exv10w32






Exhibit 10.32


EXECUTION COPY




AMENDED AND RESTATED CREDIT AGREEMENT,




dated as of December 10, 2009,



among



HANESBRANDS INC.,

as the Borrower,



VARIOUS FINANCIAL INSTITUTIONS AND

OTHER PERSONS FROM TIME TO TIME

PARTY TO THIS AGREEMENT

as the Lenders,



BARCLAYS BANK PLC and GOLDMAN SACHS CREDIT PARTNERS L.P.

as the Co-Documentation Agents,



BANK OF AMERICA, N.A. and HSBC SECURITIES (USA) INC.

as the Co-Syndication Agents,



and



JPMORGAN CHASE BANK, N.A.,

as the Administrative Agent and the Collateral Agent

 





J.P. MORGAN SECURITIES INC.,




BANC OF AMERICA SECURITIES LLC,



HSBC SECURITIES (USA) INC.,



and



BARCLAYS CAPITAL,




as Joint Lead Arrangers and Joint Bookrunners











 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	Table of Contents
	 	 	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	SECTION 1.1 Defined Terms
	 	 	1	 
	SECTION 1.2 Use of Defined Terms
	 	 	32	 
	SECTION 1.3 Cross-References
	 	 	32	 
	SECTION 1.4 Accounting and Financial Determinations
	 	 	32	 
	 
	 	 	 	 
	ARTICLE II COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES, NOTES AND LETTERS OF CREDIT
	 	 	33	 
	SECTION 2.1 Commitments
	 	 	33	 
	SECTION 2.2 Reduction of the Commitment Amounts
	 	 	35	 
	SECTION 2.3 Borrowing Procedures
	 	 	35	 
	SECTION 2.4 Continuation and Conversion Elections
	 	 	37	 
	SECTION 2.5 Funding
	 	 	37	 
	SECTION 2.6 Issuance Procedures
	 	 	37	 
	SECTION 2.7 Register; Notes
	 	 	42	 
	SECTION 2.8 [Reserved]
	 	 	42	 
	SECTION 2.9 Incremental Facilities
	 	 	43	 
	 
	 	 	 	 
	ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
	 	 	44	 
	SECTION 3.1 Repayments and Prepayments; Application
	 	 	44	 
	SECTION 3.2 Interest Provisions
	 	 	47	 
	SECTION 3.3 Fees
	 	 	48	 
	 
	 	 	 	 
	ARTICLE IV CERTAIN LIBO RATE AND OTHER PROVISIONS
	 	 	49	 
	SECTION 4.1 LIBO Rate Lending Unlawful
	 	 	49	 
	SECTION 4.2 Deposits Unavailable
	 	 	49	 
	SECTION 4.3 Increased LIBO Rate Loan Costs, etc
	 	 	50	 
	SECTION 4.4 Funding Losses
	 	 	50	 
	SECTION 4.5 Increased Capital Costs
	 	 	51	 
	SECTION 4.6 Taxes
	 	 	51	 
	SECTION 4.7 Payments, Computations; Proceeds of Collateral, etc
	 	 	54	 
	SECTION 4.8 Sharing of Payments
	 	 	55	 
	SECTION 4.9 Setoff
	 	 	55	 
	SECTION 4.10 Mitigation
	 	 	56	 
	SECTION 4.11 Removal of Lenders
	 	 	56	 
	SECTION 4.12 Limitation on Additional Amounts, etc
	 	 	57	 
	SECTION 4.13 Defaulting Lenders
	 	 	57	 
	 
	 	 	 	 
	ARTICLE V CONDITIONS TO CREDIT EXTENSIONS
	 	 	59	 
	SECTION 5.1 Initial Credit Extension
	 	 	59	 
	SECTION 5.2 All Credit Extensions
	 	 	63	 






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	 	 	Page	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES
	 	 	64	 
	SECTION 6.1 Organization, etc
	 	 	64	 
	SECTION 6.2 Due Authorization, Non-Contravention, etc
	 	 	64	 
	SECTION 6.3 Government Approval, Regulation, etc
	 	 	65	 
	SECTION 6.4 Validity, etc
	 	 	65	 
	SECTION 6.5 Financial Information
	 	 	65	 
	SECTION 6.6 No Material Adverse Change
	 	 	65	 
	SECTION 6.7 Litigation, Labor Controversies, etc
	 	 	66	 
	SECTION 6.8 Subsidiaries
	 	 	66	 
	SECTION 6.9 Ownership of Properties
	 	 	66	 
	SECTION 6.10 Taxes
	 	 	66	 
	SECTION 6.11 Pension and Welfare Plans
	 	 	66	 
	SECTION 6.12 Environmental Warranties
	 	 	66	 
	SECTION 6.13 Accuracy of Information
	 	 	68	 
	SECTION 6.14 Regulations U and X
	 	 	68	 
	SECTION 6.15 Compliance with Contracts, Laws, etc
	 	 	68	 
	SECTION 6.16 Solvency
	 	 	68	 
	 
	 	 	 	 
	ARTICLE VII COVENANTS
	 	 	69	 
	SECTION 7.1 Affirmative Covenants
	 	 	69	 
	SECTION 7.2 Negative Covenants
	 	 	75	 
	 
	 	 	 	 
	ARTICLE VIII EVENTS OF DEFAULT
	 	 	89	 
	SECTION 8.1 Listing of Events of Default
	 	 	89	 
	SECTION 8.2 Action if Bankruptcy
	 	 	92	 
	SECTION 8.3 Action if Other Event of Default
	 	 	92	 
	 
