

### (a)           From time to timeduly authorize, execute and deliver, or cause to be duly authorized, executedand delivered, such additional instruments, certificates, financing statements,agreements or documents, and take all reasonable actions (including filing UCCand other financing statements but subject to the limitations set forth in theSecurity Documents), as the Administrative Agent or the Collateral Agent mayreasonably request, for the purposes of perfecting the rights of theAdministrative Agent, the Collateral Agent and the Secured Parties with respectto the Collateral (or with respect to any additions thereto or replacements orproceeds or products thereof or with respect to any other property or assetshereafter acquired by the Parent Borrower or any other Loan Party which may bedeemed to be part of the Collateral) pursuant hereto or thereto.

###  

### (b)           With respect to anyassets acquired by any Loan Party after the Closing Date of the type constitutingCollateral under the Guarantee and Collateral Agreement and as to which theCollateral Agent, for the benefit of the Secured Parties, does not have aperfected first priority (subject only to Permitted Liens, to the extent anysuch Permitted Liens would have priority over the Liens in favor of theAdministrative Agent pursuant to any applicable law) security interest, on orprior to the later to occur of (i) 30 days following such acquisition and(ii) the earlier of the date of the required delivery of the PricingCertificate following the date of such acquisition and the date which is 45days after the end of the most recently ended fiscal quarter (or such longerperiod as to which the Administrative Agent may consent), (x) execute anddeliver to the Administrative Agent and the Collateral Agent such amendments tothe Guarantee and Collateral Agreement or such other Security Documents as theAdministrative Agent deems necessary to grant to the Collateral Agent, for thebenefit of the Secured Parties, a security interest in such assets and (y) takeall commercially reasonable actions necessary to grant to, or continue onbehalf of, the Collateral Agent, for the benefit of the Secured Parties, a perfectedfirst priority security interest in such assets (subject only to PermittedLiens, to the extent any such Permitted Liens would have priority over theLiens in favor of the Administrative Agent pursuant to any applicable law),including the filing of UCC financing statements in such jurisdictions as maybe required by the Guarantee and Collateral Agreement or as may be reasonablyrequested by the Administrative Agent or the Collateral Agent.

###  

### (c)           With respect to anywholly owned Restricted Subsidiary (other than a Foreign Subsidiary or anExcluded Subsidiary or a Domestic Subsidiary that is a disregarded entity forU.S. federal income tax purposes owned by a non-disregarded non-U.S. entity)created or acquired after the Closing Date, on or prior to the later to occurof (i) 30 days following the date of such creation or acquisition and(ii) the earlier of the date of the required delivery of the PricingCertificate following such creation or acquisition and the date which is 45days after the end of the most recently ended fiscal quarter (or such longerperiod as to which the Administrative Agent may consent), (x) execute anddeliver to the Administrative Agent and the Collateral Agent such amendments tothe Guarantee and Collateral Agreement as the Administrative Agent deemsnecessary to grant to the Collateral Agent, for the benefit of the relevantSecured Parties, a valid, perfected first priority (subject only to PermittedLiens, to the extent any such Permitted Liens would have priority over the Liensin favor of the Administrative Agent pursuant to any applicable law) securityinterest in the Equity Interests in such new subsidiary that are owned by anyof the Loan Parties to the extent the same constitute Collateral under theterms of the Guarantee and Collateral Agreement, 

 

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### (y) deliverto the Collateral Agent the certificates, if any, representing any of suchEquity Interests that constitute certificated securities, together with undatedstock powers, in blank, executed and delivered by a duly authorized officer ofthe pledgor and (z) cause such Restricted Subsidiary (A) to become aparty to the Guarantee and Collateral Agreement, to the extent applicable, eachIntellectual Property Security Agreement and (B) to take such actionsnecessary to grant to the Collateral Agent, for the benefit of the SecuredParties, a perfected first priority (subject only to Permitted Liens, to the extentany such Permitted Liens would have priority over the Liens in favor of theAdministrative Agent pursuant to any applicable law) security interest in anyassets required to be Collateral pursuant to the Guarantee and CollateralAgreement and each Intellectual Property Security Agreement with respect tosuch Restricted Subsidiary, including, if applicable, the recording ofinstruments in the United States Patent and Trademark Office and the UnitedStates Copyright Office and the filing of UCC financing statements in suchjurisdictions as may be required by the Guarantee and Collateral Agreement, anyapplicable Intellectual Property Security Agreement or as may be reasonablyrequested by the Administrative Agent or the Collateral Agent.

###  

### (d)           With respect to anyEquity Interests in any Foreign Subsidiary (other than any Foreign SubsidiaryBorrower) that are acquired after the Closing Date by any Loan Party (includingas a result of formation of a new Foreign Subsidiary), on or prior to the laterto occur of (i) 30 days following the date of such acquisition and (ii) theearlier of the date of the required delivery of the Pricing Certificatefollowing the date of such acquisition and the date which is 45 days after theend of the most recently ended fiscal quarter (or such longer period as towhich the Administrative Agent may consent), (x) execute and deliver tothe Administrative Agent and the Collateral Agent such amendments to theGuarantee and Collateral Agreement as the Administrative Agent reasonably deemsnecessary in order to grant to the Collateral Agent, for the benefit of therelevant Secured Parties, a perfected first priority security interest (subjectonly to Permitted Liens, to the extent any such Permitted Liens would havepriority over the Liens in favor of the Administrative Agent pursuant to anyapplicable law) in the Equity Interests in such Foreign Subsidiary that areowned by the Loan Parties to the extent the same constitutes Collateral underthe terms of the Guarantee and Collateral Agreement (provided that(A) only first-tier Foreign Subsidiaries owned directly by such Loan Partyshall be pledged by such Loan Party, (B) 100% of the Equity Interests ofsuch Foreign Subsidiary shall be pledged by such Loan Party  (provided that only 65% of such EquityInterests shall secure the Domestic Obligations) and (C)  in the case ofany Equity Interests of any Foreign Subsidiaries owned by a Borrower that is aForeign Subsidiary, only first-tier Foreign Subsidiaries owned directly by suchBorrower shall be pledged and such Equity Interests shall secure only such Borrower’sObligations) and (y) deliver to the Collateral Agent any certificates representingany such Equity Interests that constitute certificated securities, togetherwith undated stock powers, in blank, executed and delivered by a dulyauthorized officer of the pledgor, as the case may be, and take such otheraction as may be reasonably requested by the Administrative Agent or theCollateral Agent to perfect the security interest of the Collateral Agentthereon (but subject to the limitations set forth in the Security Documents).

###  

### (e)           With respect to anyForeign Subsidiary designated as a Foreign Subsidiary Borrower, the ParentBorrower shall cause such Foreign Subsidiary to take all actions contemplatedby Section 9.08(g).

###  

### (f)            If, at any time andfrom time to time after the Closing Date, any wholly-owned Domestic Subsidiarythat is not a disregarded entity for U.S. federal income tax purposes owned bya non-disregarded non-U.S. entity ceases to constitute an Immaterial Subsidiaryin accordance with the definition of “Immaterial Subsidiary”, then the ParentBorrower shall cause such subsidiary to become an additional Loan Party andtake all the actions contemplated by Section 5.09(c) as ifsuch subsidiary were a newly-formed wholly-owned Domestic Subsidiary of the ParentBorrower.

###  

### (g)           With respect to anyfee interest in any real property located in the United States with a bookvalue in excess of $5,000,000 (as reasonably estimated by the Parent Borrower)acquired after the Closing Date by any Loan Party, within 90 days following thedate of such acquisition (or such longer period as to which the AdministrativeAgent may consent) (i) execute and deliver Mortgages in favor of theCollateral Agent, for the benefit of the Secured Parties, covering such realproperty and complying with the provisions herein and in the Security Documentsand (ii) comply with the requirements of Section 5.10 withrespect to any Mortgages to be provided after the Closing Date pursuant to suchSchedule.

###  

### (h)           Furthermore, to theextent Indebtedness outstanding under the Loans shall at any time be less thanthe amount originally set forth in any Mortgage on any Mortgaged Propertylocated in the State of New York or to 

 

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### theextent otherwise required by law to grant, preserve, protect or perfect theLiens created by such Mortgage and the validity or priority thereof, the ParentBorrower will, and will cause each of its applicable subsidiaries to, promptlytake all such further actions including the payment of any additional mortgagerecording taxes, fees, charges, costs and expenses required so to grant,preserve, protect or perfect the Liens created by such Mortgage to the maximumamount of Indebtedness by its terms secured thereby and the validity orpriority of any such Lien.

###  

Notwithstanding anything to the contrary in this Section 5.09or any other Security Document (1) the Collateral Agent shall not requirethe taking of a Lien on, or require the perfection of any Lien granted in, thoseassets as to which the cost of obtaining or perfecting such Lien (including anymortgage, stamp, intangibles or other tax or expenses relating to such Lien) isexcessive in relation to the benefit to the Lenders of the security affordedthereby as reasonably determined by the Parent Borrower and the AdministrativeAgent and (2) Liens required to be granted pursuant to this Section 5.09shall be subject to exceptions and limitations consistent with those set forthin the Security Documents as in effect on the Closing Date (to the extentappropriate in the applicable jurisdiction).

 

SECTION 5.10.      ***Post-Closing Obligations***.

 

### (a)           The Collateral Agentshall have received not later than 10 days after the Closing Date (unlessextended by the Administrative Agent in its sole discretion) an endorsement tothe general liability insurance certificate in form and substance reasonablysatisfactory to it.

###  

### (b)           The Collateral Agentshall have received not later than 60 days after the Closing Date (unlessextended by the Administrative Agent in its sole discretion):

###  

#### (i)           aMortgage encumbering each Mortgaged Property in favor of the Collateral Agent,for the benefit of the Secured Parties, duly executed and acknowledged by eachLoan Party that is the owner of or holder of any interest in such MortgagedProperty, and otherwise in form for recording in the recording office of eachapplicable political subdivision where each such Mortgaged Property issituated, together with such certificates, affidavits, questionnaires or returnsas shall be required in connection with the recording or filing thereof tocreate a lien under applicable Requirements of Law, and such financingstatements and any other instruments necessary to grant a mortgage lien underthe laws of any applicable jurisdiction, all of which shall be in form andsubstance reasonably satisfactory to the Collateral Agent:

####  

#### (ii)          withrespect to each Mortgaged Property, such consents, approvals, amendments,supplements, estoppels, tenant subordination agreements or other instruments asnecessary to consummate the Transactions or as shall reasonably be deemednecessary by the Collateral Agent in order for the owner or holder of the feeinterest constituting such Mortgaged Property to grant the Lien contemplated bythe Morgage with respect to such Mortgaged Property;

####  

#### (iii)         withrespect to each Mortgage, a policy of title insurance (or marked up titleinsurance commitment having the effect of a policy of title insurance) insuringthe Lien of such Mortgage as a valid first mortgage Lien on the MortgagedProperty and fixtures described therein in the amount reasonably acceptable tothe Collateral Agent, which policy (or such marked-up commitment) (each, a “TitlePolicy”) shall (A) be issued by the Title Company reasonably requestedby the Collateral Agent, (B) to the extent necessary and available,include such reinsurance arrangements (with provisions for direct access, ifnecessary) as shall be reasonably acceptable to the Collateral Agent,(C) contain a “tie-in” or “cluster” endorsement, if available underapplicable law (i.e., policies which insure against losses regardless oflocation or allocated value of the insured property up to a stated maximumcoverage amount), (D) have been supplemented by such endorsements (orwhere such endorsements are not available, opinions of special counsel,architects or other professionals reasonably acceptable to the CollateralAgent) as shall be reasonably requested by the Collateral Agent (includingendorsements on matters relating to usury, first loss, last dollar, zoning,contiguity, revolving credit, doing business, non-imputation, public roadaccess, survey, variable rate, environmental lien, subdivision, mortgagerecording tax, separate tax lot, revolving credit, and so-called comprehensivecoverage over covenants and restrictions), and (E) contain no exceptionsto title other than exceptions reasonably acceptable to the Collateral Agent;

 

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#### (iv)         withrespect to each Mortgaged Property, such affidavits, certificates, information(including financial data) and instruments of indemnification (including aso-called “gap” indemnification) as shall be required to induce the TitleCompany to issue the title policy/ies and endorsements contemplated above;

####  

#### (v)          evidencereasonably acceptable to the Collateral Agent of payment by the Parent Borrowerof all title policy premiums, search and examination charges, escrow chargesand related charges, mortgage recording taxes, fees, charges, costs and expensesrequired for the recording of the Mortgages and issuance of the title policiesreferred to above;

####  

#### (vi)         withrespect to each Mortgaged Property, copies of all leases in which the ParentBorrower or any Subsidiary holds the lessor’s interest or other agreementsrelating to possessory interests if any. To the extent any of the foregoing affect any Mortgaged Property, suchagreements shall (x) be subordinate to the Lien of the Mortgage to be recordedagainst such Mortgaged Property, either expressly by its terms or pursuant to asubordination, non-disturbance and attornment agreement in form and substancereasonably acceptable to the Collateral Agent, with respect to which theapplicable Loan Party shall have used its commercially reasonable efforts to obtainand (y) shall otherwise be reasonably acceptable to the Collateral Agent;

####  

#### (vii)        Surveyswith respect to each Mortgaged Property; provided that, if the ParentBorrower is able to obtain a “no change” affidavit acceptable to the TitleCompany to enable it to issue a Title Policy removing all survey exceptions andissuing all survey related endorsements, then a new Survey shall not berequested; and

####  

#### (viii)       acompleted Federal Emergency Management Agency Standard Flood HazardDetermination with respect to each Mortgaged Property.

####  

SECTION 5.11.      ***Designation of Subsidiaries***.

 

### (a)           The Parent Borrowermay designate any subsidiary (including any existing subsidiary and any newlyacquired or newly formed subsidiary) to be an Unrestricted Subsidiary unlesssuch subsidiary or any of its subsidiaries owns any Equity Interests orIndebtedness of, or owns or holds any Lien on, any property of, the ParentBorrower or any Restricted Subsidiary (other than solely any UnrestrictedSubsidiary of the subsidiary to be so designated); provided that

###  

#### (i)           anyUnrestricted Subsidiary must be an entity of which the Equity Interestsentitled to cast at least a majority of the votes that may be cast by allEquity Interests having ordinary voting power for the election of directors orPersons performing a similar function are owned, directly or indirectly, by theParent Borrower;

####  

#### (ii)          suchdesignation complies with the covenants described in Section 6.03(c);

####  

#### (iii)         noDefault or Event of Default shall have occurred and be continuing;

####  

#### (iv)         either:

####  

##### (A)          the Parent Borrower could incur atleast $1.00 of additional Indebtedness pursuant to the Total Net Leverage Ratiotest described in Section 6.01; or

#####  

##### (B)           the Total Net Leverage Ratio for theParent Borrower and its Restricted Subsidiaries would be less than or equal tosuch ratio immediately prior to such designation,

#####  

in each case on a proforma basis taking into account such designation; and

 

#### (v)          eachof:

 

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##### (A)          the subsidiary to be so designated;and

#####  

##### (B)           its subsidiaries

#####  

has not at the time ofdesignation, and does not thereafter, incur any Indebtedness pursuant to whichthe lender has recourse to any of the assets of the Parent Borrower or anyRestricted Subsidiary.  Furthermore, nosubsidiary may be designated as an Unrestricted Subsidiary hereunder unless itis also designated as an “Unrestricted Subsidiary” for purposes of the NewSenior Notes, the New Mezzanine Notes or any Junior Financing.

 

### (b)           The Parent Borrowermay designate any Unrestricted Subsidiary to be a Restricted Subsidiary; providedthat, immediately after giving effect to such designation, no Default or Eventof Default shall have occurred and be continuing and either:

###  

#### (i)           theParent Borrower could incur at least $1.00 of additional Indebtedness pursuantto the Total Net Leverage Ratio test described in Section 6.01; or

####  

#### (ii)          theTotal Net Leverage Ratio for the Parent Borrower and its RestrictedSubsidiaries would be less than or equal to such ratio immediately prior tosuch designation,

####  

in each case on a proforma basis taking into account such designation.

 

Any such designation by the Parent Borrower shall benotified by the Parent Borrower to the Administrative Agent by promptly filingwith the Administrative Agent a copy of the resolution of the board ofdirectors of the Parent Borrower or any committee thereof giving effect to suchdesignation and an Officer’s Certificate certifying that such designationcomplied with the foregoing provisions.

 

SECTION 5.12.      ***Maintenance of New York Process Agent.***  In the case of any Foreign SubsidiaryBorrower, maintain in New York, New York or at such other location inthe United States of America as may be reasonably satisfactory to theAdministrative Agent a Person acting as agent to receive on its behalf and onbehalf of its property service of process and capable of discharging thefunctions of the New York Process Agent set forth in Section 9.15(e).

 

SECTION 5.13.      ***Existing Notes.***  The Parent Borrower shall have caused anyExisting Notes not validly tendered in the Tender Offer (i) to cease, onor before the Closing Date, to be entitled to the benefit of substantially allof the restrictive covenants and certain events of default contained in theindenture applicable to such Existing Notes, (ii) defeased within30 days after the Closing Date or (iii) redeemed within 30 daysafter the Closing Date.

 

# ARTICLE VI

#  

# ***Negative Covenants***

#  

The Borrowers covenant and agree that, until theTermination Date, the Borrowers will not, nor will they cause or permit any ofthe Restricted Subsidiaries to:

 

SECTION 6.01.      ***Limitation on Incurrence of Indebtedness andIssuance of Disqualified Stock and Preferred Stock***.

 

### (a)           Directly orindirectly, create, incur, issue, assume, guarantee or otherwise becomedirectly or indirectly liable, contingently or otherwise (collectively, “incur”and collectively, an “incurrence”) with respect to any Indebtedness(including Acquired Indebtedness) and the Parent Borrower and the RestrictedGuarantors will not issue any shares of Disqualified Stock and will not permitany Restricted Subsidiary that is not a Guarantor to issue any shares ofDisqualified Stock or Preferred Stock; provided,**however,**that the Parent Borrower and the Restricted Guarantors mayincur Indebtedness (including Acquired Indebtedness) or issue shares ofDisqualified Stock, and any Restricted Subsidiary that is not a Guarantor mayincur Indebtedness (including Acquired Indebtedness), issue 

 

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### sharesof Disqualified Stock and issue shares of Preferred Stock, if the Total NetLeverage Ratio at the time such additional Indebtedness is incurred or suchDisqualified Stock or Preferred Stock is issued would have been no greater than6.75 to 1.0, determined on a pro forma basis (including a pro forma applicationof the net proceeds therefrom), as if the additional Indebtedness had beenincurred, or the Disqualified Stock or Preferred Stock had been issued, as thecase may be, and the application of proceeds therefrom had occurred at thebeginning of the most recently ended four fiscal quarters for whichSection 5.04 Financials have been delivered to the AdministrativeAgent;  provided, further,that any incurrence of Indebtedness or issuance of Disqualified Stock orPreferred Stock by a Restricted Subsidiary that is not a Guarantor pursuant tothis paragraph (a) is subject to the limitations of paragraph (g) below.