	 	 	 	 
	ARTICLE IX
THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT; THE LEAD ARRANGERS, THE SYNDICATION AGENT AND THE DOCUMENTATION AGENT
	 	 	92	 
	SECTION 9.1 Actions
	 	 	92	 
	SECTION 9.2 Funding Reliance, etc
	 	 	93	 
	SECTION 9.3 Exculpation
	 	 	93	 
	SECTION 9.4 Successor
	 	 	93	 
	SECTION 9.5 Loans by JPMorgan Chase Bank
	 	 	94	 
	SECTION 9.6 Credit Decisions
	 	 	94	 
	SECTION 9.7 Copies, etc
	 	 	94	 
	SECTION 9.8 Reliance by Agents
	 	 	94	 
	SECTION 9.9 Defaults
	 	 	95	 
	SECTION 9.10 Lead Arrangers, Syndication Agents and Documentation Agents
	 	 	95	 
	SECTION 9.11 Posting of Approved Electronic Communications
	 	 	95	 
	 
	 	 	 	 
	ARTICLE X MISCELLANEOUS PROVISIONS
	 	 	97	 
	SECTION 10.1 Waivers, Amendments, etc
	 	 	97	 
	SECTION 10.2 Notices; Time
	 	 	98	 
	SECTION 10.3 Payment of Costs and Expenses
	 	 	99	 
	SECTION 10.4 Indemnification
	 	 	100	 






-ii-









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 10.5 Survival
	 	 	101	 
	SECTION 10.6 Severability
	 	 	101	 
	SECTION 10.7 Headings
	 	 	101	 
	SECTION 10.8 Execution in Counterparts, Effectiveness, etc
	 	 	101	 
	SECTION 10.9 Governing Law; Entire Agreement
	 	 	101	 
	SECTION 10.10 Successors and Assigns
	 	 	102	 
	SECTION 10.11 Sale and Transfer of Credit Extensions; Participations in Credit
Extensions; Notes
	 	 	102	 
	SECTION 10.12 Other Transactions
	 	 	104	 
	SECTION 10.13 Forum Selection and Consent to Jurisdiction; Waivers
	 	 	105	 
	SECTION 10.14 Waiver of Jury Trial
	 	 	105	 
	SECTION 10.15 Patriot Act
	 	 	106	 
	SECTION 10.16 Judgment Currency
	 	 	106	 
	SECTION 10.17 No Fiduciary Duty
	 	 	106	 
	SECTION 10.18 Counsel Representation
	 	 	107	 
	SECTION 10.19 Confidentiality
	 	 	107	 
	SECTION 10.20 Resignation of Citi; Appointment of JPMorgan as Successor Swing
Line Lender
	 	 	107	 
	SECTION 10.21 Effect of Amendment and Restatement
	 	 	108	 
	SECTION 10.22 Consent of Required Lenders
	 	 	108	 
	 
	 	 	 	 
	SCHEDULE I  — Disclosure Schedule
	 	 	 	 
	SCHEDULE II  — Percentages; Notice Address
	 	 	 	 
	SCHEDULE III  — Existing Letters of Credit
	 	 	 	 
	EXHIBIT A-1  —  Form of Revolving Note
	 	 	 	 
	EXHIBIT A-2  —  Form of New Term Note
	 	 	 	 
	EXHIBIT A-3  —  Form of Swing Line Note
	 	 	 	 
	EXHIBIT B-1  —  Form of Borrowing Request
	 	 	 	 
	EXHIBIT B-2  —  Form of Issuance Request
	 	 	 	 
	EXHIBIT C  —  Form of Continuation/Conversion Notice
	 	 	 	 
	EXHIBIT D  —  Form of Lender Assignment Agreement
	 	 	 	 
	EXHIBIT E  —  Form of Compliance Certificate
	 	 	 	 
	EXHIBIT F  —  Form of Guaranty
	 	 	 	 
	EXHIBIT G  —  Form of Pledge and Security Agreement
	 	 	 	 
	EXHIBIT H  —  Form of Closing Date Certificate
	 	 	 	 
	EXHIBIT I  —  Form of Solvency Certificate
	 	 	 	 







-iii-











 





AMENDED AND RESTATED CREDIT AGREEMENT




     THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of September 5, 2006, as amended and
restated as of December 10, 2009, is among HANESBRANDS INC., a Maryland corporation (the
“Borrower”), the various financial institutions and other Persons from time to time party
to this Agreement (the “Lenders”), BARCLAYS BANK PLC and GOLDMAN SACHS CREDIT PARTNERS
L.P., as the co-documentation agents (in such capacities, the “Co-Documentation Agents”),
BANK OF AMERICA, N.A. and HSBC SECURITIES (USA) INC., as the co-syndication agents (in such
capacities, the “Co-Syndication Agents”), JPMORGAN CHASE BANK, N.A., as the administrative
agent and the collateral agent (in such capacities, the “Administrative Agent” and
“Collateral Agent”, respectively), and J.P. MORGAN SECURITIES INC., BANC OF AMERICA
SECURITIES LLC, HSBC SECURITIES (USA) INC. and BARCLAYS CAPITAL, the investment banking division of
BARCLAYS BANK PLC, as the joint lead arrangers and joint bookrunners (in such capacities, the
“Lead Arrangers”).



     The parties hereto agree as follows:



ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS




          SECTION 1.1 Defined Terms. The following terms (whether or not underscored) when used
in this Agreement, including its preamble and recitals, shall, except where the context otherwise
requires, have the following meanings (such meanings to be equally applicable to the singular and
plural forms thereof):



     “2014 Senior Note Documents” means the 2014 Senior Notes, the 2014 Senior Note
Indenture and all other agreements, documents and instruments executed and delivered with respect
to the 2014 Senior Notes or the 2014 Senior Note Indenture, as the same may be amended,
supplemented, amended and restated or otherwise modified from time to time in accordance with this
Agreement.



     “2014 Senior Note Indenture” means the Indenture, between the Borrower and the Person
acting as trustee thereunder (the “2014 Senior Notes Trustee”), pursuant to which the 2014
Senior Notes and any supplemental issuance of “senior notes” thereunder are issued, as the same may
be amended, supplemented, amended and restated or otherwise modified from time to time in
accordance with this Agreement.



     “2014 Senior Notes” means the $500,000,000 floating rate senior unsecured notes due
December 15, 2014 issued by the Borrower.



     “2014 Senior Notes Trustee” is defined in the definition of “2014 Senior Note
Indenture”.



     “2016 Senior Note Documents” means the 2016 Senior Notes, the 2016 Senior Note
Indenture and all other agreements, documents and instruments executed and delivered with respect
to the 2016 Senior Notes or the 2016 Senior Note Indenture, as the same may be
amended, supplemented, amended and restated or otherwise modified from time to time in
accordance with this Agreement.



 









 





     “2016 Senior Note Indenture” means the Indenture, between the Borrower and the Person
acting as trustee thereunder (the “2016 Senior Notes Trustee”), pursuant to which the 2016
Senior Notes and any supplemental issuance of “senior notes” thereunder are issued, as the same may
be amended, supplemented, amended and restated or otherwise modified from time to time in
accordance with this Agreement.



     “2016 Senior Notes” means the $500,000,000 8.00% senior unsecured notes due December
15, 2016 issued by the Borrower.



     “2016 Senior Notes Trustee” is defined in the definition of “2016 Senior Note
Indenture”.



     “Acquired Permitted Capital Expenditure Amount” is defined in clause (a) of
Section 7.2.7.



     “Administrative Agent” is defined in the preamble and includes each other
Person appointed as the successor Administrative Agent pursuant to Section 9.4.



     “Affected Lender” is defined in Section 4.11.



     “Affiliate” of any Person means any other Person which, directly or indirectly,
controls, is controlled by or is under common control with such Person. “Control” of a Person
means the power, directly or indirectly, (i) to vote 10% or more of the Capital Securities (on a
fully diluted basis) of such Person having ordinary voting power for the election of directors,
managing members or general partners (as applicable), or (ii) to direct or cause the direction of
the management and policies of such Person (whether by contract or otherwise).



     “Agents” means, as the context may require, the Administrative Agent and the
Collateral Agent and, for the purposes of Section 5.1 only, the Co-Syndication Agents and
the Co-Documentation Agents, collectively, or either of them individually.



     “Agreement” means, on any date, this Amended and Restated Credit Agreement as
originally in effect on the Restatement Effective Date and as thereafter from time to time amended,
supplemented, amended and restated or otherwise modified from time to time and in effect on such
date.



     “Alternate Base Rate” means on any date and with respect to all Base Rate Loans, a
fluctuating rate of interest per annum equal to the highest of (i) the Base Rate in effect on such
day, and (ii) the Federal Funds Rate in effect on such day plus 1/2 of 1.0% and (iii) for a LIBO Rate
Loan, the LIBO Rate (Reserve Adjusted) with a one-month Interest Period commencing on such day (or
if such day is not a Business Day, the immediately preceding Business Day) plus 1.0%.
Changes in the rate of interest on that portion of any Loans maintained as Base Rate Loans will
take effect simultaneously with each change in the Alternate Base Rate. The Administrative Agent
will give notice promptly to the Borrower and the Lenders of changes in the Alternate Base Rate;
provided that, the failure to give such notice shall not affect the Alternate Base Rate in
effect after such change.



     “Applicable Commitment Fee Margin” means the applicable percentage set forth below
corresponding to the relevant Leverage Ratio:



2









 





	 	 	 
	 	 	Applicable Commitment
	Leverage Ratio	 	Fee Margin
	Greater than or equal to 3.75:1.00
	 	0.750%
	 	 	 
	Less than 3.75:1.00
	 	0.500%






          Notwithstanding anything to the contrary set forth in this Agreement (including the then
effective Leverage Ratio), the Applicable Commitment Fee Margin from the Restatement Effective Date
through (and including) the date of delivery of the financial statements for the second full Fiscal
Quarter ending after the Restatement Effective Date shall be 0.75%. The Leverage Ratio used to
compute the Applicable Commitment Fee Margin shall be that set forth in the Compliance Certificate
most recently delivered by the Borrower to the Administrative Agent. Changes in the Applicable
Commitment Fee Margin resulting from a change in the Leverage Ratio shall become effective upon
delivery by the Borrower to the Administrative Agent of a new Compliance Certificate pursuant to
clause (c) of Section 7.1.1. If the Borrower fails to deliver a Compliance
Certificate on or before the date required pursuant to clause (c) of Section 7.1.1,
the Applicable Commitment Fee Margin from and including the day after such required date of
delivery to but not including the date the Borrower delivers to the Administrative Agent a
Compliance Certificate shall equal the highest Applicable Commitment Fee Margin set forth above.



     “Applicable Margin” means the applicable percentage set forth below
corresponding to the relevant Leverage Ratio:



	 	 	 	 	 	 	 	 	 
	 	 	Applicable Margin for New Term Loans
	Leverage Ratio	 	LIBO Rate Loans	 	Base Rate Loans
	Greater than or equal to 2.50:1.00
	 	 	3.25	%	 	 	2.25	%
	Less than 2.50:1:00
	 	 	3.00	%	 	 	2.00	%






	 	 	 	 	 	 	 	 	 
	 	 	Applicable Margin for Revolving Loans
	 	 	(including Swing Line Loans)
	Leverage Ratio	 	LIBO Rate Loans	 	Base Rate Loans
	Greater than or equal to 4.00:1.00
	 	 	4.75	%	 	 	3.75	%
	Less than 4.00:1.00 but greater
than or equal to 3.25:1.00
	 	 	4.50	%	 	 	3.50	%
	Less than 3.25:1.00 but greater
than or equal to 2.50:1.00
	 	 	4.25	%	 	 	3.25	%
	Less than 2.50:1.00
	 	 	4.00	%	 	 	3.00	%