###  

### (b)           The limitations setforth in clause (a) will not apply to the following items:

###  

#### (i)           theIndebtedness under the Loan Documents (including any Incremental Term Loans orincrease in the Revolving Credit Commitments under Section 2.24) ofthe Parent Borrower or any of its Restricted Subsidiaries (including letters ofcredit and bankers’ acceptances thereunder);

####  

#### (ii)          theincurrence by the Parent Borrower and any Restricted Guarantor of Indebtednessrepresented by the New Senior Notes;

####  

#### (iii)         Indebtednessof the Parent Borrower and its Restricted Subsidiaries in existence on the ClosingDate (other than Indebtedness described in clauses (b)(i), (ii) and(xx) of this Section 6.01) and set forth in all materialrespects on Schedule 6.01 (including the Existing IntercompanyDebt);

####  

#### (iv)         Indebtedness(including Capitalized Lease Obligations), Disqualified Stock and PreferredStock incurred by the Parent Borrower or any of its Restricted Subsidiaries, tofinance the purchase, lease or improvement of property (real or personal) orequipment that is used or useful in the business of the Parent Borrower and itsRestricted Subsidiaries, whether through the direct purchase of assets or theCapital Stock of any Person owning such assets in an aggregate principalamount, together with any Refinancing Indebtedness in respect thereof and allother Indebtedness, Disqualified Stock and/or Preferred Stock incurred andoutstanding under this clause (iv), not to exceed $50,000,000 at anytime outstanding; so long as such Indebtedness exists at the date of such purchase,lease or improvement, or is created within 270 days thereafter;

####  

#### (v)          Indebtednessincurred by the Parent Borrower or any Restricted Subsidiary constituting reimbursementobligations with respect to bankers’ acceptances and letters of credit issuedin the ordinary course of business, including letters of credit in respect ofworkers’ compensation claims, or other Indebtedness with respect toreimbursement type obligations regarding workers’ compensation claims; provided,**however,**that upon thedrawing of such bankers’ acceptances and letters of credit or the incurrence ofsuch Indebtedness, such obligations are reimbursed within 45 days followingsuch drawing or incurrence;

####  

#### (vi)         Indebtednessarising from agreements of the Parent Borrower or a Restricted Subsidiaryproviding for indemnification, adjustment of purchase price or similarobligations, in each case, incurred or assumed in connection with thedisposition of any business, assets or a Subsidiary, other than guarantees ofIndebtedness incurred by any Person acquiring all or any portion of such business,assets or a Subsidiary for the purpose of financing such acquisition; provided,**however, that such Indebtedness is not reflected onthe balance sheet (other than by application of FIN 45 as a result of anamendment to an obligation in existence on the Closing Date) of the ParentBorrower or any Restricted Subsidiary (contingent obligations referred to in afootnote to financial statements and not otherwise reflected on the balancesheet will not be deemed to be reflected on such balance sheet for purposes ofthis clause (vi));

####  

#### (vii)        Indebtednessof (A) the Parent Borrower to any Restricted Subsidiary and (B) anyRestricted Subsidiary to the Parent Borrower or to any other RestrictedSubsidiary; provided that any such Indebtedness owing by the Parent Borroweror a Guarantor to a Restricted Subsidiary that is not a Guarantor is expresslysubordinated in right of payment to the Obligations; provided,**further,**that anysubsequent issuance or transfer of any Capital Stock or any other event whichresults in any Restricted Subsidiary ceasing to be a Restricted 

 

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#### Subsidiary or any other subsequent transfer of any such Indebtedness(except to the Parent Borrower or another Restricted Subsidiary or any pledgeof such Indebtedness constituting a Permitted Lien) shall be deemed, in eachcase, to be an incurrence of such Indebtedness not permitted by this clause(vii);

####  

#### (viii)       sharesof Preferred Stock of a Restricted Subsidiary issued to the Parent Borrower oranother Restricted Subsidiary, provided, that any subsequent issuance ortransfer of any Capital Stock or any other event which results in any suchRestricted Subsidiary ceasing to be a Restricted Subsidiary or any othersubsequent transfer of any such shares of Preferred Stock (except to the ParentBorrower or a Restricted Subsidiary) shall be deemed in each case to be anissuance of such shares of Preferred Stock not permitted by this clause(viii);

####  

#### (ix)         HedgingObligations (excluding Hedging Obligations entered into for speculative purposes)for the purpose of limiting interest rate risk with respect to any Indebtednesspermitted under this Section 6.01, exchange rate risk or commoditypricing risk;

####  

#### (x)          obligationsin respect of customs, stay, performance, bid, appeal and surety bonds and completionguarantees and other obligations of a like nature provided by the ParentBorrower or any of its Restricted Subsidiaries in the ordinary course ofbusiness;

####  

#### (xi)         (A) Indebtednessor Disqualified Stock of the Parent Borrower or any Restricted Guarantor andIndebtedness, Disqualified Stock or Preferred Stock of any RestrictedSubsidiary that is not a Guarantor in an aggregate principal amount orliquidation preference equal to 200.0% of the net cash proceeds received by theParent Borrower and its Restricted Subsidiaries since immediately after theClosing Date from the issue or sale of Equity Interests of the Parent Borroweror cash contributed to the capital of the Parent Borrower (in each case, otherthan Equity Interests the proceeds of which are used to fund the Transactionsand proceeds of Disqualified Stock or sales of Equity Interests to, orcontributions received from, the Parent Borrower or any of its Subsidiaries) asdetermined in accordance with paragraphs (c) and (d) of thedefinition of Restricted Payment Applicable Amount (to the extent such net cashproceeds or cash have not been applied pursuant to such clauses to makeRestricted Payments or other Investments, payments or exchanges pursuant to of Section 6.03(b) orto make Permitted Investments (other than Permitted Investments specified in clauses(a) and (c) of the definition thereof); providedthat any amounts incurred in excess of the aggregate amount of such net cashproceeds shall be Subordinated Indebtedness not subject to scheduledamortization and with a final maturity not prior to the date occurring 180 daysfollowing the Term Loan Maturity Date; and (B) Indebtedness orDisqualified Stock of the Parent Borrower or a Guarantor and Indebtedness, DisqualifiedStock or Preferred Stock of any Restricted Subsidiary that is not a Guarantornot otherwise permitted hereunder in an aggregate principal amount orliquidation preference, which when aggregated with the principal amount andliquidation preference of all other Indebtedness, Disqualified Stock andPreferred Stock then outstanding and incurred pursuant to this clause (xi)(B),does not at any one time outstanding exceed $150,000,000 (it being understoodthat any Indebtedness, Disqualified Stock or Preferred Stock incurred pursuantto this clause (xi)(B) shall cease to be deemed incurred oroutstanding for purposes of this clause (xi)(B) but shall bedeemed incurred for the purposes of Section 6.01(a) from andafter the first date on which the Parent Borrower or such Restricted Subsidiarycould have incurred such Indebtedness, Disqualified Stock or Preferred Stockunder Section 6.01(a) without reliance on this clause (xi)(B);

####  

#### (xii)        theincurrence by the Parent Borrower or any Restricted Subsidiary of Indebtedness,Disqualified Stock or Preferred Stock which serves to refund or refinance anyIndebtedness, Disqualified Stock or Preferred Stock permitted under Section 6.01(a) andclauses (ii), (iii), (iv), (xi)(A), (xiii), (xviii)and (xx) of this Section 6.01(b) or any Indebtedness,Disqualified Stock or Preferred Stock issued to so refund or refinance suchIndebtedness, Disqualified Stock or Preferred Stock, including, in each case,additional Indebtedness, Disqualified Stock or Preferred Stock incurred to paypremiums (including tender premiums), defeasance costs and fees and expenses inconnection therewith (collectively, the “Refinancing Indebtedness”)prior to its respective maturity; provided,**however,that such Refinancing Indebtedness:

 

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##### (A)          has a Weighted Average Life toMaturity at the time such Refinancing Indebtedness is incurred which is notless than the remaining Weighted Average Life to Maturity of the Indebtedness,Disqualified Stock or Preferred Stock being refunded or refinanced,

#####  

##### (B)           to the extent such RefinancingIndebtedness refinances (1) Indebtedness subordinated or paripassuto the Obligations, such Refinancing Indebtedness is subordinated or pari passu to the Obligations at least to thesame extent as the Indebtedness being refinanced or refunded or(2) Disqualified Stock or Preferred Stock, such Refinancing Indebtednessmust be Disqualified Stock or Preferred Stock, respectively, and

#####  

##### (C)           shall not include:

#####  

###### (1)          Indebtedness,Disqualified Stock or Preferred Stock of a Restricted Subsidiary that is not aGuarantor that refinances Indebtedness, Disqualified Stock or Preferred Stockof the Parent Borrower;

######  

###### (2)          Indebtedness,Disqualified Stock or Preferred Stock of a Restricted Subsidiary that is not aGuarantor that refinances Indebtedness, Disqualified Stock or Preferred Stockof a Restricted Guarantor; or

######  

###### (3)          Indebtedness,Disqualified Stock or Preferred Stock of the Parent Borrower or a RestrictedSubsidiary that refinances Indebtedness, Disqualified Stock or Preferred Stockof an Unrestricted Subsidiary;

######  

provided, further, that anyincurrence of Indebtedness or issuance of Disqualified Stock or Preferred Stockby any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant tothis clause (xii) (solely as it relates to Indebtedness under clause(xiii) and Section 6.01(a)) shall be subject to the limitationsset forth in Section 6.01(g) to the same extent as theIndebtedness refinanced;

 

#### (xiii)       Indebtedness,Disqualified Stock or Preferred Stock (x) of the Parent Borrower or a RestrictedSubsidiary (other than a Foreign Subsidiary) incurred to finance anacquisition, (y) of Persons (other than foreign Persons) that are acquiredby the Parent Borrower or any Restricted Subsidiary or Persons merged into theParent Borrower or a Restricted Subsidiary (other than a Foreign Subsidiary) inaccordance with the terms of this Agreement or (z) that is assumed by theParent Borrower or any Restricted Subsidiary (other than a Foreign Subsidiary)in connection with such acquisition so long as:

####  

##### (A)          no Default exists or shall resulttherefrom;

#####  

##### (B)           any Indebtedness, Disqualified Stockor Preferred Stock incurred in reliance on clause (x) above shall not beSecured Indebtedness and shall not mature (and shall not be mandatorilyredeemable in the case of Disqualified Stock of Preferred Stock) or require anypayment of principal (other than in a manner consistent with the terms of theNew Senior Notes Documentation), in each case, prior to the date which is 91days after the Term Loan Maturity Date;

#####  

##### (C)           any Indebtedness, Disqualified Stockor Preferred Stock incurred in reliance on clause (y) or (z)above shall not have been incurred in contemplation of such acquisition andeither (1) the aggregate principal amount of such Indebtednessconstituting Secured Indebtedness, together with all Refinancing Indebtednessin respect thereof, shall not exceed $100,000,000 or (2) after giving proforma effect to such acquisition or merger, the Total Net Leverage Ratio isless than the Total Net Leverage Ratio immediately prior to such acquisition ormerger;

#####  

##### (D)          after giving pro forma effect to suchacquisition or merger either (1) the Total Net Leverage Ratio is less thanthe Total Net Leverage Ratio test immediately prior to such 

 

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##### acquisition or merger or(2) the Parent Borrower would be permitted to incur at least $1.00 ofadditional Indebtedness pursuant to the Total Net Leverage Ratio test describedin Section 6.01(a);

#####  

provided that any incurrence ofIndebtedness or issuance of Disqualified Stock or Preferred Stock by aRestricted Subsidiary that is not a Guarantor pursuant to this clause (xiii)is subject to the limitations of paragraph (g) below;

 

#### (xiv)       Indebtednessarising from the honoring by a bank or other financial institution of a check,draft or similar instrument drawn against insufficient funds in the ordinarycourse of business, provided that such Indebtedness is extinguishedwithin two Business Days of its incurrence;

####  

#### (xv)        Indebtednessof the Parent Borrower or any of its Restricted Subsidiaries supported by aLetter of Credit in a principal amount not to exceed the face amount of suchLetter of Credit;

####  

#### (xvi)       (A) anyguarantee by the Parent Borrower or a Restricted Subsidiary of Indebtedness orother obligations of any Restricted Subsidiary so long as such Indebtedness ispermitted under this Agreement, or (B) any guarantee by a RestrictedSubsidiary of Indebtedness of the Parent Borrower; provided that, ineach case, (x) such Restricted Subsidiary shall comply with its obligationsunder Section 5.09 and (y) in the case of any guarantee ofIndebtedness of the Parent Borrower or any Subsidiary Guarantor by anyRestricted Subsidiary that is not a Subsidiary Guarantor, such RestrictedSubsidiary becomes a Subsidiary Guarantor under this Agreement;

####  

#### (xvii)      Indebtedness,Disqualified Stock or Preferred Stock of any Foreign Subsidiary(A) incurred under local credit facilities for general corporate purposesnot exceeding, as to all such Foreign Subsidiaries, $50,000,000 in theaggregate at any one time outstanding, (B) incurred to finance or assumedin connection with the Foreign Subsidiary Reorganization or (C) whichserves to refund or refinance any Indebtedness under clauses (i), (ii) or(xx) hereof or the payment of any dividend to the Parent Borrower or anyRestricted Subsidiary in a principal amount not to exceed $200,000,000 in theaggregate at any one time outstanding;  providedthat any incurrence of Indebtedness or issuance of Disqualified Stock orPreferred Stock by a Restricted Subsidiary that is not a Guarantor pursuant to clause (xvii)(B) issubject to the limitations of paragraph (g) below;

####  

#### (xviii)     Indebtedness,Disqualified Stock or Preferred Stock (x) of a Restricted Subsidiary that is aForeign Subsidiary incurred to finance an acquisition, (y) of foreignPersons that are acquired by the Parent Borrower or any Restricted Subsidiaryor merged into a Restricted Subsidiary that is a Foreign Subsidiary in accordancewith the terms of this Agreement or (z) that is assumed by a RestrictedSubsidiary that is a Foreign Subsidiary in connection with such acquisition solong as:

####  

##### (A)          no Default exists or shall resulttherefrom;

#####  

##### (B)           any Indebtedness, Disqualified Stockor Preferred Stock incurred in reliance on clause (x) above shall notexceed the fair market value of the assets or Person being acquired (asdetermined in good faith by the Parent Borrower; provided that with respect toany acquisition with a fair market value in excess of $20,000,000, suchdetermination shall be made in good faith by the Board of Directors of theParent Borrower);

#####  

##### (C)           any Indebtedness, Disqualified Stockor Preferred Stock incurred in reliance on clause (y) or (z)above shall not have been incurred in contemplation of such acquisition;

#####  

##### (D)          after giving *pro forma*effect to such acquisition or merger the Total Net Leverage Ratio is less thanthe Total Net Leverage Ratio immediately prior to such acquisition or merger;

#####  

#### (xix)        Indebtednessissued by the Parent Borrower or any of its Restricted Subsidiaries to future,current or former officers, directors, employees and consultants thereof or anydirect or indirect parent thereof, their respective estates, heirs, familymembers, spouses or former spouses, in each case to finance the 

 

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#### purchase or redemption of Equity Interests of the Parent Borrower, aRestricted Subsidiary or any of their respective direct or indirect parentcompanies to the extent described in Section 6.03(b)(iv);

####  

#### (xx)         theincurrence by the Parent Borrower and any Restricted Guarantor of Indebtednessrepresented by the New Senior Notes and the New Mezzanine Notes and, in eachcase, any refinancing thereof;

####  

#### (xxi)        Indebtednessevidenced by Existing Notes not tendered pursuant to the Tender Offer;

####  

#### (xxii)       cashmanagement obligations and Indebtedness in respect of netting services,overdraft facilities, employee credit card programs, Cash Pooling Arrangementsor similar arrangements in connection with cash management and depositaccounts; provided that, with respect to any Cash Pooling Arrangements,the total amount of all deposits subject to any such Cash Pooling Arrangementat all times equals or exceeds the total amount of overdrafts that may besubject to such Cash Pooling Arrangements;

####  

#### (xxiii)      Indebtednessof the Parent Borrower or any of its subsidiaries in respect of Sale andLease-Back Transactions;

####  

#### (xxiv)     Indebtednessof the Parent Borrower or any of its subsidiaries incurred to finance insurancepremiums in the ordinary course of business;

####  

#### (xxv)      Indebtednessrepresenting deferred compensation to employees of any Borrower or anyRestricted Subsidiary incurred in the ordinary course of business; and

####  

#### (xxvi)     Indebtedness,Disqualified Stock or Preferred Stock of the Parent Borrower or a RestrictedSubsidiary incurred to finance or assumed in connection with an acquisition ina principal amount not to exceed $75,000,000 in the aggregate at any one timeoutstanding together with all other Indebtedness, Disqualified Stock and/orPreferred Stock issued under this clause (xviii); provided thatany incurrence of Indebtedness or issuance of Disqualified Stock or PreferredStock by a Restricted Subsidiary that is not a Guarantor pursuant to this clauses(xviii) is subject to the limitations of paragraph (g) below.

####  

### (c)           For purposes ofdetermining compliance with this Section 6.01:

###  

#### (i)           inthe event that an item of Indebtedness, Disqualified Stock or Preferred Stock(or any portion thereof) meets the criteria of more than one of the categoriesof permitted Indebtedness, Disqualified Stock or Preferred Stock described in Section 6.01(b) oris entitled to be incurred pursuant to Section 6.01(a), the ParentBorrower, in its sole discretion, may classify or reclassify such item (otherthan amounts described in clauses (xvii) and (xviii) of clause(b) above, in the case of a reclassification as an incurrence pursuantto Section 6.01(a)) of Indebtedness, Disqualified Stock orPreferred Stock (or any portion thereof) and will only be required to includethe amount and type of such Indebtedness, Disqualified Stock or Preferred Stockin one of the above permitted clauses; and

####  

#### (ii)          atthe time of incurrence or permitted reclassification, the Parent Borrower willbe entitled to divide and classify an item of Indebtedness in one or more typesof Indebtedness, Disqualified Stock or Preferred Stock described in Section 6.01(a) or(b).

####  

### (d)           The accrual ofinterest, the accretion of accreted value and the payment of interest ordividends in the form of additional Indebtedness, Disqualified Stock orPreferred Stock, as applicable, will not be deemed to be an incurrence ofIndebtedness, Disqualified Stock or Preferred Stock for purposes of this Section 6.01.

###  

### (e)           For purposes ofdetermining compliance with any dollar-denominated restriction on theincurrence of Indebtedness, the dollar-equivalent principal amount ofIndebtedness denominated in a foreign currency shall be calculated based on therelevant currency exchange rate in effect on the date such Indebtedness wasincurred, in the case of term debt, or first committed, in the case ofrevolving credit debt; provided that if such Indebtedness is incurred torefinance other Indebtedness denominated in a foreign currency, and suchrefinancing would cause the 

 

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### applicabledollar-denominated restriction to be exceeded if calculated at the relevantcurrency exchange rate in effect on the date of such refinancing, suchdollar-denominated restriction shall be deemed not to have been exceeded solong as the principal amount of such refinancing Indebtedness does not exceedthe principal amount of such Indebtedness being refinanced.

###  

### (f)            The principalamount of any Indebtedness incurred to refinance other Indebtedness, ifincurred in a different currency from the Indebtedness being refinanced, shallbe calculated based on the currency exchange rate applicable to the currenciesin which such respective Indebtedness is denominated that is in effect on thedate of such refinancing.

###  

### (g)           Notwithstandinganything to the contrary contained in Section 6.01(a) or (b),no Restricted Subsidiary of the Parent Borrower that is not a SubsidiaryGuarantor shall incur any Indebtedness or issue any Disqualified Stock orPreferred Stock in reliance on Section 6.01(a) or (b)(xiii),(b)(xvii)(B), or (b)(xxvi) (the “Limited Non-Guarantor DebtExceptions”) if the amount of such Indebtedness, Disqualified Stock or PreferredStock, when aggregated with the amount of all other Indebtedness, DisqualifiedStock or Preferred Stock outstanding under such Limited Non-Guarantor DebtExceptions, together with any Refinancing Indebtedness in respect thereof,would exceed $100,000,000; provided that in no event shall any Indebtedness,Disqualified Stock or Preferred Stock of any Restricted Subsidiary that is nota Subsidiary Guarantor (i) existing at the time it became a RestrictedSubsidiary or (ii) assumed in connection with any acquisition, merger oracquisition of minority interests of a non-Wholly-Owned Subsidiary (and in thecase of clauses (i) and (ii), not created in contemplationof such Person becoming a Restricted Subsidiary or such acquisition, merger oracquisition of minority interests) be deemed to be Indebtedness outstandingunder the Limited Non-Guarantor Debt Exceptions for purposes of this Section 6.01(g).

###  

SECTION 6.02.      ***Liens***.  Directly or indirectly, create, incur, assumeor suffer to exist any Lien (except Permitted Liens) on any asset or propertyof the Parent Borrower or any Restricted Subsidiary, or any income or profitstherefrom, or assign or convey any right to receive income therefrom.

 

SECTION 6.03.      ***Restricted Payments***.  Directly or indirectly, make any RestrictedPayment, other than:

 

(a)           Restricted Payments in an amount,together with the aggregate amount of all other Restricted Payments made by theParent Borrower and its Restricted Subsidiaries after the Closing Date (includingRestricted Payments permitted by clauses (i), (ii) (withrespect to the payment of dividends on Refunding Capital Stock pursuant to clause (C) thereofonly), (vi)(C) and (ix) of Section 6.03(b),but excluding all other Restricted Payments permitted by Section 6.03(b))not to exceed the Restricted Payment Applicable Amount; provided that(i) no Default shall have occurred and be continuing or would occur as aconsequence thereof; and (ii) immediately after giving effect to suchtransaction on a pro forma**basis, theParent Borrower could incur $1.00 of additional Indebtedness pursuant to theTotal Net Leverage Ratio test described in Section 6.01(a).