Notwithstanding anything to the contrary set forth in this Agreement (including the then effective
Leverage Ratio), the Applicable Margin for (i) all New Term Loans from the Closing Date through
(and including) the date of delivery of the financial statements for the second full
Fiscal Quarter ending after Restatement Effective Date shall be (A) 3.25%, in the case of LIBO Rate
Loans, and (B) 2.25%, in the case of Base Rate Loans and (ii) all Revolving Loans (including Swing
Line Loans) from the Restatement Effective Date through (and including) the





3









 







date of delivery of the
financial statements for the second full Fiscal Quarter ending after Restatement Effective Date
shall be (A) 4.50%, in the case of LIBO Rate Loans, and (B) 3.50%, in the case of Base Rate Loans.
The Leverage Ratio used to compute the Applicable Margin shall be the Leverage Ratio set forth in
the Compliance Certificate most recently delivered by the Borrower to the Administrative Agent.
Changes in the Applicable Margin resulting from a change in the Leverage Ratio shall become
effective upon delivery by the Borrower to the Administrative Agent of a new Compliance Certificate
pursuant to clause (c) of Section 7.1.1. If the Borrower fails to deliver a
Compliance Certificate on or before the date required pursuant to clause (c) of Section
7.1.1, the Applicable Margin from and including the day after such required date of delivery to
but not including the date the Borrower delivers to the Administrative Agent a Compliance
Certificate shall equal the highest Applicable Margin set forth above.




     “Applicable Percentage” means, at any time of determination, with respect to a
mandatory prepayment in respect of Excess Cash Flow pursuant to clause (f) of Section
3.1.1, (A) 50.0%, if the Leverage Ratio set forth in the Compliance Certificate most recently
delivered by the Borrower to the Administrative Agent was greater than or equal to 3.50:1.00, (B)
25.0%, if the Leverage Ratio set forth in such Compliance Certificate was less than 3.50:1.00 but
greater than or equal to 3.00:1.00, and (C) 0%, if the Leverage Ratio set forth in such Compliance
Certificate was less than 3.00:1.00.



     “Approved Foreign Bank” is defined in the definition of “Cash Equivalent Investment”.



     “Approved Fund” means any Person (other than a natural Person) that (i) is engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course, and (ii) is administered or managed by a Lender, an Affiliate of a
Lender or a Person or an Affiliate of a Person that administers or manages a Lender.



     “Authorized Officer” means, relative to any Obligor, the chief executive officer,
president, chief financial officer, treasurer, assistant treasurer, secretary, assistant secretary
and those of its other officers, general partners or managing members (as applicable), in each case
whose signatures and incumbency shall have been certified to the Agents, the Lenders and the
Issuers pursuant to Section 5.1.1.



     “Available Retained Excess Cash Flow” means, on any date of determination thereof, an
amount equal to Retained Excess Cash Flow, minus the sum of (i) the amount of such Retained Excess
Cash Flow used to make any Investments pursuant to Section 7.2.5(l) and (p), (ii) the
amount of such Retained Excess Cash Flow used to make Restricted Payments pursuant to Section
7.2.6(e), (iii) the amount of such Retained Excess Cash Flow used to make Capital Expenditures
pursuant to Section 7.2.7 and (iv) the amount of such Retained Excess Cash Flow used to
make Permitted Acquisitions pursuant to the first proviso in Section 7.2.10(b).



     “Base Rate” means, at any time, the rate of interest publicly announced by
JPMorgan Chase Bank as its prime rate in effect at its principal office in New York City.



     “Base Rate Loan” means a Loan denominated in Dollars bearing interest at a fluctuating
rate determined by reference to the Alternate Base Rate.



4









 





     “Borrower” is defined in the preamble.



     “Borrowing” means the Loans of the same type and, in the case of LIBO Rate Loans,
having the same Interest Period made by all Lenders required to make such Loans on the same
Business Day and pursuant to the same Borrowing Request in accordance with Section 2.3.



     “Borrowing Request” means a Loan request and certificate duly executed by an
Authorized Officer of the Borrower substantially in the form of Exhibit B-1 hereto.



     “Business Day” means (i) any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in New York, New York, (ii) relative
to the making, continuing, prepaying or repaying of any LIBO Rate Loans, any day which is a
Business Day described in clause (i) above and on which dealings in Dollars are carried on
in the London interbank eurodollar market and (iii) for purposes of Section 2.1.2 any day
which is neither a Saturday or Sunday nor a legal holiday where the relevant Issuer is located
(and, if such Issuer is located in Hong Kong, excluding any day upon which a Typhoon Number 8
signal or black rainstorm warning is hoisted before 12:00 noon (Hong Kong time)).



     “CapEx Pull Forward Amount” is defined in clause (b) of Section 7.2.7.



     “Capital Expenditures” means, for any period, the aggregate amount of (i) all
expenditures of the Borrower and its Subsidiaries for fixed or capital assets made during such
period which, in accordance with GAAP, would be classified as capital expenditures and (ii)
Capitalized Lease Liabilities incurred by the Borrower and its Subsidiaries during such period;
provided that Capital Expenditures shall not include any such expenditures which constitute
any of the following, without duplication: (a) a Permitted Acquisition, (b) to the extent permitted
by this Agreement, capital expenditures consisting of Net Disposition Proceeds or Net Casualty
Proceeds not otherwise required to be used to repay the Loans and (c) imputed interest capitalized
during such period incurred in connection with Capitalized Lease Liabilities not paid or payable in
cash. For the avoidance of doubt (x) to the extent that any item is classified under clause
(i) of this definition and later classified under clause (ii) of this definition or
could be classified under either clause, it will only be required to be counted once for purposes
hereunder and (y) in the event the Borrower or any Subsidiary owns an asset that was not used and
is now being reused, no portion of the unused asset shall be considered Capital Expenditures
hereunder; provided that any expenditure necessary in order to permit such asset to be
reused shall be included as a Capital Expenditure during the period that such expenditure actually
is made.



     “Capital Securities” means, with respect to any Person, all shares, interests,
participations or other equivalents (however designated, whether voting or non-voting) of such
Person’s capital, whether now outstanding or issued after the Restatement Effective Date;
provided however, any shares, interests, participations or other equivalents
required to be issued in connection with convertible debt shall not be considered “Capital
Securities” until issued.



     “Capitalized Lease Liabilities” means, with respect to any Person, all monetary
obligations of such Person and its Subsidiaries under any leasing or similar arrangement which, in
accordance with GAAP, should be classified as capitalized leases, and for purposes of each Loan
Document the amount of such obligations shall be the capitalized amount thereof,



5









 




determined in
accordance with GAAP, and the stated maturity thereof shall be the date of the last payment of rent
or any other amount due under such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a premium or a penalty; provided,
however, any changes to the treatment or reclassification of operating leases under GAAP or
the interpretation of GAAP that would cause operating leases to be considered capitalized leases
under GAAP shall be ignored as if such treatment or reclassification had never occurred and, for
the avoidance of doubt, operating leases shall not be considered Capitalized Lease Liabilities
hereunder.




     “Cash Collateralize” means, with respect to (i) a Letter of Credit, the deposit of
immediately available funds into a cash collateral account maintained with (or on behalf of) the
Administrative Agent on terms reasonably satisfactory to the Administrative Agent in an amount
equal to the Stated Amount of such Letter of Credit and (ii) OA Payment Obligations, the deposit of
immediately available funds into a cash collateral account maintained with (or on behalf of) the
applicable Open Account Discount Purchaser in an amount equal to the aggregate Dollar amount of
such OA Payment Obligations.



     “Cash Equivalent Investment” means, at any time:




     (a) any direct obligation of (or unconditionally guaranteed by) the United States or a
State thereof (or any agency or political subdivision thereof, to the extent such
obligations are supported by the full faith and credit of the United States or a State
thereof) maturing not more than one year after such time;




     (b) commercial paper maturing not more than 270 days from the date of issue, which is
issued by (i) a corporation (other than an Affiliate of any Obligor) organized under the
laws of any State of the United States or of the District of Columbia and rated A-1 or
higher by S&P or P-1 or higher by Moody’s, or (ii) any Lender (or its holding company);




     (c) any certificate of deposit, time deposit or bankers acceptance, maturing not more
than one year after its date of issuance, which is issued by either (i) any bank organized
under the laws of the United States (or any State thereof) and which has (A) a credit rating
of A2 or higher from Moody’s or A or higher from S&P and (B) a combined capital and surplus
greater than $500,000,000, or (ii) any Lender;




     (d) any repurchase agreement having a term of 30 days or less entered into with any
Lender or any commercial banking institution satisfying the criteria set forth in clause
(c)(i) which (i) is secured by a fully perfected security interest in any obligation of
the type described in clause (a), and (ii) has a market value at the time such
repurchase agreement is entered into of not less than 100% of the repurchase obligation of
such commercial banking institution thereunder;




     (e) with respect to any Foreign Subsidiary, non-Dollar denominated (i) certificates of
deposit of, bankers acceptances of, or time deposits with, any commercial bank which is
organized and existing under the laws of the country in which such Person maintains its
chief executive office or principal place of business or is



6









 






organized provided such country
is a member of the Organization for Economic Cooperation and Development, and which has a
short-term commercial paper rating from S&P of at least “A-1” or the equivalent thereof or
from Moody’s of at least “P-1” or the equivalent thereof (any such bank being an
“Approved Foreign Bank”) and maturing within one year of the date of acquisition and
(ii) equivalents of demand deposit accounts which are maintained with an Approved Foreign
Bank; and




     (f) readily marketable obligations issued or directly and fully guaranteed or insured
by the government or any agency or instrumentality of any member nation of the European
Union whose legal tender is the Euro and which are denominated in Euros or any other foreign
currency comparable in credit quality and tenor to those referred to above and customarily
used by corporations for cash management purposes in any jurisdiction outside the United
States to the extent reasonably required in connection with any business conducted by any
Foreign Subsidiary organized in such jurisdiction, having (i) one of the three highest
ratings from either Moody’s or S&P and (ii) maturities of not more than one year from the
date of acquisition thereof; provided that the full faith and credit of any such
member nation of the European Union is pledged in support thereof.



     “Cash Management Obligations” means, with respect to the Borrower or any of its
Subsidiaries, any direct or indirect liability, contingent or otherwise, of such Person in respect
of cash management services (including treasury, depository, overdraft (daylight and temporary),
credit or debit card, electronic funds transfer and other cash management arrangements) provided
after the Restatement Effective Date by a Person who is (or was at the time such Cash Management
Obligations were incurred) the Administrative Agent, any Lender or any Affiliate thereof, including
obligations for the payment of fees, interest, charges, expenses, attorneys’ fees and disbursements
in connection therewith to the extent provided for in the documents evidencing such cash management
services.



     “Cash Restructuring Charges” is defined in the definition of “EBITDA.”



     “Casualty Event” means the damage, destruction or condemnation, as the case may be, of
property of any Person or any of its Subsidiaries.



     “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended.



     “CERCLIS” means the Comprehensive Environmental Response Compensation Liability
Information System List.



     “Change in Control” means




     (a) any person or group (within the meaning of Sections 13(d) and 14(d) under the
Exchange Act) shall become the ultimate “beneficial owner” (as defined in Rules 13d-3 and
13d-5 under the Exchange Act), directly or indirectly, of Capital
Securities representing more than 35% of the Capital Securities of the Borrower on a
fully diluted basis;



7









 






     (b) during any period of 24 consecutive months, individuals who at the beginning of
such period constituted the Board of Directors of the Borrower (together with any new
directors whose election to such Board or whose nomination for election by the stockholders
of the Borrower was approved by a vote of a majority of the directors then still in office
who were either directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to constitute a majority of
the Board of Directors of the Borrower then in office; or




     (c) the occurrence of any “Change of Control” (or similar term) under (and as defined
in) any 2014 Senior Note Document or 2016 Senior Note Document.