 

(b)           Section 6.03(a) willnot prohibit:

 

#### (i)           thepayment of any dividend within 60 days after the date of declaration thereof,if at the date of declaration such payment would have complied with theprovisions of this Agreement;

####  

#### (ii)          (A)          the redemption, repurchase, retirementor other acquisition of any (1) Equity Interests (“Treasury CapitalStock”) of the Parent Borrower or any Restricted Subsidiary or SubordinatedIndebtedness of the Parent Borrower or any Guarantor or (2) EquityInterests of any direct or indirect parent company of the Parent Borrower, inthe case of each of clause (1) and (2), in exchange for, orout of the proceeds of the substantially concurrent sale (other than to theParent Borrower or a Restricted Subsidiary) of, Equity Interests of the ParentBorrower, or any direct or indirect parent company of the Parent Borrower tothe extent contributed to the capital of the Parent Borrower or any RestrictedSubsidiary (in each case, other than any Disqualified Stock) (“RefundingCapital Stock”), (B) the declaration and payment of dividends on theTreasury Capital Stock out of the proceeds of the substantially concurrent sale(other than to the Parent Borrower or a Restricted Subsidiary) of the RefundingCapital Stock, and (C) if immediately prior to the 

 

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#### retirement of Treasury Capital Stock, the declaration and payment ofdividends thereon was permitted under clauses (vi)(A) or (B) ofthis Section 6.03(b), the declaration and payment of dividends onthe Refunding Capital Stock (other than Refunding Capital Stock the proceeds ofwhich were used to redeem, repurchase, retire or otherwise acquire any EquityInterests of any direct or indirect parent company of the Parent Borrower) inan aggregate amount per year no greater than the aggregate amount of dividendsper annum that were declarable and payable on such Treasury Capital Stockimmediately prior to such retirement;

####  

#### (iii)         theredemption, repurchase or other acquisition or retirement of (A) the NewSenior Notes in an amount equal to the aggregate principal amount ofprepayments of Term Loans made by the Administrative Borrower pursuant to Section 2.12,2.13(b) or 2.13(c) on a dollar for dollar basis (or inthe case of any prepayment of Euro Term Loans, the Dollar Equivalent ascalculated on the date of such prepayment) or (B) the New Senior Notes orSubordinated Indebtedness of the Parent Borrower or a Restricted Guarantor madeby exchange for, or out of the proceeds of the substantially concurrent saleof, new Indebtedness of the Parent Borrower or a Restricted Guarantor, as thecase may be, which is incurred in compliance with Section 6.01 solong as in the case of the clause (B):

####  

##### (I)                                    theprincipal amount (or accreted value, if applicable) of such new Indebtednessdoes not exceed the principal amount of (or accreted value, if applicable),plus any accrued and unpaid interest on, the Indebtedness being so redeemed,repurchased, acquired or retired for value, plus the amount of any premiumrequired to be paid under the terms of the instrument governing theIndebtedness being so redeemed, repurchased, acquired or retired and any feesand expenses incurred in connection with the issuance of such new Indebtedness;

#####  

##### (II)                                solelyin the case of Subordinated Indebtedness, such new Indebtedness is subordinatedto the Obligations at least to the same extent as such Subordinated Indebtednessso purchased, exchanged, redeemed, repurchased, acquired or retired for value;

#####  

##### (III)                            suchnew Indebtedness has a final scheduled maturity date equal to or later than thefinal scheduled maturity date of the Indebtedness being so redeemed, repurchased,acquired or retired; and

#####  

##### (IV)                            suchnew Indebtedness has a Weighted Average Life to Maturity equal to or greaterthan the remaining Weighted Average Life to Maturity of the Indebtedness beingso redeemed, repurchased, acquired or retired;

#####  

#### (iv)         aRestricted Payment to pay for the repurchase, retirement, redemption or otheracquisition or retirement for value of Equity Interests (other thanDisqualified Stock) of the Parent Borrower or any of its direct or indirectparent companies held by any future, present or former employee, director orconsultant (or any of their successors, heirs, estates or assigns) of theParent Borrower, any of its Subsidiaries or any of their respective direct orindirect parent companies pursuant to any management unit purchase agreement,management equity plan or stock option plan or any other management or employeebenefit plan or agreement; provided*,*however*,* that the aggregate Restricted Payments made under this clause (iv) donot exceed in any calendar year $25,000,000 (with unused amounts in anycalendar year being carried over to succeeding calendar years subject to amaximum of $50,000,000 in any calendar year); provided,**further, that such amount in any calendar year maybe increased by an amount not to exceed:

####  

##### (A)          the cash proceeds from the sale ofEquity Interests (other than Disqualified Stock) of the Parent Borrower and, tothe extent contributed to the capital of the Parent Borrower, Equity Interestsof any of the direct or indirect parent companies of the Parent Borrower, ineach case to members of management, directors or consultants of the ParentBorrower, any of its subsidiaries or any of their respective direct or indirectparent companies that occurs after the Closing Date (other than EquityInterests the proceeds of which are used to fund the Transactions), to theextent the cash proceeds from the sale of such Equity Interests have nototherwise been applied to the payment of Restricted Payments by virtue of Section 6.03(a);plus

 

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##### (B)           the cash proceeds of key man lifeinsurance policies received by the Parent Borrower or any of its RestrictedSubsidiaries after the Closing Date; less

#####  

##### (C)           the amount of any Restricted Paymentspreviously made with the cash proceeds described in clauses (A) and(B) of this clause (iv);

#####  

and provided,**further,**that cancellation of Indebtedness owing to the ParentBorrower from members of management of the Parent Borrower, any of itssubsidiaries or its direct or indirect parent companies in connection with arepurchase of Equity Interests of the Parent Borrower or any of the ParentBorrower’s direct or indirect parent companies will not be deemed to constitutea Restricted Payment for purposes of this Agreement;

 

#### (v)          thedeclaration and payment of dividends to holders of any class or series ofDisqualified Stock of the Parent Borrower or any of its Restricted Subsidiariesissued in accordance with Section 6.01;

####  

#### (vi)         (A) the declaration and payment of dividends to holders of any class or series ofDesignated Preferred Stock (other than Disqualified Stock) issued by the ParentBorrower or any of its Restricted Subsidiaries after the Closing Date, providedthat the amount of dividends paid pursuant to this clause (A) shallnot exceed the aggregate amount of cash actually received by the ParentBorrower or a Restricted Subsidiary from the issuance of such DesignatedPreferred Stock;

####  

##### (B)            a Restricted Payment to a direct orindirect parent company of the Parent Borrower, the proceeds of which will beused to fund the payment of dividends to holders of any class or series ofDesignated Preferred Stock (other than Disqualified Stock) of such parentcorporation issued after the Closing Date, provided that the amount ofRestricted Payments paid pursuant to this clause (B) shall notexceed the aggregate amount of cash actually contributed to the capital of theParent Borrower from the sale of such Designated Preferred Stock; or

#####  

##### (C)            the declaration and payment ofdividends on Refunding Capital Stock that is Preferred Stock in excess of thedividends declarable and payable thereon pursuant to clause (ii) ofthis Section 6.03(b);

#####  

provided,**however,**in the case of each of clause (A), (B) and(C) of this clause (vi), that for the most recentlyended four full fiscal quarters for which internal financial statements areavailable immediately preceding the date of issuance of such DesignatedPreferred Stock or the declaration of such dividends on Refunding Capital Stockthat is Preferred Stock, after giving effect to such issuance or declaration ona pro forma basis, the Parent Borrower could incur $1.00 of additionalIndebtedness pursuant to the Total Net Leverage Test described in Section 6.01(a);

 

#### (vii)        Investmentsin Unrestricted Subsidiaries having an aggregate fair market value, taken togetherwith all other Investments made pursuant to this clause (vii) thatare at the time outstanding, without giving effect to any distribution pursuantto clause (xvi) of this Section 6.03(b) or thesale of an Unrestricted Subsidiary to the extent the proceeds of such sale donot consist of cash or marketable securities, not to exceed 1.5% of TotalAssets at the time of such Investment (with the fair market value of each Investmentbeing measured at the time made and without giving effect to subsequent changesin value);

####  

#### (viii)       repurchasesof Equity Interests deemed to occur upon exercise of stock options or warrantsif such Equity Interests represent a portion of the exercise price of suchoptions or warrants;

####  

#### (ix)         thedeclaration and payment of dividends on the Parent Borrower’s common stock (ora Restricted Payment to any direct or indirect parent entity to fund a paymentof dividends on such entity’s common stock), following the first public EquityOffering of such common stock after the Closing Date, of up to 6% per annum ofthe net cash proceeds received by (or, in the case of a Restricted Payment to adirect or indirect parent entity, contributed to the capital of) the ParentBorrower in or from any such public Equity Offering;

####  

#### (x)          RestrictedPayments that are made with Excluded Contributions;

 

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#### (xi)         otherRestricted Payments in an aggregate amount taken together with all otherRestricted Payments made pursuant to this clause (xi) not to exceed$25,000,000;

####  

#### (xii)        distributionsor payments of Receivables Fees;

####  

#### (xiii)       anyRestricted Payment used to fund the Transactions and the fees and expensesrelated thereto or owed to Affiliates, in each case to the extent permittedunder Section 6.06;

####  

#### (xiv)       therepurchase, redemption or other acquisition or retirement for value of any NewSenior Notes or New Mezzanine Notes or other Subordinated Indebtedness upon theoccurrence of a Change of Control (so long as such Change of Control has beenwaived by the Required Lenders);

####  

#### (xv)        thedeclaration and payment of dividends or the payment of other distributions bythe Parent Borrower to, or the making of loans or advances to, any of theirrespective direct or indirect parents or the equity interest holders thereof inamounts required for any direct or indirect parent companies or the equityinterest holders thereof to pay, in each case without duplication,

####  

##### (A)          franchise taxes and other fees, taxesand expenses required to maintain their corporate existence;

#####  

##### (B)           federal, foreign, state and localincome or franchise taxes (or any alternative tax in lieu thereof); providedthat, in each fiscal year, the amount of such payments shall be equal to theamount that the Parent Borrower and its Restricted Subsidiaries would berequired to pay in respect of federal, foreign, state and local income orfranchise taxes if such entities were corporations paying taxes separately fromany parent entity at the highest combined applicable federal, foreign, state,local or franchise tax rate for such fiscal year;

#####  

##### (C)           customary salary, bonus and otherbenefits payable to officers and employees of any direct or indirect parentcompany of the Parent Borrower to the extent such salaries, bonuses and otherbenefits are reasonably attributable to the ownership or operation of theParent Borrower and its Restricted Subsidiaries;

#####  

##### (D)          general corporate operating andoverhead costs and expenses of any direct or indirect parent company of theParent Borrower to the extent such costs and expenses are reasonably attributableto the ownership or operation of the Parent Borrower and its RestrictedSubsidiaries;

#####  

##### (E)           amounts payable to the Sponsorpursuant to the Sponsor Management Agreement as in effect on the Closing Date;

#####  

##### (F)           fees and expenses other than toAffiliates of the Parent Borrower related to (1) any equity or debtoffering of such parent entity (whether or not successful), (2) any Investmentotherwise permitted under this covenant (whether or not successful) and(3) any transaction of the type described in Section 6.04;

#####  

##### (G)           cash payments in lieu of issuingfractional shares in connection with the exercise of warrants, options or othersecurities convertible into or exchangeable for Equity Interests of the ParentBorrower or any direct or indirect parent;

#####  

##### (H)          amounts to finance Investmentsotherwise permitted to be made pursuant to this Section 6.03; providedthat (1) such Restricted Payment shall be made substantially concurrentlywith the closing of such Investment and (2) such direct or indirect parentcompany shall, immediately following the closing thereof, cause (x) allproperty acquired (whether assets or Equity Interests) to be contributed to thecapital of the Parent Borrower or one of its Restricted Subsidiaries or(y) the merger of the Person formed or acquired into the Parent Borroweror one of 

 

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##### its RestrictedSubsidiaries (to the extent not prohibited by Section 6.04) inorder to consummate such Investment, in each case, subject to the limitationsset forth in clause(m) of, and the proviso set forth at the endof, the definition of Permitted Investment; (3) such direct or indirectparent company and its Affiliates (other than the Parent Borrower or aRestricted Subsidiary) receives no consideration or other payment in connectionwith such transaction, (4) any property received by the Parent Borrowershall not increase amounts available for Restricted Payments pursuant to Section 6.03(a) and(5) such Investment shall be deemed to be made by the Parent Borrower orsuch Restricted Subsidiary by another paragraph of this Section 6.03(other than pursuant to clause (x) hereof) or pursuant to the definitionof “Permitted Investments” (other than clause (i) thereof);

#####  

##### (I)            [reserved];

#####  

##### (J)            reasonable and customary feespayable to any directors of any direct or indirect parent of the ParentBorrower and reimbursement of reasonable out-of-pocket costs of the directorsof any direct or indirect parent of the Parent Borrower in the ordinary courseof business, to the extent reasonably attributable to the ownership oroperation of the Parent Borrower and its Restricted Subsidiaries; and

#####  

##### (K)          reasonable and customary indemnitiesto directors, officers and employee of any direct or indirect parent of theParent Borrower in the ordinary course of business, to the extent reasonablyattributable to the ownership or operation of the Parent Borrower and itsRestricted Subsidiaries;

#####  

#### (xvi)       thedistribution, by dividend or otherwise, of shares of Capital Stock of, orIndebtedness owed to the Parent Borrower or a Restricted Subsidiary by,Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primaryassets of which are cash and/or Cash Equivalents that were contributed to suchUnrestricted Subsidiaries as an Investment pursuant to clause (vii) ofthis Section 6.03(b));

####  

#### (xvii)      paymentsor distributions to dissenting stockholders pursuant to applicable law,pursuant to or in connection with a consolidation, merger or transfer of all orsubstantially all of the assets of the Parent Borrower and its RestrictedSubsidiaries, taken as a whole, that complies with Section 6.04; providedthat if as a result of such consolidation, merger or transfer of assets, aChange of Control has occurred, such Change of Control has been consented to orwaived by the Required Lenders;

####  

#### (xviii)     RestrictedPayments by (A) a non-Subsidiary Guarantor, (B) a Foreign Subsidiaryor (C) any other subsidiary to any Borrower or any Guarantor;

####  

#### (xix)        paymentsor distributions in connection with an AHYDO “catch-up” payment with respect tothe New Senior Notes and the New Mezzanine Notes;

####  

#### (xx)         purchasesof minority interests in non-Wholly-Owned Subsidiaries by the Parent Borrowerand the Guarantors;

####  

#### (xxi)        theForeign Subsidiary Reorganization and payments or distributions in connectiontherewith;

####  

#### (xxii)       thepayment of any dividend from the Parent Borrower to Intermediate Holdco for theredemption, repurchase, retirement or other acquisition of Equity Interest ofIntermediate Holdco held by employees of Holdings and subsidiaries; and

####  

#### (xxiii)      anypayment of any dividend from the Parent Borrower to Intermediate Holdco orHolding in connection with the payment of social security or other payrolltaxes based on the issuance of Equity Interests to employees or other serviceproviders;

 

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provided,**however,**that at the time of, and after giving effect to, anyRestricted Payment permitted under clauses (ix) (as determined atthe time of the declaration of such dividend), (xi) and (xvi), noDefault shall have occurred and be continuing or would occur as a consequencethereof.

 

### (c)           As of the ClosingDate, all of the subsidiaries of the Parent Borrower will be RestrictedSubsidiaries. The Parent Borrower will not permit any Unrestricted Subsidiaryto become a Restricted Subsidiary except pursuant to Section 5.11(b).  For purposes of designating any RestrictedSubsidiary as an Unrestricted Subsidiary, all outstanding Investments by theParent Borrower and its Restricted Subsidiaries (except to the extent repaid)in the subsidiary so designated will be deemed to be Restricted Payments in anamount determined as set forth in the last sentence of the definition of“Investments.” Such designation will be permitted only if a Restricted Paymentin such amount would be permitted at such time, whether pursuant to Section 6.03(a) or(b)(vii), (x) or (xi), or pursuant to the definition of“Permitted Investments,” and if such subsidiary otherwise meets the definitionof an Unrestricted Subsidiary. Unrestricted Subsidiaries will not be subject toany of the restrictive covenants set forth in the Loan Documents.

###  

SECTION 6.04.      ***Fundamental Changes***.

 

### (a)           The Parent Borrowermay not consolidate or merge with or into or wind up into (whether or not theParent Borrower is the surviving corporation), and may not sell, assign,transfer, lease, convey or otherwise dispose of all or substantially all of theproperties or assets of the Parent Borrower and its Restricted Subsidiaries,taken as a whole, in one or more related transactions, to any Person unless:

###  

#### (i)           theParent Borrower is the surviving corporation or the Person formed by orsurviving any such consolidation or merger (if other than the Parent Borrower)or the Person to whom such sale, assignment, transfer, lease, conveyance orother disposition will have been made is organized or existing under the lawsof the United States, any state thereof, the District of Columbia, or anyterritory thereof (such Person, the “Successor Company”);

####  

#### (ii)          theSuccessor Company, if other than the Parent Borrower, expressly assumes all theObligations of the Parent Borrower pursuant to documentation reasonablysatisfactory to the Administrative Agent;

####  

#### (iii)         immediatelyafter such transaction, no Event of Default exists;

####  

#### (iv)         immediatelyafter giving pro forma effect to such transaction and any related financingtransactions, as if such transactions had occurred at the beginning of the applicablefour-quarter period,

####  

##### (A)          the Successor Company would bepermitted to incur at least $1.00 of additional Indebtedness pursuant to theTotal Net Leverage Test described in Section 6.01(a); or

#####  

##### (B)           the Total Net Leverage Ratio for theParent Borrower and its Restricted Subsidiaries would be equal to or less thanthe each ratio immediately prior to such transaction; and

#####  

in each case made or effected substantiallysimultaneously with such transaction or related financing;

 

#### (v)          eachGuarantor, unless it is the other party to the transactions described above, inwhich case Section 6.04(c)(i)(B) shall apply, shall haveconfirmed that its Obligations under the Loan Documents to which it is a partypursuant to documentation reasonably satisfactory to the Administrative Agent;and

####  

#### (vi)         theParent Borrower shall have delivered to the Administrative Agent an Officer’sCertificate and an Opinion of Counsel, each stating that such consolidation,merger or transfer and such documentation relating to the Loan Documents, ifany, comply with this Agreement;

 

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provided that the Parent Borrowershall promptly notify the Administrative Agent of any such transaction andshall take all required actions either prior to or upon the later to occur of30 days following such transaction (or the earlier of the date of therequired delivery of the next Pricing Certificate and the date which is 45 daysafter the end of the most recently ended fiscal quarter (or such longer periodas to which the Administrative Agent may consent) in order to preserve andprotect the Liens on the Collateral securing the Secured Obligations.

 

The Successor Company will succeed to, and besubstituted for the Parent Borrower under the Loan Documents.  Notwithstanding the foregoing, clause(iv) shall not apply to the Transactions (including the Merger).

 

### (b)           Notwithstanding theforegoing paragraphs (a)(iii) and (a)(iv),

###  

#### (i)           theParent Borrower or a Restricted Subsidiary may consolidate with or merge intoor transfer all or part of its properties and assets to the Parent Borrower ora Restricted Guarantor;

####  

#### (ii)          theParent Borrower may merge with an Affiliate of the Parent Borrower solely forthe purpose of reorganizing the Parent Borrower in a State of the United Statesso long as the amount of Indebtedness of the Parent Borrower and its RestrictedSubsidiaries is not increased thereby;

####  

#### (iii)         anyForeign Subsidiary may consolidate with or merge into or transfer all or partof its properties and assets to any other Foreign Subsidiary; providedthat if the Foreign Subsidiary so consolidating, merging or transferring all orpart of its properties and assets is a Foreign Subsidiary Borrower, suchForeign Subsidiary Borrower shall, substantially simultaneously with suchmerger, transfer or disposition, repay in full all its Obligations andterminate its rights to borrow hereunder;

####  

#### (iv)         theForeign Subsidiary Reorganization may be effected;

####  

#### (v)          CDRVHoldings, Inc. may consolidate or merge with or into or wind up into CDRVInvestment Holdings Corporation; and

####  

#### (vi)         CDRVInvestment Holdings Corporation may consolidate or merge with or into or windup into the Parent Borrower.

####  

### (c)           No RestrictedGuarantor will, and the Parent Borrower will not permit any RestrictedGuarantor to, consolidate or merge with or into or wind up into (whether or notthe Parent Borrower or Restricted Guarantor is the surviving corporation), orsell, assign, transfer, lease, convey or otherwise dispose of all orsubstantially all of its properties or assets, in one or more relatedtransactions, to any Person unless:

###  

#### (i)           (A) such Restricted Guarantor is the surviving corporation or the Person formed byor surviving any such consolidation or merger (if other than such RestrictedGuarantor) or to which such sale, assignment, transfer, lease, conveyance orother disposition will have been made is organized or existing under the lawsof the jurisdiction of organization of such Restricted Guarantor, as the casemay be, or the laws of the United States, any state thereof, the District ofColumbia, or any territory thereof (such Restricted Guarantor or Person, the “SuccessorPerson”);

####  

##### (B)            the Successor Person, if other thansuch Restricted Guarantor, expressly assumes all the Obligations of suchRestricted Guarantor pursuant to documentation reasonably satisfactory to theAdministrative Agent;

#####  

##### (C)            immediately after such transaction,no Event of  Default exists; and

#####  

##### (D)           the Borrowers shall have delivered tothe Administrative Agent an Officer’s Certificate and an Opinion of Counsel,each stating that such consolidation, merger or transfer and such documentationrelating to the Loan Documents, if any, comply with this Agreement;

#####  

#### (ii)          thetransaction does not violate Section 6.05;

 

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provided that the Parent Borrowershall promptly notify the Administrative Agent of any such transaction andshall take all required actions either prior to or upon the later to occur of30 days following such transaction (or the earlier of the date of therequired delivery of the next Pricing Certificate and the date which is 45 daysafter the end of the most recently ended fiscal quarter (or such longer periodas to which the Administrative Agent may consent) in order to preserve andprotect the Liens on the Collateral securing the Secured Obligations.

 

In the case of clause (i)(A) above, theSuccessor Person will succeed to, and be substituted for, such RestrictedGuarantor under the Loan Documents. Notwithstanding the foregoing, any Restricted Guarantor (x) maymerge into or transfer all or part of its properties and assets to anotherRestricted Guarantor or either Borrower or (y) dissolve, liquidate or windup its affairs if such dissolution, liquidation or winding up could notreasonably be expected to have a Material Adverse Effect.

 

SECTION 6.05.      ***Dispositions***.  Cause, make or suffer to exist a Disposition,except:

 

(a)           any Disposition of Cash Equivalentsor Investment Grade Securities or obsolete or worn out equipment in theordinary course of business or any disposition of inventory or goods (or otherassets) held for sale in the ordinary course of business;

 

(b)           the Disposition of all orsubstantially all of the assets of the Parent Borrower and its RestrictedSubsidiaries in a manner permitted pursuant to the provisions described aboveunder Section 6.04 or any disposition that constitutes a Change ofControl;

 

(c)           the making of any Restricted Paymentor Permitted Investment that is permitted to be made, and is made, under Section 6.03;

 

(d)           any Disposition of property or assetsor issuance of Equity Interests (A) by a Restricted Subsidiary of theParent Borrower to the Parent Borrower or (B) by the Parent Borrower or aRestricted Subsidiary of the Parent Borrower to another Restricted Subsidiaryof the Parent Borrower; provided that in the case of any event describedin clause (B) where the transferee or purchaser is not a Guarantor, thenat the option of the Parent Borrower, either (1) such disposition shallconstitute a Disposition for purposes of the definition of Prepayment AssetSale or (2) the Net Cash Proceeds thereof, when aggregated with the amountof Permitted Investments made pursuant to clauses (a) and (c) ofthe definition thereof, shall not exceed the dollar amount set forth in thefinal proviso of such definition; providedfurther that if theRestricted Subsidiary which makes a Disposition of its assets is a ForeignSubsidiary Borrower, such Foreign Subsidiary Borrower shall, substantiallysimultaneously with such disposition, repay in full all outstanding Loans madeto it and terminate its right to borrow hereunder;

 

(e)           any Permitted Asset Swap;

 

(f)            the sale, lease, assignment orsub-lease of any real or personal property in the ordinary course of business;

 

(g)           any issuance or sale of EquityInterests in, or Indebtedness or other securities of, an UnrestrictedSubsidiary;

 

(h)           sales of accounts receivable, orparticipations therein, in connection with any Receivables Facility;

 

(i)            any financing transaction withrespect to property built or acquired by the Parent Borrower or any RestrictedSubsidiary after the Closing Date, including Sale and Lease-Back Transactionsand asset securitizations permitted under this Agreement;

 

(j)            sales of accounts receivable inconnection with the collection or compromise thereof;

 

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(k)           transfers of property subject tocasualty or condemnation proceedings (including in lieu thereof) upon thereceipt of the net cash proceeds therefor;****providedsuch transfer shall constitute a Property Loss Event;

 

(l)            the abandonment of intellectualproperty rights in the ordinary course of business, which in the reasonablegood faith determination of the Parent Borrower or a Restricted Subsidiary arenot material to the conduct of the business of the Parent Borrower and itsRestricted Subsidiaries taken as a whole;

 

(m)          voluntary terminations of HedgingObligations;

 

(n)           Dispositions (including Sale andLease-Back Transactions) by a Foreign Subsidiary designed to generate foreigndistributable reserves;

 

(o)           any Disposition to the extent notinvolving property (when taken together with any related Disposition or seriesof Dispositions) with a fair market value in excess of $25,000,000; and

 

(p)           Dispositions not otherwise permittedunder this Section 6.05, provided that:

 

(i)      at least 75% of the consideration thereforreceived by the Parent Borrower or such Restricted Subsidiary, as the case maybe, is in the form of cash or Cash Equivalents; provided that the amountof (A) any liabilities (as shown on the Parent Borrower’s or such RestrictedSubsidiary’s most recent balance sheet or in the footnotes thereto) of theParent Borrower or such Restricted Subsidiary, other than liabilities that areby their terms subordinated to the Obligations or that are owed to the ParentBorrower or a Restricted Subsidiary, that are assumed by the transferee of anysuch assets and for which the Parent Borrower and all of its RestrictedSubsidiaries have been validly released by all creditors in writing,(B) any securities received by the Parent Borrower or such RestrictedSubsidiary from such transferee that are converted by the Parent Borrower orsuch Restricted Subsidiary into cash (to the extent of the cash received)within 180 days following the closing of such Disposition, and (C) anyDesignated Non-Cash Consideration received by the Parent Borrower or suchRestricted Subsidiary in such Disposition having an aggregate fair marketvalue, taken together with all other Designated Non-Cash Consideration receivedpursuant to this clause (C) that is at that time outstanding, notto exceed the greater of $75,000,000 and 2.0% of Total Assets at the time ofthe receipt of such Designated Non-Cash Consideration, with the fair marketvalue of each item of Designated Non-Cash Consideration being measured at the timereceived and without giving effect to subsequent changes in value, shall bedeemed to be cash for purposes of this provision and for no other purpose; or

 

(ii)     any Disposition of assets or issuance orsale of Equity Interests of a Restricted Subsidiary in any transaction orseries of related transactions, when taken together with all other dispositionsmade in reliance on this clause (ii), does not have a fair market valuein excess of 5.0% of Total Assets of the Parent Borrower on the Closing Date;

 

(q)           foreclosures; and

 

(r)            Sale and Lease-Back Transactionsinvolving (i) real property owned on the Closing Date (other than anyMortgaged Property), (ii) property acquired not more than 180 days priorto such Sale and Lease Back Transaction for cash in an amount at least equal tothe cost of such property and (iii) other property for cash considerationif the sale is treated as a Prepayment Asset Sale;

 

provided that the considerationreceived by the Parent Borrower or such Restricted Subsidiary, as the case maybe, with respect to any Disposition of any property with a fair market value inexcess of $25,000,000 must be at least equal to the fair market value (asdetermined in good faith by the Parent Borrower) of the assets sold orotherwise disposed of.  To the extent anyCollateral is disposed of as expressly permitted by this Section 6.05to any Person 

 

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other than a Loan Party, such Collateral shall be soldfree and clear of the Liens created by the Loan Documents, and theAdministrative Agent or the Collateral Agent, as applicable, shall beauthorized to take any actions deemed appropriate in order to effect theforegoing.

 

SECTION 6.06.      ***Transactions with Affiliates***.  Except for transactions by or among LoanParties (or by and among the Parent Borrower and its Restricted Subsidiaries),sell or transfer any property or assets to, or purchase or acquire any propertyor assets from, or otherwise engage in any other transactions with, any of itsAffiliates, in each case, involving aggregate payments or consideration inexcess of $10,000,000 unless:

 

(a)         such transaction is on terms that arenot materially less favorable to the Parent Borrower or the relevant RestrictedSubsidiary than those that would have been obtained in a comparable transactionby the Parent Borrower or such Restricted Subsidiary with an unrelated Personon an arm’s-length basis; and

 

(b)        the Parent Borrower delivers to theAdministrative Agent with respect to any such transaction or series of relatedtransactions involving aggregate payments or consideration in excess of$25,000,000, a resolution adopted by the majority of the board of directors ofthe Parent Borrower approving such transaction and set forth in an Officer’sCertificate certifying that such transaction complies with clause (a) above.

 

(c)         The foregoing provisions will not applyto the following:

 

#### (i)           theParent Borrower or any Restricted Subsidiary may engage in any of the foregoingtransactions at prices and on terms and conditions not less favorable to theParent Borrower or such Restricted Subsidiary than could be obtained on anarm’s-length basis from unrelated third parties;

####  

#### (ii)          theParent Borrower and its Restricted Subsidiaries may pay fees, expenses and makeindemnification payments directly or indirectly to the Sponsor pursuant to andin accordance with the Sponsor Management Agreement (as in effect on theClosing Date);

####  

#### (iii)         theTransactions and the payment of the Transaction Expenses;

####  

#### (iv)         issuancesby the Parent Borrower and its Restricted Subsidiaries of Equity Interests notprohibited under this Agreement;

####  

#### (v)          reasonableand customary fees payable to any directors of the Parent Borrower and its RestrictedSubsidiaries (or any direct or indirect parent of the Parent Borrower) andreimbursement of reasonable out-of-pocket costs of the directors of the ParentBorrower and its subsidiaries (or any direct or indirect parent of the ParentBorrower) in the ordinary course of business, in the case of any direct or indirectparent to the extent reasonably attributable to the ownership or operations ofthe Parent Borrower and its Restricted Subsidiaries);

####  

#### (vi)         expensereimbursement and employment, severance and compensation arrangements enteredinto by the Parent Borrower and its Restricted Subsidiaries with theirofficers, employees and consultants in the ordinary course of business,including, without limitation, the payment of stay bonuses and incentivecompensation and/or such officer’s, employee’s or consultant’s equityinvestment in certain Restricted Subsidiaries;

####  

#### (vii)        paymentsby the Parent Borrower and its Restricted Subsidiaries to each other pursuantto tax sharing agreements or arrangements among Parent and its subsidiaries oncustomary terms (including, without limitation, transfer pricing initiatives);

####  

#### (viii)       thepayment of reasonable and customary indemnities to directors, officers andemployees of the Parent Borrower and its Restricted Subsidiaries (or any director indirect parent of the Parent Borrower) 

 

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#### in the ordinary course of business, in the case of any direct orindirect parent to the extent attributable to the operations of the ParentBorrower and its Restricted Subsidiaries;

####  

#### (ix)         transactionspursuant to permitted agreements in existence on the Closing Date (other thanthe Sponsor Management Agreement) and any amendment thereto to the extent suchan amendment is not adverse to the interests of the Lenders in any materialrespect;

####  

#### (x)          RestrictedPayments permitted under Section 6.03;

####  

#### (xi)         paymentsby the Parent Borrower and its Restricted Subsidiaries to the Sponsor made forany financial advisory, financing, underwriting or placement services or inrespect of other investment banking activities, including in connection withacquisitions or divestitures, which payments are approved by a majority of theboard of directors of the Parent Borrower, in good faith;

####  

#### (xii)        loansand other transactions among the Parent Borrower and its subsidiaries (and anydirect and indirect parent company of the Parent Borrower) to the extentpermitted under this Article VI; provided that anyIndebtedness of any Loan Party owed to a Restricted Subsidiary that is not aLoan Party shall be subject to subordination provisions no less favorable tothe Lenders than the subordination provisions reasonably acceptable to theAdministrative Agent;

####  

#### (xiii)       theexistence of, or the performance by the Parent Borrower or any of itsRestricted Subsidiaries of its obligations under the terms of, any stockholdersagreement, principal investors agreement (including any registration rightsagreement or purchase agreement related thereto) to which it is a party as ofthe Closing Date and any similar agreements which it may enter into thereafter;provided, however, that the existenceof, or the performance by the Parent Borrower or any of its RestrictedSubsidiaries of obligations under any future amendment to any such existingagreement or under any similar agreement entered into after the Closing Dateshall only be permitted by this clause (m) to the extent that the termsof any such amendment or new agreement are not otherwise disadvantageous to theLenders when taken as a whole;

####  

#### (xiv)       transactionswith customers, clients, suppliers, or purchasers or sellers of goods orservices, in each case in the ordinary course of business which are fair to theParent Borrower and its Restricted Subsidiaries, in the reasonabledetermination of the board of directors of the Parent Borrower or the senior managementthereof, or are on terms at least as favorable as might reasonably have beenobtained at such time from an unaffiliated party;

####  

#### (xv)        salesof accounts receivable, or participations therein, in connection with anyReceivables Facility;

####  

#### (xvi)       paymentsor loans (or cancellation of loans) to employees or consultants of the ParentBorrower, any of its direct or indirect parent companies or any of itsRestricted Subsidiaries which are approved by a majority of the board ofdirectors of the Parent Borrower in good faith; and

####  

#### (xvii)      transactionsamong Foreign Subsidiaries for tax planning and tax efficiency purposes.

####  

SECTION 6.07.      ***Restrictive Agreements***.  Enter into, incur or permit to exist anyagreement or other arrangement that prohibits, restricts or imposes anycondition upon:

 

(a)           the ability of the Parent Borrower orany Restricted Subsidiary to create, incur or permit to exist any Lien upon anyof its property or assets to secure the Obligations;

 

(b)           the ability of any RestrictedSubsidiary to pay dividends or other distributions with respect to any of itsEquity Interests or to make or repay loans or advances to the Parent Borroweror any other Restricted Subsidiary or to guarantee Indebtedness of the ParentBorrower or any other Restricted Subsidiary; or

 

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(c)           the ability of any RestrictedSubsidiary to sell, lease or transfer any of its properties or assets to theParent Borrower or any of its Restricted Subsidiaries;

 

provided that the foregoing shallnot apply to:

 

#### (i)           restrictionsand conditions imposed by law, by any Loan Document or which (x) exist on thedate hereof and (y) to the extent contractual obligations permitted by clause(x) are set forth in an agreement evidencing Indebtedness, are set forth inany agreement evidencing any permitted renewal, extension or refinancing ofsuch Indebtedness so long as such renewal, extension or refinancing does notexpand the scope of such contractual obligation;

####  

#### (ii)          customaryrestrictions and conditions contained in agreements relating to any sale of assetspending such sale, provided such restrictions and conditions apply onlyto the Person or property that is to be sold;

####  

#### (iii)         restrictionsand conditions (x) on any Foreign Subsidiary by the terms of anyIndebtedness of such Foreign Subsidiary permitted to be incurred hereunder or(y) by the terms of the documentation governing any Receivables Facility thatin the good faith determination of the Parent Borrower are necessary oradvisable to effect such Receivables Facility;

####  

#### (iv)         restrictionsor conditions imposed by any agreement relating to Secured Indebtedness permittedby this Agreement if such restrictions or conditions apply only to the Personobligated under such Indebtedness and its subsidiaries or the property orassets intended to secure such Indebtedness;

####  

#### (v)          contractualobligations binding on a Restricted Subsidiary at the time such Restricted Subsidiaryfirst becomes a Restricted Subsidiary, so long as such contractual obligationswere not entered into solely in contemplation of such Person becoming aRestricted Subsidiary;

####  

#### (vi)         restrictionsand conditions imposed by the terms of the documentation governing any Indebtedness,Disqualified Stock or Preferred Stock of a Restricted Subsidiary of the ParentBorrower that is not a Loan Party, which Indebtedness, Disqualified Stock orPreferred Stock is permitted by Section 6.01;

####  

#### (vii)        customaryprovisions in joint venture agreements and other similar agreements applicableto joint ventures permitted under Section 6.03 and applicablesolely to such joint venture entered into in the ordinary course of business;

####  

#### (viii)       negativepledges and restrictions on Liens in favor of any holder of Indebtedness permittedunder Section 6.01 but only if such negative pledge or restrictionexpressly permits Liens for the benefit of the Administrative Agent and/or theCollateral Agent and the Lenders with respect to the credit facilities establishedhereunder and the Obligations under the Loan Documents on a senior basis andwithout a requirement that such holders of such Indebtedness be secured by suchLiens equally and ratably or on a junior basis;

####  

#### (ix)         restrictionson cash, other deposits or net worth imposed by customers under contracts enteredinto in the ordinary course of business;

####  

#### (x)          SecuredIndebtedness otherwise permitted to be incurred under Sections 6.01and 6.02 that limit the right of the obligor to dispose of the assetssecuring such Indebtedness;

####  

#### (xi)         anyencumbrances or restrictions of the type referred to in clauses (a) and(b) above imposed by any amendments, modifications, restatements,renewals, increases, supplements, refundings, replacements or refinancings ofthe contracts, instruments or obligations referred to in clauses (i) through(x) above; provided that such amendments, modifications, restatements,renewals, increases, supplements, refundings, replacements or refinancings are,in the good faith judgment of the Parent Borrower, no more restrictive with 

 

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#### respect to such encumbrance and other restrictions taken as a wholethan those prior to such amendment, modification, restatement, renewal,increase, supplement, refunding, replacement or refinancing; and

####  

### (d)           clause (a) ofthe foregoing shall not apply to customary provisions in leases, subleases,licenses, sublicenses and other contracts restricting the assignment thereof,in each case entered into in the ordinary course of business.

###  

SECTION 6.08.      ***Business of the Parent Borrower and Its RestrictedSubsidiaries***.  Engage inany line of business material to the Parent Borrower and its subsidiaries takenas a whole other than (a) those lines of business conducted by the ParentBorrower or any Restricted Subsidiary on the Closing Date or (b) anySimilar Business.

 

SECTION 6.09.      ***Modification of Junior Financing Documentation***.  Directly or indirectly, amend, modify orchange (a) the subordination provisions of any Junior FinancingDocumentation (and the component definitions used therein), including the NewMezzanine Notes Documentation or (b) any other term or condition of theNew Senior Notes Documentation, the New Mezzanine Notes Documentation or anyJunior Financing Documentation, in the case of this clause (b), in anymanner materially adverse to the interests of the Lenders and, in each case,without the consent of the Administrative Agent (which consent shall not beunreasonably withheld).

 

SECTION 6.10.      ***Changes in Fiscal Year***.  Make any change in its fiscal year; provided,however, that the Parent Borrower may, upon written notice to theAdministrative Agent, change its fiscal year to any other fiscal year reasonablyacceptable to the Administrative Agent, in which case, the Parent Borrower andthe Administrative Agent will, and are hereby authorized by Lenders to, makeany adjustments to this Agreement that are necessary to reflect such change infiscal year.