     “Citi” means, as the context may require, Citicorp USA, Inc. and Citibank, N.A.,
collectively, or either of them, individually.



     “Closing Date Certificate” means the closing date certificate executed and delivered
by an Authorized Officer of the Borrower substantially in the form of Exhibit H hereto.



     “Code” means the Internal Revenue Code of 1986, and the regulations thereunder, in
each case as amended, reformed or otherwise modified from time to time.



     “Co-Documentation Agents” is defined in the preamble.



     “Collateral Agent” is defined in the preamble and includes each other Person
appointed as successor Collateral Agent pursuant to Section 9.4.



     “Commercial Letter of Credit” means any Letter of Credit issued for the purpose of
providing the primary payment mechanism in connection with the purchase of any materials, goods or
services by the Borrower or any Subsidiary in the ordinary course of business of the Borrower or
such Subsidiary.



     “Commitment” means, as the context may require, the New Term Loan Commitment, the
Revolving Loan Commitment, the Letter of Credit Commitment or the Swing Line Loan Commitment.



     “Commitment Amount” means, as the context may require, the New Term Loan Commitment
Amount, the Revolving Loan Commitment Amount, the Letter of Credit Commitment Amount or the Swing
Line Loan Commitment Amount.



     “Commitment Termination Date” means, as the context may require, the New Term Loan
Commitment Termination Date or the Revolving Loan Commitment Termination Date.



     “Commitment Termination Event” means




     (a) the occurrence of any Event of Default with respect to the Borrower described in
clauses (a) through (d) of Section 8.1.9; or




     (b) the occurrence and continuance of any other Event of Default and either (i) the
declaration of all or any portion of the Loans to be due and payable pursuant to



8









 






Section
8.3, or (ii) the giving of notice by the Administrative Agent, acting at the direction
of the Required Lenders, to the Borrower that the Commitments have been terminated.



     “Communications” is defined in clause (a) of Section 9.11.



     “Compliance Certificate” means a certificate duly completed and executed by an
Authorized Officer of the Borrower, substantially in the form of Exhibit E hereto.



     “Contingent Liability” means any agreement, undertaking or arrangement by which any
Person guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or
indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to, or
otherwise to invest in, a debtor, or otherwise to assure a creditor against loss) the Indebtedness
of any other Person (other than by endorsements of instruments in the course of collection), or
guarantees the payment of dividends or other distributions upon the Capital Securities of any other
Person. The amount of any Person’s obligation under any Contingent Liability shall (subject to any
limitation with respect thereto) be deemed to be the outstanding principal amount of the debt,
obligation or other liability guaranteed thereby.



     “Continuation/Conversion Notice” means a notice of continuation or conversion and
certificate duly executed by an Authorized Officer of the Borrower, substantially in the form of
Exhibit C hereto.



     “Controlled Group” means all members of a controlled group of corporations and all
members of a controlled group of trades or businesses (whether or not incorporated) under common
control which, together with the Borrower, are treated as a single employer under Section 414(b) or
414(c) of the Code or Section 4001 of ERISA.



     “Copyright Security Agreement” means any Copyright Security Agreement executed and
delivered by any Obligor in substantially the form of Exhibit C to the Security Agreement, as
amended, supplemented, amended and restated or otherwise modified from time to time.



     “Co-Syndication Agents” is defined in the preamble.



     “Credit Extension” means, as the context may require,




     (a) the making of a Loan by a Lender; or




     (b) the issuance of any Letter of Credit, any amendment to or modification of any
Letter of Credit that increases the face amount thereof, or the extension of any Stated
Expiry Date of any existing Letter of Credit, by an Issuer.



     “Default” means any Event of Default or any condition, occurrence or event which,
after notice or lapse of time relating to any cure period or both, would constitute an Event of
Default.



     “Defaulting Lender” means any Lender that has (a) failed to fund any portion of its
Loans or participations in Letters of Credit or Swing Line Loans within three Business Days of the
date required to be funded by it hereunder, (b) notified the Borrower, the Administrative



9









 




Agent,
the Issuers, the Swing Line Lender or any Lender in writing that it does not intend to comply with
any of its funding obligations under this Agreement or has made a public statement to the effect
that it does not intend to comply with its funding obligations under this Agreement or under other
agreements in which it commits to extend credit, (c) failed, within three Business Days after
written request by the Administrative Agent, to confirm that it will comply with the terms of this
Agreement relating to its obligations to fund prospective Loans and participations in then
outstanding Letters of Credit and Swing Line Loans, (d) otherwise failed to pay over to the
Administrative Agent or any other Lender any other amount (other than any other amount that is de
minimis) required to be paid by it hereunder within three Business Days of the date when due,
unless the subject of a good faith dispute, or (e) (i) become or is insolvent or has a parent
company that has become or is insolvent or (ii) become the subject of a bankruptcy or insolvency
proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken
any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such
proceeding or appointment or has a parent company that has become the subject of a bankruptcy or
insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it,
or has taken any action in furtherance of, or indicating its consent to, approval of or
acquiescence in any such proceeding or appointment; provided that a Lender shall not be a
Defaulting Lender solely by virtue of the ownership or acquisition by a Governmental Authority or
an instrumentality thereof of any equity interest in such Lender or a parent company thereof.




     “Disbursement” is defined in Section 2.6.2.



     “Disbursement Date” is defined in Section 2.6.2.



     “Disclosure Schedule” means the Disclosure Schedule attached hereto as Schedule
I, as it may be amended, supplemented, amended and restated or otherwise modified from time to
time by the Borrower with the written consent of, in the case of non-material modification, the
Administrative Agent and, in the case of material modifications the Required Lenders.