 

# ARTICLE VII

#  

# ***Events of Default***

#  

SECTION 7.01.      ***Events of Default***.  In case of the happening of any of thefollowing events (“Events of Default”):

 

(a)           any representation or warranty madeor deemed made in any Loan Document or any representation, warranty, statementor information contained in any certificate required to be furnished pursuantto any Loan Document, shall prove to have been false or misleading in anymaterial respect when so made, deemed made or furnished;

 

(b)           default shall be made in the paymentof any principal of any Loan when and as the same shall become due and payable,whether at the due date thereof or at a date fixed for mandatory prepaymentthereof or by acceleration thereof or otherwise;

 

(c)           default shall be made in the paymentof any reimbursement with respect to any L/C Disbursement, interest on any Loanor L/C Disbursement or any Fee or other amount (other than an amount referredto in clause (b) above) due under any Loan Document, when andas the same shall become due and payable, and such default shall continueunremedied for a period of 5 Business Days;

 

(d)           default shall be made in the due observanceor performance by the Borrowers or any Restricted Subsidiary of any covenant,condition or agreement contained in Section 5.01(a) (withrespect to any Borrower), 5.05(a) or in Article VI;

 

(e)           default shall be made in the dueobservance or performance by any Loan Party or its Restricted Subsidiaries ofany covenant, condition or agreement contained in any Loan Document (other thanthose specified in clause (b), (c) or (d) above)and such default shall continue unremedied for a period of 30 days afterwritten notice thereof from the Administrative Agent to the Parent Borrower;

 

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(f)            (i) the Borrowers or anyRestricted Subsidiary shall fail to pay any principal or interest, regardlessof amount, due in respect of any Material Indebtedness, when and as the sameshall become due and payable (after giving effect to an applicable graceperiod), which failure enables or permits (with or without the giving ofnotice, the lapse of time or both) the holder or holders of such MaterialIndebtedness or any trustee or agent on its or their behalf to cause anyMaterial Indebtedness to become due, or to require the prepayment, repurchase,redemption or defeasance thereof, prior to its scheduled maturity or that is afailure to pay such Material Indebtedness at its maturity or (ii) anyother event or condition occurs that results in any Material Indebtednessbecoming due prior to its scheduled maturity or that enables or permits (withor without the giving of notice, the lapse of time or both) the holder orholders of any Material Indebtedness or any trustee or agent on its or theirbehalf to cause any Material Indebtedness to become due, or to require theprepayment, repurchase, redemption or defeasance thereof, prior to itsscheduled maturity; provided that clause (ii) shall notapply to secured Material Indebtedness that becomes due as a result of thevoluntary sale or transfer of the property or assets securing such MaterialIndebtedness if such sale or transfer is otherwise permitted hereunder;

 

(g)           an involuntary proceeding shall becommenced or an involuntary petition shall be filed in a court of competentjurisdiction seeking (i) relief in respect of either Borrower or anyRestricted Subsidiary (other than an Immaterial Subsidiary), or of asubstantial part of the property or assets of either Borrower or a RestrictedSubsidiary (other than an Immaterial Subsidiary), under Title 11 of theUnited States Code, as now constituted or hereafter amended, or any other Federal,state or foreign bankruptcy, insolvency, receivership or similar law,(ii) the appointment of a receiver, trustee, custodian, sequestrator, conservatoror similar official for either Borrower or any Restricted Subsidiary (otherthan an Immaterial Subsidiary) or for a substantial part of the property orassets of either Borrower or a Restricted Subsidiary (other than an ImmaterialSubsidiary) or (iii) the winding-up or liquidation of either Borrower orany Restricted Subsidiary (other than an Immaterial Subsidiary); and suchproceeding or petition shall continue undismissed for 60 days or an orderor decree approving or ordering any of the foregoing shall be entered;

 

(h)           either Borrower or any RestrictedSubsidiary (other than an Immaterial Subsidiary) shall (i) voluntarilycommence any proceeding or file any petition seeking relief under Title 11of the United States Code, as now constituted or hereafter amended, or anyother Federal, state or foreign bankruptcy, insolvency, receivership or similarlaw, (ii) consent to the institution of any proceeding or the filing ofany petition described in clause (g) above, (iii) apply for orconsent to the appointment of a receiver, trustee, custodian, sequestrator,conservator or similar official for either Borrower or any RestrictedSubsidiary (other than an Immaterial Subsidiary) or for a substantial part ofthe property or assets of either Borrower or any Restricted Subsidiary (otherthan an Immaterial Subsidiary), (iv) file an answer admitting the materialallegations of a petition filed against it in any such proceeding,(v) make a general assignment for the benefit of creditors or(vi) become unable, admit in writing its general inability or failgenerally to pay its debts as they become due;

 

(i)            one or more judgments for thepayment of money in an aggregate amount exceeding $35,000,000 (to the extentnot covered by insurance as to which an insurance company has not denied coverageor by an indemnification agreement as to which the indemnifying party has notdenied liability) shall be rendered against either Borrower and/or anyRestricted Subsidiary (other than an Immaterial Subsidiary) and the same shallremain undischarged for a period of 60 consecutive days during which executionshall not be effectively stayed;

 

(j)            (i) an ERISA Event occurs withrespect to a Pension Plan or Multiemployer Plan which has resulted or couldreasonably be expected to result in a Material Adverse Effect or (ii) aPension Event occurs with respect to a Foreign Plan which has resulted or couldreasonably be expected to result in a Material Adverse Effect;

 

(k)           any material provision of any LoanDocument, at any time after its execution and delivery, shall for any reasoncease to be in full force and effect (other than in accordance with its termsor in accordance with the terms of the other Loan Documents), or any Loan Partycontests in writing the validity or enforceability of any material provision ofany Loan Document; or any Loan Party denies in 

 

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writingthat it has any or further liability thereunder (other than as a result of thedischarge of such Loan Party in accordance with the terms of the Loan Documents);

 

(l)            other than with respect to deminimis items of Collateral not exceeding $5,000,000 in the aggregate,any Lien purported to be created by any Security Document shall cease to be, orshall be asserted in writing by any Loan Party not to be, a valid, perfectedfirst priority Lien (subject only to Permitted Liens, to the extent any suchPermitted Liens would have priority over the Liens in favor of theAdministrative Agent pursuant to any applicable law) having the priority contemplatedthereby (except as otherwise expressly provided in this Agreement or suchSecurity Document) on the securities, assets or properties purported to becovered thereby, except to the extent that any lack of validity, perfection orpriority results from any act or omission of any Collateral Agent, the AdministrativeAgent, or any Lender (so long as such act or omission does not result from thebreach or non-compliance by a Loan Party with the Loan Documents); or

 

(m)          there shall have occurred a Change ofControl;

 

then, and in every such event (other than an eventwith respect to the Borrowers described in paragraph (g) or (h) above),and at any time thereafter during the continuance of such event, theAdministrative Agent may, and at the request of the Required Lenders shall, bynotice to the Borrowers, take either or both of the following actions, at thesame or different times:  (i) terminate forthwith the Commitmentsand (ii) declare the Loans then outstanding to be forthwith due andpayable in whole or in part, whereupon the principal of the Loans so declaredto be due and payable, together with accrued interest thereon and any unpaidaccrued Fees and all other liabilities of the Borrowers accrued hereunder andunder any other Loan Document, shall become forthwith due and payable, withoutpresentment, demand, protest or any other notice of any kind, all of which arehereby expressly waived by the Borrowers, anything contained herein or in anyother Loan Document to the contrary notwithstanding; and in any event withrespect to the Borrowers described in paragraph (g) or (h) above,the Commitments shall automatically terminate and the principal of the Loansthen outstanding, together with accrued interest thereon and any unpaid accruedFees and all other liabilities of the Borrowers accrued hereunder and under anyother Loan Document, shall automatically become due and payable, withoutpresentment, demand, protest or any other notice of any kind, all of which arehereby expressly waived by the Borrowers, anything contained herein or in anyother Loan Document to the contrary notwithstanding.

 

# ARTICLE VIII

#  

# ***The Administrative Agent and the Collateral Agent***

#  

Each of the Lenders and each Issuing Bank herebyirrevocably appoints the Administrative Agent and the Collateral Agent (theAdministrative Agent and the Collateral Agent are referred to collectively asthe “Agents”) its agent and authorizes the Agents to take such actionson its behalf and to exercise such powers as are delegated to such Agent by theterms of the Loan Documents, together with such actions and powers as arereasonably incidental thereto.  Withoutlimiting the generality of the foregoing, the Agents are hereby expresslyauthorized to execute any and all documents (including releases) with respectto the Collateral and the rights of the Secured Parties with respect thereto,as contemplated by and in accordance with the provisions of this Agreement andthe Security Documents.

 

The bank serving as the Administrative Agent and/orthe Collateral Agent hereunder shall have the same rights and powers in itscapacity as a Lender as any other Lender and may exercise the same as though itwere not an Agent, and such bank and its Affiliates may accept deposits from,lend money to and generally engage in any kind of business with the Borrowersor any subsidiary or other Affiliate thereof as if it were not an Agenthereunder.

 

Neither Agent shall have any duties or obligationsexcept those expressly set forth in the Loan Documents.  Without limiting the generality of theforegoing, (a) neither Agent shall be subject to any fiduciary or otherimplied duties, regardless of whether a Default or Event of Default hasoccurred and is continuing, (b) neither Agent shall have any duty to takeany discretionary action or exercise any discretionary powers, exceptdiscretionary rights and powers expressly contemplated hereby that such Agentis instructed in writing to exercise by the Required Lenders 

 

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(or such other number or percentage of the Lenders asshall be necessary under the circumstances as provided in Section 9.08),(c) each Agent shall be fully justified in failing or refusing to take anyaction under any Loan Document unless it shall first receive such advice orconcurrence of the relevant Required Lenders as it deems appropriate and, if itso requests, it shall first be indemnified to its satisfaction by the relevantLenders against any and all liability and expense which may be incurred by itby reason of taking or continuing to take any such action and (d) exceptas expressly set forth in the Loan Documents, neither Agent shall have any dutyto disclose, nor shall it be liable for the failure to disclose, anyinformation relating to Holdings, the Borrowers or any of the subsidiariesthereof that is communicated to or obtained by the bank serving asAdministrative Agent and/or Collateral Agent or any of its Affiliates in anycapacity. Neither Agent shall be liable for any action taken or not taken by itwith the consent or at the request of the Required Lenders (or such othernumber or percentage of the Lenders as shall be necessary under thecircumstances as provided in Section 9.08) or in the absence of itsown gross negligence, bad faith or willful misconduct or material breach of theLoan Documents (as determined by a court of competent jurisdiction in a finaland non-appealable judgment). Neither Agent shall be deemed to have knowledgeof any Default or Event of Default unless and until written notice thereof isgiven to such Agent by the Parent Borrower or a Lender, and neither Agent shallbe responsible for or have any duty to ascertain or inquire into (i) anystatement, warranty or representation made in or in connection with any LoanDocument, (ii) the contents of any certificate, report or other document deliveredthereunder or in connection therewith, (iii) the performance or observanceof any of the covenants, agreements or other terms or conditions set forth inany Loan Document, (iv) the validity, enforceability, effectiveness orgenuineness of any Loan Document or any other agreement, instrument ordocument, (v) the perfection or priority of any Lien or security interestcreated or purported to be created under the Collateral Documents or(vi) the satisfaction of any condition set forth in Article IVor elsewhere in any Loan Document, other than to confirm receipt of itemsexpressly required to be delivered to such Agent.

 

Each Agent shall be entitled to rely upon, and shallnot incur any liability for relying upon, any notice, request, certificate,consent, statement, instrument, document or other writing believed by it to begenuine and to have been signed or sent by the proper Person. Each Agent mayalso rely upon any statement made to it orally or by telephone and believed byit to have been made by the proper Person, and shall not incur any liabilityfor relying thereon.  Each Agent mayconsult with legal counsel (who may be counsel for the Borrowers or anyAffiliate thereof), independent accountants and other experts selected by it,and shall not be liable for any action taken or not taken by it in good faithand in accordance with the advice of any such counsel, accountants or experts.

 

For purposes of determining compliance with theconditions specified in Section 4.02, each Lender that has signedthis Agreement shall be deemed to have consented to, approved or accepted or tobe satisfied with, each document or other matter required thereunder to beconsented to or approved by or acceptable or satisfactory to a Lender unlessthe Administrative Agent shall have received notice from such Lender prior tothe proposed Closing Date specifying its objection thereto.

 

Each Agent may perform any and all its duties andexercise its rights and powers by or through any one or more sub-agentsappointed by it.  Each Agent and any suchsub-agent may perform any and all its duties and exercise its rights and powersby or through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply toany such sub-agent and to the Related Parties of each Agent and any suchsub-agent, and shall apply to their respective activities in connection withthe syndication of the credit facilities provided for herein as well asactivities as Agent.

 

Subject to the appointment and acceptance of asuccessor Agent as provided below, any Agent may resign at any time bynotifying in writing the relevant Lenders, each Issuing Bank (if applicable)and the Parent Borrower.  Upon receipt ofany such notice of resignation of the Administrative Agent or the CollateralAgent, the Required Lenders shall have the right, with the consent of theParent Borrower (such consent not to be unreasonably withheld, and providedthat no such consent of the Parent Borrower shall be required if an Event ofDefault has occurred and is continuing under paragraphs (g)(i) or (h) ofArticle VII), to appoint a successor (other than a DisqualifiedInstitution) which shall be a commercial banking institution organized underthe laws of the United States or any State or a United States branch or agencyof a commercial banking institution, in each case having a combined capital andsurplus of at least $500,000,000.

 

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If no successor agent is appointed prior to theeffective date of resignation of the relevant Agent specified by such Agent inits notice, the resigning Agent may appoint, after consulting with the relevantLenders and the Parent Borrower, a successor agent from among the relevantLenders.  If no successor agent hasaccepted appointment as the successor agent by the date which is 60 daysfollowing the retiring Agent’s notice of resignation, the retiring Agent’sresignation shall nevertheless thereupon become effective and the relevantLenders shall perform all of the duties of such Agent hereunder until such time,if any, as the Required Lenders, appoint a successor agent as provided forabove (except in the case of the Collateral Agent holding collateral securityon behalf of any Secured Parties, the resigning Collateral Agent shall continueto hold such collateral security as nominee until such time as a successorCollateral Agent is appointed).  Upon theacceptance of any appointment as an Agent hereunder by a successor and upon theexecution and filing or recording of such financing statements, or amendmentsthereto, and such amendments or supplements to the Security Documents, and suchother instruments or notices, as may be necessary or desirable, or as theRequired Lenders may request, in order to (a) continue the perfection ofthe Liens granted or purported to be granted by the Security Documents or(b) otherwise ensure that the obligations under Section 5.09are satisfied, the successor Agent shall thereupon succeed to and become vestedwith all the rights, powers, discretion, privileges, and duties of the retiringAgent, and the retiring Agent shall be discharged from its duties and obligationsunder the Loan Documents.  The feespayable by the Parent Borrower to a successor Agent shall be the same as thosepayable to its predecessor unless otherwise agreed between the Parent Borrowerand such successor.  After an Agent’sresignation hereunder, the provisions of this Article and Section 9.05shall continue in effect for the benefit of such retiring Agent, its sub-agentsand their respective Related Parties in respect of any actions taken or omittedto be taken by any of them while acting as Agent.

 

None of Lenders or other Persons identified on thecover page or signature pages of this Agreement as a “syndicationagent,” “documentation agent,” “bookrunner” or “arranger” shall have any right,power, obligation, liability, responsibility or duty under this Agreement otherthan those applicable to all Lenders as such. Without limiting the foregoing, none of the Lenders or other Persons soidentified shall have or be deemed to have any fiduciary relationship with anyLender.

 

Each Lender acknowledges that it has, independentlyand without reliance upon the Agents, the Arrangers or any other Lender andbased on such documents and information as it has deemed appropriate, made itsown credit analysis and decision to enter into this Agreement. Each Lender alsoacknowledges that it will, independently and without reliance upon the Agents,the Arrangers or any other Lender and based on such documents and information asit shall from time to time deem appropriate, continue to make its own decisionsin taking or not taking action under or based upon this Agreement or any otherLoan Document, any related agreement or any document furnished hereunder orthereunder.

 

To the extent required by any applicable law, theAdministrative Agent may withhold from any interest payment to any Lender anamount equivalent to any applicable withholding tax.  If the Internal Revenue Service or any otherGovernmental Authority asserts a claim that the Administrative Agent did notproperly withhold tax from amounts paid to or for the account of any Lenderbecause the appropriate form was not delivered or was not properly executed orbecause such Lender failed to notify the Administrative Agent of a change incircumstance which rendered the exemption from, or reduction of, withholdingtax ineffective or for any other reason, such Lender shall indemnify theAdministrative Agent fully for all amounts paid, directly or indirectly, by theAdministrative Agent as tax or otherwise, including any penalties or interestand together with all expenses (including legal expenses, allocated internalcosts and out-of-pocket expenses) incurred.

 

In case of the pendency of any receivership,insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,composition or other judicial proceeding relative to any Loan Party, theAdministrative Agent and the Collateral Agent (irrespective of whether theObligations shall then be due and payable as herein expressed or by declarationor otherwise and irrespective of whether such Agent shall have made any demandon the Borrowers) shall be entitled and empowered, by intervention in suchproceeding or otherwise;

 

(a)           to file and prove a claim for thewhole amount of the Obligations and to file such other documents as may benecessary or advisable in order to have the claims of the Lenders and eachAgent or (including any claim for the reasonable compensation, expenses,disbursements and advances of the 

 

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Lendersand each Agent and their respective agents and counsel and all other amountsdue such Lenders and the Administrative Agent under Section 2.05and 9.05) allowed in such judicial proceeding; and

 

(b)           to collect and receive any monies orother property payable or deliverable on any such claims and to distribute thesame;

 

and any custodian, receiver, assignee, trustee,liquidator, sequestrator or other similar official in any such judicialproceeding is hereby authorized by each Lender to make such payments to suchAgent and, in the event such Agent shall consent to the making of such paymentsdirectly to the Lenders, to pay to the Administrative Agent any amount due forthe reasonable compensation, expenses, disbursements and advances of the Agentsand their respective agents and counsel, and any other amounts due theAdministrative Agent under Sections 2.05 and 9.05.

 

Nothing contained herein shall be deemed to authorizeany Agent to authorize or consent to or accept or adopt on behalf of anyrelevant Lender any plan or reorganization, arrangement, adjustment orcomposition affecting the Obligations or the rights of any relevant Lender toauthorize such Agent to vote in respect of the claim of any such Lender in anysuch proceeding.

 

Each Issuing Bank shall act on behalf of the Lenderswith respect to any Letters of Credit issued by it and the documents associatedtherewith, and each Issuing Bank shall have all of the benefits and immunities(i) provided to the Agents in this Article VIII with respectto any acts taken or omissions suffered by such Issuing Bank in connection withLetters of Credit issued by it or proposed to be issued by it and theapplications and agreements for letters of credit pertaining to such Letters ofCredit as fully as if the term “Agent” as used in this Article VIIIincluded such Issuing Bank with respect to such acts or omissions and(ii) as additionally provided herein with respect to such Issuing Bank.

 

# ARTICLE IX

#  

# ***Miscellaneous***

#  

SECTION 9.01.      ***Notices***.  Notices and other communications provided forherein shall be in writing and shall be delivered by hand or overnight courierservice, mailed by certified or registered mail or sent by fax, as follows:

 

### (a)           if to the Borrowers,to them at:

###  

c/o VWRInternational, Inc.1310 Goshen ParkwayWest Chester, Pennsylvania 19380Attention of:  Scott Smith, VicePresident and Corporate Treasurer, and George Van Kula, Senior Vice President,General Counsel and Secretary(Fax No. (610) 436-1760 and (610) 701-9896)Email address: scott_g_smith@vwr.com and george_vankula@vwr.com

 

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with a copy to (whichshall not constitute notice):

 

Madison DearbornPartners, LLCThree First National PlazaSuite 3800Chicago, Illinois  60602Attention of: Nicholas Alexos and Timothy Sheehan(Fax No. (312) 895-1256)Email address:  nalexos@mdcp.com andtsheehan@mdcp.com

 

and

 

Kirkland & EllisLLP200 East Randolph DriveChicago, Illinois  60601Attention of: Sanford E. Perl, P.C. and Michael D. Wright(Fax No. (312) 861-2200)Email address:  sperl@kirkland.com andmwright@kirkland.com

 

(b)           if to Bank of America, N.A. as anAgent or Swingline Lender, to:

 

Bank of America, N.A.101 North Tryon StreetMail Code:  NC1-001-04-39Charlotte, NC  28255Attention: Monika PatelTelephone:  (704) 386-5094Telecopier:  (704) 409-01579674Electronic Mail: monika.patel@bankofamerica.com;

 

and

 

Bank of America, N.A.Agency Management1455 Market Street, 5th FloorMail Code:  CA5-701-05-19San Francisco, CA  94103Attention:  Robert RittelmeyerTelephone:  (415) 436-2616Telecopier:  (415) 503-5099Electronic Mail: robert.j.rittelmeyer@bankofamerica.com

 

(c)           if to Bank of America, N.A. asIssuing Bank, to:

 

Bank of America, N.A.Trade Operations1 Fleet WayMail Code:  PA6-580-02-30Scranton, PA  18507Attention:  John YzeikTelephone:  (570) 330-4315Telecopier:  (570) 330-4186Electronic Mail: john.p.yzeik@bankofamerica.com; and

 

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(d)           if to a Lender, to it at its address(or fax number) set forth on Schedule 2.01 or in the Assignment andAcceptance pursuant to which such Lender shall have become a party hereto.

 

All notices and other communications given to anyparty hereto in accordance with the provisions of this Agreement shall bedeemed to have been given on the date of receipt if delivered by hand orovernight courier service or sent by fax or on the date 3 Business Days afterdispatch by certified or registered mail if mailed, in each case, delivered,sent or mailed (properly addressed) to such party as provided in this Section 9.01or in accordance with the latest unrevoked direction from such party given inaccordance with this Section 9.01. As agreed to among the ParentBorrower, the Administrative Agent and the applicable Lenders from time to timein writing, notices and other communications may also be delivered or furnishedby e-mail; provided that approval of such procedures may be limited toparticular notices or communications. All such notices and other communicationssent to an e-mail address shall be deemed received upon the sender’s receipt ofan acknowledgement from the intended recipient (such as by the “return receiptrequested” function, as available, return e-mail or other writtenacknowledgement), provided that if not given during the normal businesshours of the recipient, such notice or communication shall be deemed to havebeen given at the opening of business on the next Business Day for therecipient.

 

SECTION 9.02.      ***Survival of Agreement***.  All covenants, agreements, representationsand warranties made by the Borrowers herein or any other Loan Document, shallbe considered to have been relied upon by the Agents, the Lenders and theIssuing Banks and shall survive the making by the Lenders of the Loans and theissuance of Letters of Credit by each Issuing Bank, regardless of anyinvestigation made by the Agents, the Lenders or such Issuing Bank or on theirbehalf, and notwithstanding that any Agent, any Lender or any Issuing Bank mayhave had notice or actual knowledge of any Default at the time of any CreditEvent shall continue in full force and effect until the Termination Date.  The provisions of Sections 2.14, 2.16,2.20 and 9.05 shall remain operative and in full force and effectregardless of the expiration of the term of this Agreement, the consummation ofthe transactions contemplated hereby, the repayment of any of the Loans, theexpiration of the Commitments, the expiration of any Letter of Credit, theinvalidity or unenforceability of any term or provision of this Agreement orany other Loan Document, or any investigation made by or on behalf of theAdministrative Agent, the Collateral Agent, any Lender or any Issuing Bank.

 

SECTION 9.03.      ***Binding Effect***.  This Agreement shall become effective when itshall have been executed by the Borrowers and the Administrative Agent and whenthe Administrative Agent shall have received counterparts hereof which, whentaken together, bear the signatures of each of the other parties hereto.

 

SECTION 9.04.      ***Successors and Assigns***.

 

### (a)           Whenever in thisAgreement any of the parties hereto is referred to, such reference shall bedeemed to include the permitted successors and assigns of such party; and allcovenants, promises and agreements by or on behalf of the Borrowers, theAdministrative Agent, the Collateral Agent, any Issuing Bank or the Lendersthat are contained in this Agreement shall bind and inure to the benefit oftheir respective successors and assigns.

###  

### (b)           Each Lender mayassign to one or more assignees (in each case, other than to DisqualifiedInstitutions) all or a portion of its interests, rights and obligations underthis Agreement (including all or a portion of its Commitment and the Loans atthe time owing to it); provided, however, that (i) each ofthe Administrative Agent and the Parent Borrower must give its prior written consentto such assignment (which consent shall not be unreasonably withheld ordelayed); provided that no such consent shall be required to any suchassignment made to a Lender or an Affiliate or Related Fund of a Lender (ineach case, other than to Disqualified Institutions) (each, an “EligibleAssignee”) and the consent of the Parent Borrower shall not be requiredduring the continuance of any Event of Default arising under clause (b),(c), (g)(i) or (h) of Article VII,(ii) in the case of any assignment of a Revolving Credit Commitment, eachIssuing Bank (to the extent its L/C Exposure equals or exceeds $5,000,000) andthe Swingline Lender must give its prior written consent (which consent shallnot be unreasonably withheld or delayed), (iii) (A) in the case ofany assignment, other than assignments to any Eligible Assignee, the amount ofthe Revolving Credit Commitment of the assigning Lender (or, in the case of anassignment of Loans after the Revolving Credit Commitment has expired or beenterminated, the aggregate principal amount of the loans of the assigningLenders) subject to each such assignment (determined as of the date of theAssignment and Acceptance with respect to such assignment is delivered to theAdministrative Agent) shall not be less than $5,000,000 (or, if 

 

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### less,the entire remaining amount of such Lender’s Revolving Credit Commitment (orLoans) and shall be in an amount that is an integral multiple of $1,000,000 (orthe entire remaining amount of such Lender’s Revolving Credit Commitment (orLoans) of the applicable Class), the amount of the Dollar Term Loan Commitmentor Dollar Term Loans of the assigning Lender subject to each such assignment(determined as of the date of the Assignment and Acceptance with respect tosuch assignment is delivered to the Administrative Agent) shall not be lessthan $1,000,000 (or if less, the entire remaining amount of such Lender’sDollar Term Loan Commitment or Dollar Term Loans) and shall be in an amountthat is an integral multiple of $1,000,000 (or the entire remaining amount ofsuch Lender’s Dollar Term Loan Commitment or Dollar Term Loans of the applicableClass) and the amount of the Euro Term Loan Commitment or Euro Term Loans ofthe assigning Lender subject to each such assignment (determined as of the dateof the Assignment and Acceptance with respect to such assignment is deliveredto the Administrative Agent) shall not be less than €1,000,000 (or if less, theentire remaining amount of such Lender’s Euro Term Loan Commitment or Euro TermLoans) and shall be in an amount that is an integral multiple of €500,000 (orthe entire remaining amount of such Lender’s Euro Term Loan Commitment or EuroTerm Loans of the applicable Class), provided, however, thatsimultaneous assignments by or to two or more Related Funds shall be combinedfor purposes of determining whether the minimum assignment requirement is met,and (B) in the case of any assignment to any Eligible Assignee, after givingeffect to such assignment, the aggregate Revolving Credit Commitments (orLoans), Term Loan Commitments or Term Loans of the assigning Lender and itsAffiliates and Related Funds shall be zero or not less than $1,000,000 and theaggregate Revolving Credit Commitments (or Loans) or Term Loan Commitments orTerm Loans of the assignee Lenders and their Affiliates and Related Funds shallbe not less than $1,000,000, (iv) the parties to each such assignmentshall execute and deliver to the Administrative Agent an Assignment andAcceptance (such Assignment and Acceptance to be (A) electronicallyexecuted and delivered to the Administrative Agent via an electronic settlementsystem then acceptable to the Administrative Agent (or, if previously agreedwith the Administrative Agent, manually), and (B) delivered together witha processing and recordation fee of $3,500, unless waived or reduced by theAdministrative Agent in its sole discretion; provided that only one suchfee shall be payable in connection with simultaneous assignments by or to twoor more Related Funds) and (v) the assignee, if it shall not be a Lenderimmediately prior to the assignment, shall deliver to the Administrative Agentan Administrative Questionnaire and the tax forms required under Section 2.20(e),(f) or (g), as applicable. Upon acceptance and recording pursuant to paragraph (e) ofthis Section 9.04, from and after the effective date specified ineach Assignment and Acceptance, (A) the assignee thereunder shall be aparty hereto and, to the extent of the interest assigned by such Assignment andAcceptance, have the rights and obligations of a Lender under this Agreement and(B) the assigning Lender thereunder shall, to the extent of the interestassigned by such Assignment and Acceptance, be released from its obligationsunder this Agreement (and, in the case of an Assignment and Acceptance coveringall or the remaining portion of an assigning Lender’s rights and obligations underthis Agreement, such Lender shall cease to be a party hereto but shall continueto be entitled to the benefits of Sections 2.14, 2.16, 2.20and 9.05 with respect to facts and circumstances occurring prior to theeffective date of such assignment, as well as to any Fees accrued for itsaccount and not yet paid).  Anyassignment or transfer that does not comply with this paragraph shall betreated for purposes of this Agreement as a sale by such Lender of aparticipation in such rights and obligations in accordance with paragraph(f) of this Section 9.04.

###  

### (c)           By executing anddelivering an Assignment and Acceptance, the assigning Lender thereunder andthe assignee thereunder shall be deemed to confirm to and agree with each otherand the other parties hereto as follows:  (i) such assigningLender warrants that it is the legal and beneficial owner of the interest beingassigned thereby free and clear of any adverse claim and that its Term LoanCommitment and Revolving Credit Commitment, and the outstanding balances of itsTerm Loans and Revolving Loans, in each case without giving effect to assignmentsthereof which have not become effective, are as set forth in such Assignmentand Acceptance, (ii) except as set forth in (i) above, such assigningLender makes no representation or warranty and assumes no responsibility withrespect to any statements, warranties or representations made in or inconnection with this Agreement, or the execution, legality, validity,enforceability, genuineness, sufficiency or value of this Agreement, any otherLoan Document or any other instrument or document furnished pursuant hereto, orthe financial condition of Holdings, the Borrowers or any subsidiary or theperformance or observance by Holdings, the Borrowers or any subsidiary of anyof its obligations under this Agreement, any other Loan Document or any otherinstrument or document furnished pursuant hereto, (iii) such assigneerepresents and warrants that it is legally authorized to enter into suchAssignment and Acceptance, (iv) such assignee confirms that it hasreceived a copy of this Agreement, together with copies of the most recentfinancial statements referred to in Section 3.05(a) ordelivered pursuant to 

 

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### Section 5.04 and such otherdocuments and information as it has deemed appropriate to make its own creditanalysis and decision to enter into such Assignment and Acceptance,(v) such assignee will independently and without reliance upon the AdministrativeAgent, the Collateral Agent, such assigning Lender or any other Lender andbased on such documents and information as it shall deem appropriate at thetime, continue to make its own credit decisions in taking or not taking actionunder this Agreement, (vi) such assignee appoints and authorizes theAdministrative Agent and the Collateral Agent to take such action as agent onits behalf and to exercise such powers under this Agreement as are delegated tothe Administrative Agent and the Collateral Agent, respectively, by the termshereof, together with such powers as are reasonably incidental thereto and(vii) such assignee agrees that it will perform in accordance with theirterms all the obligations which by the terms of this Agreement are required tobe performed by it as a Lender.

###  

### (d)           The AdministrativeAgent, acting solely for this purpose as an agent of the Borrowers, shall maintainat one of its offices a copy of each Assignment and Acceptance delivered to itand a register for the recordation of the names and addresses of the Lendersand any changes thereto, whether by assignment or otherwise, and the Commitmentof, and principal amount of the Loans (and related interest amount and feeswith respect to such Loan) owing and paid to, each Lender pursuant to the termshereof from time to time (the “Register”).  The entries in the Register shall beconclusive and the Borrowers, the Administrative Agent, each Issuing Bank, theCollateral Agent and the Lenders may treat each Person whose name is recordedin the Register pursuant to the terms hereof as a Lender hereunder for allpurposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for inspectionby the Borrowers and Lenders at any reasonable time and from time to time uponreasonable prior notice.

###  

### (e)           Upon its receipt of,and consent to, a duly completed Assignment and Acceptance executed by anassigning Lender and an assignee, an Administrative Questionnaire completed inrespect of the assignee (unless the assignee shall already be a Lenderhereunder), the processing and recordation fee referred to in paragraph (b) above,if applicable, and the written consent of the Administrative Agent, theBorrowers and the Issuing Banks to such assignment (in each case to the extentrequired pursuant to paragraph (b) above) and any applicabletax forms required by Section 2.20(e), (f) or (g),as applicable, the Administrative Agent shall (i) accept such Assignmentand Acceptance and (ii) promptly record the information contained thereinin the Register. No assignment shall be effective unless it has been recordedin the Register as provided in this paragraph (e).

###  

### (f)            Each Lender maywithout the consent of the Borrowers, the Swingline Lender, any Issuing Bank orthe Administrative Agent sell participations to one or more banks or otherPersons (other than to Disqualified Institutions) in all or a portion of itsrights and obligations under this Agreement (including all or a portion of itsCommitment and the Loans owing to it and its participations in the L/C Exposureand/or Swingline Loans); provided, that (i) such Lender’sobligations under this Agreement shall remain unchanged, (ii) such Lendershall remain solely responsible to the other parties hereto for the performanceof such obligations, (iii) the participating banks or other Persons shallbe entitled to the benefit of the cost protection provisions contained in Sections 2.14,2.16 and 2.20 to the same extent as if they were Lenders (but,with respect to any particular participant, to no greater extent than theLender that sold the participation to such participant and in the case of Section 2.20,only if such participant shall have provided any form of information that itwould have been required to provide under such Section if it were aLender), (iv) to the extent permitted by applicable law, each participantalso shall be entitled to the benefits of Section 9.06 as though itwere a Lender, so long as such participant agrees to be subject to Section 2.18as though it were a Lender and (v) the Borrowers, the AdministrativeAgent, each Issuing Bank, the Swingline Lender and the Lenders shall continueto deal solely and directly with such Lender in connection with such Lender’srights and obligations under this Agreement, and such Lender shall retain thesole right to enforce the obligations of the Borrowers relating to the Loans orL/C Disbursements and to approve any amendment, modification or waiver of anyprovision of this Agreement (other than amendments, modifications or waiversdescribed in clauses (i), (ii) and (iii) of Section 9.08(b) asit pertains to the Loans or Commitments in which such participant has aninterest).  Each Lender selling aparticipation to a participant (i) shall keep a register, meeting therequirements of Treasury Regulation Section 5f.103-1(c), of each suchparticipation, specifying such participant’s entitlement to payments ofprincipal and interest with respect to such participation, and (ii) shallprovide the Administrative Agent and the Borrowers with the applicable forms,certificates and statements described in Section 2.20(e) or (f) hereof,as applicable, as if such participant was a Lender hereunder.  Notwithstanding anything in clause(ii) of the immediately preceding sentence to the contrary, each Lendershall have the right to sell one or 

 

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### moreparticipations to one or more lenders or other Persons that provide financingto such Lender in the form of sales and repurchases of participations withouthaving to satisfy the requirements set forth therein.

###  

### (g)           Any Lender orparticipant may, in connection with any assignment or participation or proposedassignment or participation pursuant to this Section 9.04, discloseto the assignee or participant or proposed assignee or participant anynon-public information relating to the Borrowers furnished to such Lender by oron behalf of the Borrowers; provided that prior to any such disclosure,each such assignee or participant or proposed assignee or participant shallexecute an agreement whereby such assignee or participant shall agree (subjectto customary exceptions) to preserve the confidentiality of such non-publicinformation on terms no less restrictive than those applicable to the Lenderspursuant to Section 9.16.

###  

### (h)           Any Lender may,without the consent of the Borrowers or the Administrative Agent, at any timeassign all or any portion of its rights under this Agreement to secureextensions of credit to such Lender or in support of obligations owed by suchLender; provided that (i) such assignment shall not increase thecosts or expenses or otherwise increase or change the obligations of theBorrowers hereunder and (ii) no such assignment shall release a Lenderfrom any of its obligations hereunder or substitute any such assignee for suchLender as a party hereto.

###  

### (i)            Notwithstandinganything to the contrary contained herein, any Lender (a “Granting Lender”)may grant to a special purpose funding vehicle (an “SPC”), identified assuch in writing from time to time by the Granting Lender to the AdministrativeAgent and the Borrowers, the option to provide to the Borrowers all or any partof any Loan that such Granting Lender would otherwise be obligated to make tothe Borrowers pursuant to this Agreement; providedthat (i) nothing herein shall constitute a commitment by any SPC tomake any Loan and (ii) if an SPC elects not to exercise such option orotherwise fails to provide all or any part of such Loan, the Granting Lendershall be obligated to make such Loan pursuant to the terms hereof.  The making of a Loan by an SPC hereundershall utilize the Commitment of the Granting Lender to the same extent, and asif, such Loan were made by such Granting Lender.  Each party hereto hereby agrees that (x)neither the grant to any SPC nor the exercise by any SPC of such option shallincrease the costs or expenses or otherwise increase or change the obligationsof the Borrowers hereunder, (y) no SPC shall be liable for any indemnity orsimilar payment obligation under this Agreement (all liability for which shallremain with the Granting Lender) and (z) the Granting Lender shall for allpurposes remain the Lender of record hereunder. In addition, notwithstanding anything to the contrary contained in this Section 9.04,any SPC may (A) with notice to, but without the prior written consent of,the Parent Borrower and the Administrative Agent and without paying anyprocessing fee therefor, assign all or a portion of its interests in any Loansto the Granting Lender and (B) disclose on a confidential basis anynon-public information relating to its funding of Loans to any rating agency,commercial paper dealer or provider of any surety, guarantee or credit orliquidity enhancement to such SPC.

###  

### (j)            Neither the ParentBorrower nor any Foreign Subsidiary Borrower (unless the Parent Borrower has assumedin writing all Obligations of any Foreign Subsidiary Borrower hereunder) shallassign or delegate any of its rights or duties hereunder (other than in atransaction permitted by Section 6.04) without the prior writtenconsent of the Administrative Agent, each Issuing Bank and each Lender, and anyattempted assignment without such consent shall be null and void.

###  

### (k)           If the Parent Borrowerwishes to replace the Loans or Commitments under any Credit Facility with oneshaving different terms, it shall have the option, with the consent of theAdministrative Agent and subject to at least three Business Days’ advancenotice to the Lenders under such Credit Facility, instead of prepaying theLoans or reducing or terminating the Commitments to be replaced, to(i) require the Lenders under such Credit Facility to assign such Loans orCommitments to the Administrative Agent or its designees and (ii) amendthe terms thereof in accordance with Section 9.08 (with suchreplacement, if applicable, being deemed to have been made pursuant to Section 9.08(d)).  Pursuant to any such assignment, all Loansand Commitments to be replaced shall be purchased at par (allocated among theLenders under such Credit Facility in the same manner as would be required ifsuch Loans were being optionally prepaid or such Commitments were beingoptionally reduced or terminated by the Borrowers), accompanied by payment ofany accrued interest and fees thereon and any amounts owing pursuant to Section 2.16.  By receiving such purchase price, the Lendersunder such Credit Facility shall automatically be deemed to have assigned theLoans or Commitments under such Credit Facility pursuant to the terms of an 

 

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### Assignmentand Acceptance, and accordingly no other action by such Lenders shall berequired in connection therewith.  Theprovisions of this paragraph are intended to facilitate the maintenance of theperfection and priority of existing security interests in the Collateral duringany such replacement.

###  

SECTION 9.05.      ***Expenses; Indemnity***.

 

### (a)           The Parent Borroweragrees to pay (and , to the extent directly attributable to Revolving Loansmade to any Foreign Subsidiary Borrower hereunder, such Foreign SubsidiaryBorrower shall, jointly and severally with the Parent Borrower, agree to pay)(i) all reasonable out-of-pocket expenses (but limited, as to legal feesand expenses, to those of Cahill Gordon & Reindel LLP, counsel for theAgents and the Arrangers taken as a whole, and, if reasonably necessary, of onelocal counsel in any material jurisdiction) incurred by the Arrangers and theAgents, in connection with the syndication of the Credit Facilities and thepreparation and administration of this Agreement and the other Loan Documentsor in connection with any amendments, modifications or waivers of theprovisions hereof or thereof (whether or not the transactions hereby or therebycontemplated shall be consummated) and (ii) all reasonable out-of-pocketexpenses (but limited, as to legal fees and expenses, to one counsel for allsuch Persons taken as a whole, and, if reasonably necessary, of one localcounsel to all such Persons taken as a whole in any material jurisdiction) incurredby the Agents, any Issuing Bank, the Swingline Lender or any Lender inconnection with the enforcement or protection of its rights or remedies in connectionwith this Agreement and the other Loan Documents or in connection with theLoans made or Letters of Credit issued hereunder.

###  

### (b)           The relevantBorrower agrees to indemnify each Arranger, the Administrative Agent, theCollateral Agent, each Lender, each Issuing Bank, the Swingline Lender and eachof the foregoing Persons’ Affiliates and the respective directors, officers,employees and agents of such Person and such Person’s Affiliates and theirsuccessors and assigns (each such Person being called an “Indemnitee”)against, and to hold each Indemnitee harmless from, any and all costs, expenses(including reasonable fees, out-of-pocket disbursements and other charges ofone counsel to the Indemnitees, taken as a whole, and one local counsel to theIndemnitees taken as a whole in each material jurisdiction; providedthat if (i) one or more Indemnitees shall have reasonably concluded thatthere may be legal defenses available to it that are different from or in additionto those available to one or more other Indemnitees or (ii) therepresentation of the Indemnitees (or any portion thereof) by the same counselwould be inappropriate due to actual or potential differing interests betweenthem, then such expenses shall include the reasonable fees, out-of-pocketdisbursements and other charges of one separate counsel to such Indemnitees,taken as a whole, in each relevant jurisdiction), and liabilities of suchIndemnitee arising out of or in connection with (w) the execution ordelivery of this Agreement or any other Loan Document or any agreement or instrumentcontemplated thereby, the performance by the parties thereto of their respectiveobligations thereunder or the consummation of the Transactions and the othertransactions contemplated thereby (including the syndication of the CreditFacilities), (x) the use of the proceeds of the Loans or issuance ofLetters of Credit, (y) any actual or prospective claim, litigation,investigation or proceeding relating to any of the foregoing, whether or notany Indemnitee is a party thereto (and regardless of whether such matter isinitiated by a third party or by the Borrowers, any other Loan Party or any oftheir respective Affiliates), or (z) any actual or alleged presence orRelease of Hazardous Materials on any property currently or formerly owned oroperated by Holdings, the Borrowers or any of the subsidiaries, or anyliability under Environmental Laws related in any way to Holdings, theBorrowers or the subsidiaries; provided that such indemnity shall not,as to any Indemnitee, be available to the extent that such costs, expenses orliabilities (x) resulted from the gross negligence, bad faith, fraud orwillful misconduct of such Indemnitee (or its Affiliates and the respectivedirectors, officers, employees and agents of such Indemnitee and such Indemnitee’sAffiliates) (each, a “related party” of such Indemnitee) or material breach ofits (or any of its related parties’) obligations hereunder or under any of theother Loan Documents or in connection with any transaction contemplated herebyor thereby, (y) relate to the presence or Release of Hazardous Materialsthat first occur at any property owned by Holdings or the Borrowers after suchproperty is transferred to any Indemnitee, any of its related parties or any oftheir respective successors or assigns by foreclosure, deed-in-lieu offoreclosure or similar transfer or (z) resulted from any dispute solelyamong Indemnitees and (or their related parties) not involving the Borrowers,the Sponsor or their respective Affiliates. The Parent Borrower shall have no obligation to reimburse any Indemniteefor fees and expenses unless such Indemnitee provides the Parent Borrower withan undertaking in which such Indemnitee agrees to refund and return any and allamounts paid by the Parent Borrower to such Indemnitee to the extent any of theforegoing items in clauses (x) through (z) occurs.  Notwithstanding the foregoing, this Section 9.05shall not apply to Tax matters, which shall be governed exclusively by Section 2.20.