     “Disposition” (or similar words such as “Dispose”) means any sale, transfer,
lease (as lessor), contribution or other conveyance (including by way of merger) of, or the
granting of options, warrants or other rights to, any of the Borrower’s or its Subsidiaries’ assets
(including accounts receivable and Capital Securities of Subsidiaries) to any other Person in a
single transaction or series of transactions other than (i) to another Obligor, (ii) by a Foreign
Subsidiary to any other Foreign Subsidiary, (iii) by a Receivables Subsidiary to any other Person
or (iv) customary derivatives issued in connection with the issuance of convertible debt.



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



     “EBITDA” means, for any applicable period, the sum of




     (a) Net Income, plus




     (b) to the extent deducted in determining Net Income, the sum of (i) amounts
attributable to amortization (including amortization of goodwill and other intangible
assets), (ii) Federal, state, local and foreign income withholding, franchise, state
single business unitary and similar Tax expense, (iii) Interest Expense, (iv) depreciation
of assets, (v) all non-cash charges, including all non-cash charges associated with



10









 






announced restructurings, whether announced previously or in the future (such non-cash
restructuring charges being “Non-Cash Restructuring Charges”), (vi) net cash charges
associated with or related to any contemplated restructurings (such cost restructuring
charges being “Cash Restructuring Charges”) in an aggregate amount not to exceed
$120,000,000 since September 5, 2006, (vii) all amounts in respect of extraordinary losses,
(viii) non-cash compensation expense, or other non-cash expenses or charges, arising from
the sale of stock, the granting of stock options, the granting of stock appreciation rights
and similar arrangements (including any repricing, amendment, modification, substitution or
change of any such stock, stock option, stock appreciation rights or similar arrangements),
(ix) any financial advisory fees, accounting fees, legal fees and other similar advisory and
consulting fees, cash charges in respect of strategic market reviews, management bonuses and
early retirement of Indebtedness, and related out-of-pocket expenses incurred by the
Borrower or any of its Subsidiaries as a result of the Transaction, including fees and
expenses in connection with the issuance, redemption or exchange of the 2016 Senior Notes,
all determined in accordance with GAAP, (x) non-cash or unrealized losses on agreements with
respect to Hedging Obligations and (xi) to the extent non-recurring and not capitalized, any
financial advisory fees, accounting fees, legal fees and similar advisory and consulting
fees and related costs and expenses of the Borrower and its Subsidiaries incurred as a
result of Permitted Acquisitions, Investments, Restricted Payments, Dispositions permitted
hereunder and the issuance of Capital Securities or Indebtedness permitted hereunder, all
determined in accordance with GAAP and in each case eliminating any increase or decrease in
income resulting from non-cash accounting adjustments made in connection with the related
Permitted Acquisition or Dispositions, (xii) losses on agreements with respect to Hedging
Obligations and any related tax losses and any costs, fees, and expenses related to the
termination thereof, in each case incurred in connection with or as a result of the
Transaction, (xiii) to the extent the related loss is not added back pursuant to clause
(c), all proceeds of business interruption insurance policies, (xiv) expenses incurred
by the Borrower or any Subsidiary to the extent reimbursed in cash by a third party, and
(xv) extraordinary, unusual or non-recurring cash charges not to exceed $10,000,000 in any
Fiscal Year, minus




     (c) to the extent included in determining such Net Income, the sum of (i) all amounts
in respect of extraordinary gains, (ii) non-cash gains on agreements with respect to Hedging
Obligations, (iii) reversals (in whole or in part) of any restructuring charges previously
treated as Non-Cash Restructuring Charges in any prior period, (iv) gains on agreements with
respect to Hedging Obligations and any related tax gains, in each case incurred in
connection with or as a result of the Transaction and (v) non-cash items increasing such Net
Income for such period, other than (A) the accrual of revenue consistent with past practice
and (B) the reversal in such period of an accrual of, or cash reserve for, cash expenses in
a prior period, to the extent such accrual or reserve did not increase EBITDA in a prior
period.



     “Eligible Assignee” means (i) in the case of an assignment of a New Term Loan, (A) a
Lender, (B) an Affiliate of a Lender, (C) an Approved Fund or (D) any other Person (other than an
Ineligible Assignee), and (ii) in the case of any assignment of the Revolving Loan Commitment or
Revolving Loans, (A) a Lender, (B) an Affiliate of a Lender or (C) any other



11









 




Person (other than an
Ineligible Assignee) approved by the Borrower (such approval of the Borrower not to be unreasonably
withheld or delayed) unless an Event of Default has occurred and is continuing.




     “EMU” means Economic and Monetary Union as contemplated in the Treaty on European
Union.



     “EMU Legislation” means legislative measures of the European Council (including
European Council regulations) for the introduction of, changeover to or operation of a single or
unified European currency (whether known as the Euro or otherwise), being in part the
implementation of the third stage of EMU.



     “Environmental Laws” means all applicable federal, state or local statutes, laws,
ordinances, codes, rules, regulations and legally binding guidelines (including consent decrees and
administrative orders) relating to protection of public health and safety from environmental
hazards and protection of the environment.



     “Equity Equivalents” means with respect to any Person any rights, warrants, options,
convertible securities, exchangeable securities, indebtedness or other rights, in each case
exercisable for or convertible or exchangeable into, directly or indirectly, Capital Securities of
such Person or securities exercisable for or convertible or exchangeable into Capital Securities of
such Person, whether at the time of issuance or upon the passage of time or the occurrence of some
future event.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any
successor statute thereto of similar import, together with the regulations thereunder, in each case
as in effect from time to time. References to Sections of ERISA also refer to any successor
Sections thereto.



     “Euros” means the single currency of Participating Member States of the European
Union.



     “Event of Default” is defined in Section 8.1.