 

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### (c)           To the extent thatany Borrower fails to pay any amount required to be paid by it to the Arrangers,the Administrative Agent or any other Indemnitee related thereto under paragraph (a) or(b) of this Section (and without limiting its obligation to doso), each Lender severally agrees to pay to the Arrangers, such Indemnitee andthe Administrative Agent, such Lender’s pro rata share (determined as of thetime that the applicable unreimbursed expense or indemnity payment is sought)of such unpaid amount; provided that the unreimbursed expense or indemnifiedloss, claim, damage, liability or related expense, as the case may be, wasincurred by or asserted against the Arrangers, the Agents, the Issuing Banks,the Swingline Lender or such Indemnitee in its capacity as such.  For purposes hereof, a Lender’s “pro ratashare” shall be determined based upon its share of the sum of the AggregateRevolving Credit Exposure, outstanding Term Loans and unused Commitments at thetime.

###  

### (d)           To the extentpermitted by applicable law, no party hereto shall assert, and each partyhereto hereby waives, any claim from (i) the use by others of informationor other materials obtained through electronic, telecommunications or otherinformation transmission systems, except to the extent such damages haveresulted from the willful misconduct, bad faith, fraud or gross negligence ofsuch party of any of its Affiliates or the respective directors, officers,employees and agents of such party and such party’s Affiliates and (ii) onany theory of liability, for special, indirect, consequential or punitivedamages (as opposed to direct or actual damages) arising out of, in connectionwith, or as a result of, this Agreement or any agreement or instrumentcontemplated hereby, the Transactions, any Loan or Letter of Credit or the useof the proceeds thereof.

###  

### (e)           The provisions ofthis Section 9.05 shall survive the expiration of the term of thisAgreement, the consummation of the transactions contemplated hereby, therepayment of any of the Loans, the expiration of the Commitments, theexpiration of any Letter of Credit, the invalidity or unenforceability of anyterm or provision of this Agreement or any other Loan Document, or anyinvestigation made by or on behalf of the Administrative Agent, the CollateralAgent, any Lender or the Issuing Banks. All amounts due under this Section 9.05 shall be payablewithin 30 days after receipt of an invoice relating thereto setting forth suchamounts in reasonable detail.

###  

SECTION 9.06.      ***Right of Setoff; Payments Set Aside***.

 

### (a)           If an Event ofDefault shall have occurred and be continuing, each Lender is hereby authorizedat any time and from time to time, except to the extent prohibited by law,without prior notice to any Borrower or any other Loan Party, any such noticebeing waived by each Borrower (on its own behalf and on behalf of each LoanParty and its subsidiaries) to set off and apply any and all deposits (generalor special, time or demand, provisional or final) at any time held and other indebtednessat any time owing by such Lender to or for the credit or the account of theBorrowers against any of and all the obligations of the Borrowers now orhereafter existing under this Agreement and other Loan Documents held by suchLender, irrespective of whether or not such Lender shall have made any demandunder this Agreement or such other Loan Document and although such obligationsmay be contingent or unmatured or denominated in a currency different from thatof the applicable deposit or indebtedness. The rights of each Lender under this Section 9.06 are in additionto other rights and remedies (including other rights of setoff) which suchLender may have.  Each Lender agreespromptly to notify the Parent Borrower and the Administrative Agent after anysuch set off and application made by such Lender; provided that thefailure to give such notice shall not affect the validity of such set-off andapplication.

###  

### (b)           To the extent thatany payment by or on behalf of any Borrower is made to any Agent or any Lender,or any Agent or any Lender exercises its right of setoff, and such payment orthe proceeds of such setoff or any part thereof is subsequently invalidated,declared to be fraudulent or preferential, set aside or required (includingpursuant to any settlement entered into by such Agent or such Lender in itsdiscretion) to be repaid to a trustee, receiver or any other party, then(i) to the extent of such recovery the obligation or part thereoforiginally intended to be satisfied shall be revived and continued in fullforce and effect as if such payment had not been made or such setoff had notoccurred, and (ii) each Lender severally agrees to pay to theAdministrative Agent upon demand its applicable share of any amount sorecovered from or repaid by any Agent, plus interest thereon from the date ofsuch demand to the date such payment is made at a rate per annum equal to theFederal Funds Effective Rate from time to time in effect.

###  

SECTION 9.07.      ***Applicable Law***.  THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS(OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOANDOCUMENTS) 

 

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SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BYTHE LAWS OF THE STATE OF NEW YORK.  EACHLETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCEWITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO SUCH LAWSOR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARYCREDITS MOST RECENTLY PUBLISHED AND IN EFFECT, ON THE DATE SUCH LETTER OFCREDIT WAS ISSUED, BY THE INTERNATIONAL CHAMBER OF COMMERCE (THE“UNIFORM CUSTOMS”) AND, AS TO MATTERS NOT GOVERNED BY THEUNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW YORK.

 

SECTION 9.08.      ***Waivers; Amendment***.

 

### (a)           No failure or delayof the Administrative Agent, the Collateral Agent, any Lender or any IssuingBank in exercising any power or right hereunder or under any other Loan Documentshall operate as a waiver thereof, nor shall any single or partial exercise ofany such right or power, or any abandonment or discontinuance of steps toenforce such a right or power, preclude any other or further exercise thereofor the exercise of any other right or power. The rights and remedies of the Administrative Agent, the CollateralAgent, each Issuing Bank and the Lenders hereunder and under the other LoanDocuments are cumulative and are not exclusive of any rights or remedies thatthey would otherwise have.  No waiver ofany provision of this Agreement or any other Loan Document or consent to anydeparture by the Borrowers or any other Loan Party therefrom shall in any eventbe effective unless the same shall be permitted by clause (b) below,and then such waiver or consent shall be effective only in the specificinstance and for the purpose for which given. No notice or demand on the Borrowers in any case shall entitle theBorrowers to any other or further notice or demand in similar or othercircumstances.

###  

### (b)           Subject to Section 2.24and clause (d) below, and except for those actions expresslypermitted to be taken by the Agents, neither this Agreement nor any other LoanDocument nor any provision hereof or thereof may be waived, amended or modifiedexcept pursuant to an agreement or agreements in writing entered into by the RequiredLenders and the Loan Parties that are party thereto and are affected by suchwaiver, amendment or modification and acknowledged by the Administrative Agent;provided, however, that no such agreement shall (i) reducethe principal amount of, or extend or waive any scheduled amortization paymentor the final scheduled maturity date of or date for the payment of any intereston, any Loan or any date for reimbursement of an L/C Disbursement, forgive anysuch payment or any part thereof, or decrease the rate of interest on any Loanor L/C Disbursement, without the prior written consent of each Lender directlyand adversely affected thereby (it being understood that any change to thecomponent definitions of the Total Net Leverage Ratio affecting the determinationof interest and the waiver of a Default, Event of Default or default interestshall only require the consent of the Parent Borrower and the RequiredLenders), (ii) increase or extend the Commitment or decrease or extend thedate for payment of any Fees of any Lender without the prior written consent ofsuch Lender (it being understood that any change to the component definitionsof the Total Net Leverage Ratio affecting the determination of any Fee and thewaiver of a Default, Event of Default or default fees shall only require theconsent of the Parent Borrower and the Required Lenders), (iii) amend ormodify the provisions of Section 2.17, the provisions of Section 2.18,the provisions of Section 9.04(j) (it being understood that anychange to Section 6.04 shall only require approval of the RequiredLenders) or the provisions of this Section (except as set forth below) orrelease all or substantially all of the Guarantors or all or substantially allof the Collateral (except as permitted under Section 6.04 and theGuarantee and Collateral Agreement), without the prior written consent of eachLender, (iv) (A) engage in any transaction or series of relatedtransactions that would reduce the Total Assets to less than $2,000,000,000,(B) amend Section 6.05(p)(ii) or (C) waive or amendthis Section 9.08(b)(iv), in each case without the prior writtenconsent of the Required Class Lenders, or (v) reduce the percentagecontained in the definition of the term “Required Lenders”, “RequiredClass Lenders” or “Required Revolving Lenders” without the prior writtenconsent of each Lender, each Lender of the affected Class or eachRevolving Credit Lender, respectively (it being understood that with the consentof the Required Lenders, the Required Class Lenders or the RequiredRevolving Lenders, additional extensions of credit pursuant to this Agreementmay be included in the determination of the Required Lenders, RequiredRevolving Lenders or Required Class Lenders on substantially the samebasis as the Commitments and extensions of credit thereunder on the date hereofand this Section may be amended to reflect such extension of credit); provided,further, that (w) no such agreement shall amend, modify orotherwise affect the rights or duties of the Administrative Agent, theCollateral Agent, any Issuing Bank or the Swingline Lender hereunder or underany other Loan Document without the prior written consent of the AdministrativeAgent, the Collateral Agent, such 

 

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### IssuingBank or the Swingline Lender, as the case may be, (x) no such agreementshall make any change to the documents that by its terms affects the rights ofany Class of Lenders to receive payments in any manner different than anyother Class of Lenders without the written consent of the RequiredClass Lenders of such Class; (y) Section 9.04(i) maynot be amended, waived or otherwise modified without the consent of eachGranting Lender all or any part of whose Loans are being funded by an SPC atthe time of such amendment, waiver or other modification and (z)Schedule A may be amended, so long as no Default or Event of Default shallhave occurred and be continuing, to add additional Alternative Currencies uponthe execution and delivery by the Parent Borrower, each Revolving Credit Lenderand the Administrative Agent of a written instrument providing for suchamendment.

###  

### (c)           Notwithstanding theforegoing, in addition to any credit extensions and related IncrementalAmendments effectuated without the consent of Lenders in accordance with Section 2.24,this Agreement (including this Section 9.08 and Section 2.17)may be amended (or amended and restated) with the written consent of the RequiredLenders, the Administrative Agent and the Borrowers (i) to add one or moreadditional credit facilities to this Agreement and to permit the extensions ofcredit from time to time outstanding thereunder and the accrued interest andfees in respect thereof to share ratably in the benefits of this Agreement andthe other Loan Documents with the Term Loans and the Revolving Loans and theaccrued interest and Fees in respect thereof, (ii) to include appropriatelythe Lenders holding such credit facilities in any determination of the RequiredLenders, the Required Revolving Lenders, the Required Class Lenders andother definitions related to such new credit facilities and (iii) toprovide class protection for any additional credit facilities in a mannerconsistent with those provided herein for the Classes of Lenders contemplatedby this Agreement as in effect on the Closing Date.

###  

### (d)           Notwithstanding theforegoing, in addition, this Agreement may be amended with the written consentof the Administrative Agent, the Parent Borrower and the Lenders providing therelevant Replacement Term Loans (as defined below) to permit the refinancing inwhole, but not in part, of any Class of outstanding Term Loans or any thenoutstanding Class of Replacement Term Loans (“Refinanced Term Loans”)with a replacement term loan tranche hereunder (“Replacement Term Loans”),provided that (i) the aggregate principal amount of suchReplacement Term Loans shall not exceed the aggregate principal amount of suchRefinanced Term Loans, (ii) the Applicable Margin for such ReplacementTerm Loans shall not be higher than the Applicable Margin for such RefinancedTerm Loans, (iii) the Weighted Average Life to Maturity of suchReplacement Term Loans shall not be shorter than the weighted average life tomaturity of such Refinanced Term Loans at the time of such refinancing (withoutgiving effect to annual amortization on any Refinanced Term Loan Facility notin excess of 1% of the principal amount thereof) and (iv) all other termsapplicable to such Replacement Term Loans shall be substantially identical to,or less favorable to the Lenders providing such Replacement Term Loans than,those applicable to such Refinanced Term Loans, except to the extent necessaryto provide for covenants and other terms applicable to any period after thelatest final maturity of the Term Loans in effect immediately prior to suchrefinancing.

###  

### (e)           Notwithstanding theforegoing, any amendment, modification or waiver of, or consent with respect toSection 2.13(e) with respect to the application of anymandatory prepayment that results in a Class of Lenders being allocated alesser repayment than such Class would otherwise have been entitled to inthe absence of such amendment, modification or waiver, shall require theconsent of the Required Class Lenders or the Required Revolving Lenders,as applicable for such affected Class (except in the case where additionalextensions of terms loans are being afforded substantially the same treatmentafforded to the Term Loans pursuant to this Agreement on the Closing Date).

###  

### (f)            Each waiver, amendment,modification, supplement or consent made or given pursuant to this Section 9.08shall be effective only in the specific instance and for the specific purposefor which given, and such waiver, amendment, modification or supplement shallapply equally to each of the Lenders and shall be binding on the Loan Parties,the Lenders, the Agents and all future holders of the Loans and Commitments.

###  

### (g)           Schedule Bmay be amended (and this Agreement may be amended as provided for in clauses(i)(A) and (ii) below), so long as no Default or Event ofDefault shall have occurred and be continuing, as follows:

###  

#### (i)           Schedule Bwill be amended to add subsidiaries as additional Foreign Subsidiary Borrowers(provided that any such Foreign Subsidiary Borrower and its jurisdictionof organization (other than with 

 

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#### respect to any of the following jurisdictions: United Kingdom, Canada,Belgium and Germany) is reasonably satisfactory to the Administrative Agent):

####  

#### (A)          ifthe Parent Borrower shall have provided at least ten (10) Business Dayswritten notice to the Administrative Agent of its intention to amend Schedule Bto add a Foreign Subsidiary Borrower (which notice shall specify the name ofsuch Foreign Subsidiary Borrower and its jurisdiction of organization) (withthe Administrative Agent hereby agreeing to promptly furnish any such noticereceived from the Parent Borrower to each Potentially Restricted RevolvingCredit Lender) and either:

####  

#### (x)            theAdministrative Agent shall not have received from any Potentially RestrictedRevolving Credit Lender, prior to the date occurring ten (10) BusinessDays after the Administrative Agent received the respective written notice fromthe Parent Borrower, written notice to the effect that, in accordance with thenapplicable credit policies of such Revolving Credit Lender, as appliedconsistently, such Revolving Credit Lender does not generally provideextensions of credit in the jurisdiction of organization of the proposedForeign Subsidiary Borrower (with each Potentially Restricted Revolving CreditLender, if any, which provides such notice with respect to any jurisdictionbeing herein called a “Restricted Revolving Credit Lender” with respectto such jurisdiction); or

####  

#### (y)           thereis one or more Restricted Revolving Credit Lenders with respect to the relevantjurisdiction, and:

####  

#### (I)            theAdministrative Agent (or one or more of its Affiliates acting as the “fronting”Revolving Credit Lender to the respective Foreign Subsidiary Borrower) providesto such Restricted Revolving Credit Lenders “fronting” arrangements on termsand conditions customary for Bank of America and reasonably satisfactory tosuch Restricted Revolving Credit Lenders (including with respect to voting,payment of fees and interest and indemnities by any applicable RestrictedRevolving Credit Lender; it being understood that no Borrower shall have anygreater liability or obligation by reason of such “fronting” arrangement thanin would in the absence of such arrangement), pursuant to which (a) Bankof America or its relevant Affiliate (in its individual capacity) shall act asthe “fronting” Revolving Credit Lender for such Restricted Revolving CreditLender(s) in respect of extensions of credit otherwise required to be made tothe respective Foreign Subsidiary Borrower pursuant to the Revolving LoanCommitments of the respective Restricted Revolving Credit Lender(s), and(b) such Restricted Revolving Credit Lender(s) shall act as “indemnifyinglenders” in respect of Extensions of Credit made by Bank of America (in itscapacity as “fronting” Revolving Credit Lender) to such Foreign SubsidiaryBorrower, in each case, to the extent not prohibited by the laws of suchForeign Subsidiary Borrower’s jurisdiction, and

####  

#### (II) in order to implement the “fronting” and“indemnity” arrangements described in immediately preceding clause (I),each of the Borrowers and the Administrative Agent shall have entered intoeither (a) amendments to this Agreement, the Exhibits hereto and any otherLoan Documents in form and substance reasonably satisfactory to theAdministrative Agent and the Borrowers or (b) at the option of theAdministrative Agent (in its reasonable discretion), ancillary documents inform and substance reasonably satisfactory to the Administrative Agent and theBorrowers (which documents shall be thereafter deemed, for all purposes, to be“Loan Documents” hereunder) (it being hereby acknowledged and agreed by eachLender that such Lender shall have no right to consent to any amendment to thisAgreement effected in accordance with this clause (II) effected by theAdministrative Agent and the 

 

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#### Borrowers unless such Lender is materially adversely affected thereby);provided that (i) the Administrative Agent hereby agrees to provideto the applicable Restricted Revolving Credit Lender the “fronting”arrangements described in the preceding clause (y) and(ii) notwithstanding any provision herein to the contrary, in the eventpreceding clause (y) of this Section 9.08(g)(i)(A) isapplicable, and any Restricted Revolving Credit Lender decides for any reasonnot to agree to (or avail itself of) the “fronting” and “indemnity”arrangements provided pursuant thereto, (1) such Restricted RevolvingCredit Lender shall remain obligated to directly fund all extensions of creditpursuant to its Revolving Credit Commitment (including, without limitation, toForeign Subsidiary Borrowers) unless and until (and then to the extent) itassigns such Revolving Credit Commitment to another Person in accordance withthe relevant requirements of Section 9.04, (2) the provisionsof this Section 9.08(g)(i)(A) shall not be applicable and(3) Schedule B shall be amended in accordance with the remainingprovisions of Section 9.08(g)(i)(B) below; and

####  

#### (B)           upon(I) execution and delivery by the Parent Borrower, such additional ForeignSubsidiary Borrowers and the Administrative Agent of a Joinder Agreementsubstantially in the form of Exhibit H (a “Joinder Agreement”),providing for such subsidiaries to become Foreign Subsidiary Borrowershereunder and Grantors under and as defined in the Guarantee and CollateralAgreement (or shall otherwise enter into collateral and security documentsreasonably satisfactory to the Administrative Agent and providing, to theextent reasonably practicable under relevant law, substantially the equivalentof the lien and security interests contemplated to be provided by Grantorsunder the Guarantee and Collateral Agreement), (II) delivery to the AdministrativeAgent of (x) in the case of any Foreign Subsidiary Borrower the Capital Stockof which is held by a Domestic Subsidiary, a stock pledge agreement (or, if theparent corporation of such Foreign Subsidiary Borrower is a party to the Guaranteeand Collateral Agreement, a pledge pursuant to such agreement) covering 100% ofthe Capital Stock of such Foreign Subsidiary Borrower, together with anydocuments and instruments necessary to perfect the security interest to becreated thereby (provided that only 65% of the Capital Stock of suchForeign Subsidiary Borrower shall secure the Domestic Obligations), (y)corporate resolutions, other corporate documents, certificates and legalopinions in respect of such additional Foreign Subsidiary Borrowerssubstantially equivalent to comparable documents delivered on the Closing Datein respect of the Loan Parties on the Closing Date and (z) such other documentswith respect thereto as the Administrative Agent shall reasonably request, and(III) execution and delivery by the Parent Borrower, such Foreign SubsidiaryBorrower, all of the Revolving Credit Lenders and the Administrative Agent of awritten instrument providing for such amendment to Schedule B; providedthat the Parent Borrower and its Subsidiaries shall not be required to complywith the requirements of the foregoing clauses (II)(x), (y) or (z)if the Administrative Agent, in its sole discretion, determines that the costof such compliance is excessive in relation to the value of the collateral securityto be afforded thereby; provided, further, that no documentdescribed in the foregoing clauses (II)(x), (y) or (z)shall be required, or the form of such document shall be modified, to theextent required to avoid (A) any violation of applicable law or(B) any violation of the provisions of any joint venture or other materialagreement governing or binding such Domestic Subsidiary or other Subsidiary ofthe Parent Borrower.  Any DomesticSubsidiary or other Subsidiary of the Parent Borrower that cannot execute sucha document or whose document must be amended for the foregoing reasons shallpromptly upon any change of law or waiver or lapse of the applicable contractualrestriction enter into such document or amend the existing document to complywith this Section 9.08(g)(i) in a manner reasonably satisfactoryto the Administrative Agent.

####  

#### (ii)          ThisAgreement may be amended with the written consent of the Parent Borrower andthe Administrative Agent to add or modify any provision with respect to theextension of credit to any Foreign Subsidiary Borrower and the relatedrequirements hereunder if it is determined by the Parent Borrower and theAdministrative Agent that such addition or modification is reasonably necessaryto comply with any domestic 

 

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#### or local law, rule or regulation (including without limitation,any local tax authorities) or the advice of counsel.

####  

#### (iii)         Schedule Bwill be amended to remove any Subsidiary as a Foreign Subsidiary Borrower uponexecution and delivery by the Parent Borrower to the Administrative Agent of awritten notification to such effect and repayment in full of all Loans made tosuch Foreign Subsidiary Borrower and repayment in full of all other amounts(other than contingent obligations) owing by such Foreign Subsidiary Borrowerunder this Agreement and the other Loan Documents.

####  

SECTION 9.09.      ***Interest Rate Limitation***.  Notwithstanding anything herein to thecontrary, if at any time the interest rate applicable to any Loan orparticipation in any L/C Disbursement, together with all fees, charges andother amounts which are treated as interest on such Loan or participation insuch L/C Disbursement under applicable law (collectively the “Charges”),shall exceed the maximum lawful rate (the “Maximum Rate”) which may becontracted for, charged, taken, received or reserved by the Lender holding suchLoan or participation in accordance with applicable law, the rate of interestpayable in respect of such Loan or participation hereunder, together with allCharges payable in respect thereof, shall be limited to the Maximum Rate and,to the extent lawful, the interest and Charges that would have been payable inrespect of such Loan or participation but were not payable as a result of theoperation of this Section 9.09 shall be cumulated and the interestand Charges payable to such Lender in respect of other Loans or participationsor periods shall be increased (but not above the Maximum Rate therefor) untilsuch cumulated amount shall have been received by such Lender.

 

SECTION 9.10.      ***Entire Agreement***.  This Agreement, the Fee Letter and the otherLoan Documents constitute the entire contract between the parties relative tothe subject matter hereof.  Any otherprevious agreement among the parties with respect to the subject matter hereofis superseded by this Agreement and the other Loan Documents.  Nothing in this Agreement or in the otherLoan Documents, expressed or implied, is intended to confer upon any Person(other than the parties hereto and thereto, their respective successors andassigns permitted hereunder (including any Affiliate of any Issuing Bank thatissues any Letter of Credit) and, to the extent expressly contemplated hereby,the Indemnitees, the Arrangers, the Related Parties of each of theAdministrative Agent, the Collateral Agent, the Issuing Banks and the Lenders)any rights, remedies, obligations or liabilities under or by reason of thisAgreement or the other Loan Documents.

 

SECTION 9.11.      ***WAIVER OF JURY TRIAL***.  EACH PARTY HERETO HEREBY WAIVES, TO THEFULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO ATRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUTOF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOANDOCUMENTS.  EACH PARTY HERETO(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTYHAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, INTHE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TOENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY,AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.

 

SECTION 9.12.      ***Severability***.  In the event any one or more of theprovisions contained in this Agreement or in any other Loan Document should beheld invalid, illegal or unenforceable in any respect, the validity, legalityand enforceability of the remaining provisions contained herein and thereinshall not in any way be affected or impaired thereby (it being understood thatthe invalidity of a particular provision in a particular jurisdiction shall notin and of itself affect the validity of such provision in any other jurisdiction).  The parties shall endeavor in good-faith negotiationsto replace the invalid, illegal or unenforceable provisions with validprovisions the economic effect of which comes as close as possible to that ofthe invalid, illegal or unenforceable provisions.

 

SECTION 9.13.      ***Counterparts***.  This Agreement may be executed incounterparts (and by different parties hereto on different counterparts), eachof which shall constitute an original but all of which when taken togethershall constitute a single contract, and shall become effective as provided in Section 9.03.  Delivery of an executed signaturepage to this Agreement by facsimile transmission shall be as effective asdelivery of a manually signed counterpart of this Agreement.

 

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SECTION 9.14.      ***Headings***.  Article and Section headings andthe Table of Contents used herein are for convenience of reference only, arenot part of this Agreement and are not to affect the construction of, or to betaken into consideration in interpreting, this Agreement.

 

SECTION 9.15.      ***Jurisdiction; Consent to Service of Process***.

 

### (a)           Each of the partieshereto hereby irrevocably and unconditionally submits, for itself and its property,to the nonexclusive jurisdiction of any New York State court or Federalcourt of the United States of America sitting in New York City, and anyappellate court from any thereof, in any action or proceeding arising out of orrelating to this Agreement or the other Loan Documents, or for recognition orenforcement of any judgment, and each of the parties hereto hereby irrevocablyand unconditionally agrees that all claims in respect of any such action orproceeding may be heard and determined in such New York State or, to theextent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any suchaction or proceeding shall be conclusive and may be enforced in otherjurisdictions by suit on the judgment or in any other manner provided bylaw.  Nothing in this Agreement shallaffect any right that the Administrative Agent, the Collateral Agent, theIssuing Banks or any Lender may otherwise have to bring any action orproceeding relating to this Agreement or the other Loan Documents against theBorrowers, Holdings or their respective properties in the courts of anyjurisdiction.

###  

### (b)           Each of the partieshereto hereby irrevocably and unconditionally waives, to the fullest extent itmay legally and effectively do so, any objection which it may now or hereafterhave to the laying of venue of any suit, action or proceeding arising out of orrelating to this Agreement or the other Loan Documents in any New YorkState or Federal court.  Each of theparties hereto hereby irrevocably waives, to the fullest extent permitted bylaw, the defense of an inconvenient forum to the maintenance of such action orproceeding in any such court.

###  

### (c)           Each party to thisAgreement irrevocably consents to service of process in the manner provided fornotices in Section 9.01. Nothing in this Agreement will affect the right of any party to thisAgreement to serve process in any other manner permitted by law.

###  

### (d)           If for the purposesof obtaining judgment in any court it is necessary to convert a sum duehereunder in dollars, Canadian Dollars, euros, Sterling or other AlternativeCurrency into another currency, the parties hereto agree, to the fullest extentthat they may effectively do so, that the rate of exchange used shall be thatat which in accordance with normal banking procedures the Administrative Agentcould purchase dollars, Canadian Dollars, euros, Sterling or other AlternativeCurrency, as the case may be, with such other currency at the spot rate ofexchange quoted by the Administrative Agent at 11:00 a.m. (New York Citytime) on the Business Day preceding that on which final judgment is given, forthe purchase of dollars, Canadian Dollars, euros, Sterling or other AlternativeCurrency, as the case may be, for delivery two Business Days thereafter.  The obligation of each Borrower in respect ofany such sum due from it to the Administrative Agent or the Lenders hereunderor under the other Loan Documents shall, notwithstanding any judgment in a currency(the “Judgment Currency”)other than that in which sum is denominated in accordance with the applicableprovisions of this Agreement (the “AgreementCurrency”), be discharged only to the extent that on the BusinessDay following receipt by the Administrative Agent of any sum adjudged to be sodue in the Judgment Currency, the Administrative Agent may in accordance withnormal banking procedures purchase the Agreement Currency with the JudgmentCurrency.  If the amount of the AgreementCurrency so purchased is less than the sum originally due to the AdministrativeAgent in the Agreement Currency, each Borrower agrees, as a separate obligationand notwithstanding any such judgment, to indemnify the Administrative Agent orthe Person to whom such obligation was owing against such loss.

###  

### (e)           Upon any ForeignSubsidiary becoming a Foreign Subsidiary Borrower in accordance with Section 9.08(g),such Foreign Subsidiary Borrower hereby agrees to irrevocably andunconditionally appoint an agent for service of process located in The City ofNew York (the “New York Process Agent”), reasonably satisfactory tothe Administrative Agent, as its agent to receive on behalf of such ForeignSubsidiary Borrower and its property service of copies of the summons andcomplaint and any other process which may be served in any action or proceedingin any such New York State or Federal court described in paragraph(a) of this subsection and agrees promptly to appoint a successorNew York Process Agent in The City of New York (which successorNew York Process Agent shall accept such appointment in a writing reasonablysatisfactory to the Administrative 

 

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### Agent)prior to the termination for any reason of the appointment of the initialNew York Process Agent.  In any suchaction or proceeding in such New York State or Federal court, such servicemay be made on such Foreign Subsidiary Borrower by delivering a copy of suchprocess to such Foreign Subsidiary Borrower in care of the New YorkProcess Agent at the New York Process Agent’s address and by depositing acopy of such process in the mails by certified or registered air mail,addressed to such Foreign Subsidiary Borrower at its address specified in Section 9.01with (if applicable) a copy to the Parent Borrower (such service to beeffective upon such receipt by the New York Process Agent and thedepositing of such process in the mails as aforesaid).  Each of the Foreign Subsidiary Borrowershereby irrevocably and unconditionally authorizes and directs the New YorkProcess Agent to accept such service on its behalf. As an alternate method ofservice, each of the Foreign Subsidiary Borrowers irrevocably and unconditionallyconsents to the service of any and all process in any such action or proceedingin such New York State or Federal court by mailing of copies of suchprocess to such Foreign Subsidiary Borrower by certified or registered air mailat its address specified in Section 9.01.  Each of the Foreign Subsidiary Borrowersagrees that, to the fullest extent permitted by applicable law, a finaljudgment in any such action or proceeding shall be conclusive and may be enforcedin other jurisdictions by suit on the judgment or in any other manner providedby law.

###  

### (f)            To the extent thatany Foreign Subsidiary Borrower has or hereafter may acquire any immunity(sovereign or otherwise) from any legal action, suit or proceeding, fromjurisdiction of any court or from set-off or any legal process (whether serviceor notice, attachment prior to judgment, attachment in aid of execution ofjudgment, execution of judgment or otherwise) with respect to itself or any ofits property, such Foreign Subsidiary Borrower hereby irrevocably waives andagrees not to plead or claim such immunity in respect of its obligations underthis Agreement and any Note.

###  

SECTION 9.16.      ***Confidentiality***.  Each of the Administrative Agent, theCollateral Agent, the Arrangers, the Issuing Bank and the Lenders agrees tomaintain the confidentiality of the Information (as defined below), except thatInformation may be disclosed (a) to its and its Affiliates’ (other thanExcluded Parties (as defined below)) trustees, officers, directors, employeesand agents, including accountants, legal counsel and other advisors (it beingunderstood that the Persons to whom such disclosure is made will be informed ofthe confidential nature of such Information and instructed to keep suchInformation confidential) in connection with the transactions contemplated orpermitted hereby, (b) to the extent requested by any GovernmentalAuthority having jurisdiction over such Person (including any GovernmentalAuthority regulating any Lender or its Affiliates), (c) to the extentrequired by applicable laws or regulations or by any subpoena or similar legalprocess (provided, that the Administrative Agent, the Collateral Agent,such Arranger, such Issuing Bank or such Lender that discloses any Informationpursuant to this clause (c) shall provide the Parent Borrowerwith prompt notice of such disclosure to the extent permitted by applicablelaw), (d) to the extent reasonably necessary in connection with theexercise of any remedies hereunder or under the other Loan Documents or anysuit, action or proceeding relating to the enforcement of its rights hereunderor thereunder, (e) subject to an agreement containing provisions at leastas restrictive as those of this Section 9.16 (or as otherwise maybe acceptable to the Parent Borrower), to (i) any actual or prospectiveassignee of or participant in any of its rights or obligations under this Agreementand the other Loan Documents, (ii) any pledgee referred to inSection 9.04(h) or (iii) any actual or prospective counterparty(or its advisors) to any swap or derivative transaction relating to theBorrowers, any subsidiary or any Affiliate thereof or any of their respectiveobligations, (f) with the written consent of the Parent Borrower,(g) to any Rating Agency when required by it (it being understood that,prior to any such disclosure, such Rating Agency shall undertake to preservethe confidentiality of any Information relating to the Loan Parties received byit from such Person) or (h) to the extent such Information becomes publiclyavailable other than as a result of a breach of this Section 9.16; providedthat, no such disclosure shall be made by the Administrative Agent, theCollateral Agent, the Arrangers, the Issuing Bank and the Lenders to any of itsaffiliates that are engaged as principals primarily in private equity,mezzanine financing or venture capital, which in the case of Bank of America,N.A. and Banc of America Securities Inc. shall be limited to Bank of AmericaCapital Inc (the “Excluded Parties”). For the purposes of this Section, “Information” shall mean allinformation received from the Parent Borrower or Holdings and related to theBorrowers or their business, other than any such information that is publiclyavailable to the Administrative Agent, the Collateral Agent, any Arranger, anyIssuing Bank or any Lender, other than by reason of disclosure by AdministrativeAgent, the Collateral Agent, any Arranger, any Issuing Bank or any Lender inbreach of this Section 9.16.

 

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SECTION 9.17.      ***No Advisory or Fiduciary Responsibility***.  In connection with all aspects of each transactioncontemplated hereby (including in connection with any amendment, waiver orother modification hereof or of any other Loan Document), the Parent Borroweracknowledges and agrees, andacknowledges its Affiliates’ understanding,****that:  (i) (A) the arranging and otherservices regarding this Agreement provided by the Administrative Agent and theArrangers are arm’s-length commercial transactions between the Parent Borrowerand its****Affiliates, on the one hand, and the AdministrativeAgent and****the Arrangers on the other hand, (B) the ParentBorrower has consulted its own legal, accounting, regulatory and tax advisorsto the extent it has deemed appropriate, and (C) the Parent Borrower iscapable of evaluating, and understands and accepts, the terms, risks andconditions of the transactions contemplated hereby and by the other LoanDocuments; (ii) (A) the Administrative Agent and each Arranger is andhas been acting solely as a principal and, except as expressly agreed inwriting by the relevant parties, has not been, is not, and will not be actingas an advisor, agent or fiduciary for the Parent Borrower or any of its****Affiliates,or any other Person and (B) neither the Administrative Agent nor anyArranger has any obligation to the Parent Borrower or any of its****Affiliateswith respect to the transactions contemplated hereby except those obligationsexpressly set forth herein and in the other Loan Documents; and (iii) theAdministrative Agent and the Arrangers and their respective Affiliates may beengaged in a broad range of transactions that involve interests that differfrom those of the Parent Borrower and its****Affiliates, and neither the AdministrativeAgent nor any Arranger has anyobligation to disclose any of such interests to the Parent Borrower or its****Affiliates.  To the fullest extent permitted by law, theParent Borrower ** **hereby waives and releases anyclaims that it may have against the Administrative Agent and the Arrangers withrespect to any breach or alleged breach of agency or fiduciary duty inconnection with any aspect of any transaction contemplated hereby.

 

SECTION 9.18.      ***Release of Collateral.***  The Lenders irrevocably authorize the Agents(and the Agents agree):

 

(a)           to release any Lien on any propertygranted to or held by the Collateral Agent or the Administrative Agent underany Loan Document (v) in the event of the Foreign SubsidiaryReorganization (as defined below) to the extent that, after giving effect tosuch reorganization, would be excluded from the Collateral pursuant to the LoanDocuments so long as any new property or assets that would be included in theCollateral pursuant to the Loan Documents is pledged substantially concurrentlywith such release, (w) upon the Termination Date (and, concurrentlytherewith, to release all the Loan Parties from their obligations under theLoan Documents (other than those that specifically survive the TerminationDate)), (x) that is sold or to be sold as part of or in connection withany sale permitted hereunder or under any other Loan Document to any Personother than a Loan Party, (y) subject to Section 9.08, ifapproved, authorized or ratified in writing by the Required Lenders, or(z) owned by a Subsidiary Guarantor upon release of such Guarantor fromits obligations under its Guaranty pursuant to clause (c) below;

 

(b)           at the request of the ParentBorrower, to subordinate any Lien on any property granted to or held by theAdministrative Agent under any Loan Document to the holder of any Lien on suchproperty that is permitted by clauses(f), (i) and (u)of the definition of Permitted Liens; and

 

(c)           to release any Subsidiary Guarantorfrom its obligations under any Loan Document to which it is a party if suchPerson ceases to be a Subsidiary as a result of a transaction or designationpermitted hereunder; provided that no such release shall occur if suchGuarantor continues to be a guarantor in respect of the New Senior Notes, anyJunior Financing and any Refinancing Indebtedness in respect thereof unless anduntil such Guarantor is (or is being simultaneously) released from itsguarantee with respect to the New Senior Notes, such Junior Financing and anyRefinancing Indebtedness in respect thereof.

 

Upon request by any Agent at any time, the RequiredLenders will confirm in writing such Agent’s authority to release its interestin particular types or items of property, or to release any SubsidiaryGuarantor from its obligations under the Loan Documents pursuant to this Section 9.18.  In each case as specified in this Section 9.18,the relevant Agent will, at the Parent Borrower’s expense, execute and deliverto the applicable Loan Party such documents as such Loan Party may reasonablyrequest to evidence the release of such item of Collateral from the assignmentand security interest granted under the Loan Documents, or to release such LoanParty from its 

 

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obligations under the Loan Documents, in each case, inaccordance with the terms of the Loan Documents and this Section 9.18.

 

SECTION 9.19.      ***USA PATRIOT Act Notice***.  Each Lender and the Administrative Agent (foritself and not on behalf of any Lender) hereby notifies the Loan Parties thatpursuant to the requirements of the USA PATRIOT Act, it is required to obtain,verify and record information that identifies the Loan Parties, whichinformation includes the name and address of the Loan Parties and otherinformation that will allow such Lender or the Administrative Agent, as applicable,to identify the Loan Parties in accordance with the USA PATRIOT Act.

 

SECTION 9.20.      ***Lender Action***.  Each Lender agrees that it shall not take orinstitute any actions or proceedings, judicial or otherwise, for any right orremedy against any Loan Party or any other obligor under any of the LoanDocuments or any Hedging Obligation (including the exercise of any right ofsetoff, rights on account of any banker’s lien or similar claim or other rightsof self-help), or institute any actions or proceedings, or otherwise commenceany remedial procedures, with respect to any Collateral or any other propertyof any such Loan Party, without the prior written consent of the AdministrativeAgent.  The provision of this Section 9.20are for the sole benefit of the Lenders and shall not afford any right to, orconstitute a defense available to, any Loan Party.

 

SECTION 9.21.      ***Effectiveness of Merger***.  Upon the consummation of the Merger, theCompany shall succeed to all the rights and obligations of Merger Sub underthis Agreement, without any further action by any Person.

 

SECTION 9.22.      ***Obligations of the ForeignSubsidiary Borrowers.***

 

Notwithstanding anything contained herein or in theother Loan Documents to the contrary, none of the Foreign Subsidiary Borrowersshall be liable for any Domestic Obligations, and none of the Collateralpledged by any Foreign Subsidiary Borrower shall secure any DomesticObligations.  In addition, any insuranceproceeds from any Collateral pledged by any Foreign Subsidiary Borrower shallnot be available to secure any Domestic Obligations.

 

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

 
|   | VARIETAL  DISTRIBUTION MERGER SUB, INC. |
|--------|-----------------------------------------|
|   |                                    |
|   |                                    |
|   | By:                                     |   |   |
|   | Name                                    |   |   |
|   | Title:                                  |   |   |
|        |                                         |  |  |  |

 

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|       | BANK  OF AMERICA, N.A.,                              |
|------------|------------------------------------------------------|
|       | as  Administrative Agent and Collateral              |
|       | Agent                                                |
|       |                                                 |
|       |                                                 |
|       | By:                                                  |   |   |
|       | Name                                                 |   |   |
|       | Title:                                               |   |   |
|       |                                                 |
|       |                                                 |
|       | BANK  OF AMERICA, N.A.,                              |
|       | individually  and Swingline Lender and Issuing Bank, |
|       |                                                 |
|       | By:                                                  |   |   |
|       | Name                                                 |   |   |
|       | Title:                                               |   |   |
|       |                                                 |
|       |                                                 |
| ** ** | **[OTHER LENDERS]**                                  |
|            |                                                      |  |  |  |

 

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CDRV INVESTORS, INC. HEREBY ABSOLUTELY, IRREVOCABLY AND UNCONDITIONALLY ASSUMES ALL PAYMENT AND PERFORMANCE OBLIGATION  OF VARIETAL DISTRIBUTION MERGER SUB,INC.  UNDER THE LOAN DOCUMENTS

 
| CDRV  INVESTORS, INC. |
|-----------------------|
|                  |
|                  |
| By:                   |   |   |
| Name:                 |   |   |
| Title:                |   |   |
|                       |  |  |  |  |

 

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