     “Excess Cash Flow” means, for any Fiscal Year, the excess (if any), of




     (a) EBITDA for such Fiscal Year




minus




     (b) the sum (for such Fiscal Year) of (i) Interest Expense actually paid in cash by the
Borrower and its Subsidiaries, (ii) scheduled principal repayments with respect to the
permanent reduction of Indebtedness, to the extent actually made, (iii) all Federal, state,
local and foreign income withholding, franchise, state single business unitary and
similar Taxes actually paid in cash or payable (only to the extent related to Taxes
associated with such Fiscal Year) by the Borrower and its Subsidiaries, (iv) Capital
Expenditures to the extent (x) actually made by the Borrower and its Subsidiaries in such
Fiscal Year or (y) committed to be made by the Borrower and its Subsidiaries and that are



12









 






permitted to be carried forward to the next succeeding Fiscal Year pursuant to Section
7.2.7; provided that the amounts deducted from Excess Cash Flow pursuant to
preceding clause (y) shall not thereafter be deducted in the determination of Excess
Cash Flow for the Fiscal Year during which such payments were actually made, (v) the portion
of the purchase price paid in cash with respect to Permitted Acquisitions to the extent such
Permitted Acquisition was made in connection with the Borrower’s offshore migration of its
supply chain, (vi) to the extent permitted to be included in the calculation of EBITDA for
such Fiscal Year, the amount of Cash Restructuring Charges actually so included in such
calculation and (vii) without duplication to any amounts deducted in preceding clauses
(i) through (vi), all items added back to EBITDA pursuant to clause (b) of the
definition thereof that represent amounts actually paid in cash.



     “Excluded Properties” means the “Commerce” property, “Canterbury” property and
“Northridge” property (each as identified under the “Facility Name” column of the table set forth
in Item 6.9(b) of the Disclosure Schedule).



     “Exemption Certificate” is defined in clause (e) of Section 4.6.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “Existing Letters of Credit” means each of the Letters of Credit issued by an Issuer
and outstanding on the Restatement Effective Date, as listed on Schedule III hereto.



     “Federal Funds Rate” means, for any period, a fluctuating interest rate per annum
equal for each day during such period to (i) the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or (ii) if such rate is not so published for any day which
is a Business Day, the average of the quotations for such day on such transactions received by the
Administrative Agent from three federal funds brokers of recognized standing selected by it.



     “Filing Agent” is defined in Section 5.1.11.



     “Filing Statements” is defined in Section 5.1.11.



     “Fiscal Quarter” means a quarter ending on the Saturday nearest to the last day of
March, June, September or December.



     “Fiscal Year” means any period of fifty-two or fifty-three consecutive calendar weeks
ending on the Saturday nearest to December 31; references to a Fiscal Year with a number
corresponding to any calendar year (e.g., the “2009 Fiscal Year”) refer to the Fiscal Year
ending on the Saturday nearest to December 31 of such calendar year.



     “Foreign Pledge Agreement” means any supplemental pledge agreement governed by the
laws of a jurisdiction other than the United States or a State thereof executed and delivered by
the Borrower or any of its Subsidiaries pursuant to the terms of this Agreement, in form and
substance reasonably satisfactory to the Lead Arrangers, as necessary under the laws of



13









 




organization or incorporation of a Foreign Subsidiary to further protect or perfect the Lien on and
security interest in any Capital Securities issued by such Foreign Subsidiary constituting
Collateral (as defined in the Security Agreement), including any Foreign Pledge Agreement as
amended in accordance with Section 7.1.11.




     “Foreign Subsidiary” means any Subsidiary that is not a U.S. Subsidiary or a
Receivables Subsidiary.



     “Foreign Working Capital Lender” means each Person that is (or at the time such
Indebtedness was incurred, was) a Lender or an Affiliate of a Lender to whom a Foreign Subsidiary
owes Indebtedness that was permitted to be incurred pursuant to clause (n) of Section
7.2.2.



     “F.R.S. Board” means the Board of Governors of the Federal Reserve System or any
successor thereto.



     “GAAP” is defined in Section 1.4.



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



     “Guaranty” means the amended and restated guaranty executed and delivered by an
Authorized Officer of the Borrower and each U.S. Subsidiary pursuant to the terms of this
Agreement, substantially in the form of Exhibit F hereto, as amended, supplemented, amended
and restated or otherwise modified from time to time.



     “Hazardous Material” means (i) any “hazardous substance”, as defined by CERCLA, (ii)
any “hazardous waste”, as defined by the Resource Conservation and Recovery Act, as amended, or
(iii) any pollutant or contaminant or hazardous, dangerous or toxic chemical, material or substance
(including any petroleum product) within the meaning of any other Environmental Laws.



     “Hedging Obligations” means, with respect to any Person, all liabilities of such
Person under foreign exchange contracts, commodity hedging agreements, currency exchange
agreements, interest rate swap agreements, interest rate cap agreements and interest rate collar
agreements, and all other agreements or arrangements designed to protect such Person against
fluctuations in interest rates, currency exchange rates or commodity prices.



     “herein”, “hereof”, “hereto”, “hereunder” and similar terms
contained in any Loan Document refer to such Loan Document as a whole and not to any particular
Section, paragraph or provision of such Loan Document.



     “HSBC” means HSBC Bank USA, National Association, in its individual capacity, and any
successor thereto by merger, consolidation or otherwise.



14









 





     “Impermissible Qualification” means any qualification or exception to the opinion or
certification of any independent public accountant as to any financial statement of the Borrower
(i) which is of a “going concern” or similar nature, (ii) which relates to the limited scope in any
material respect of examination of matters relevant to such financial statement, or (iii) which
relates to the treatment or classification of any item in such financial statement (excluding
treatment or classification changes which are the result of changes in GAAP or the interpretation
of GAAP) and which, as a condition to its removal, would require an adjustment to such item the
effect of which would be to cause the Borrower to be in Default.



     “including” and “include” means including without limiting the generality of
any description preceding such term, and, for purposes of each Loan Document, the parties hereto
agree that the rule of ejusdem generis shall not be applicable to limit a general statement, which
is followed by or referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.



     “Increased Amount Date” is defined in Section 2.9.



     “Incremental Loan Commitment” is defined in Section 2.9.



     “Incremental Revolving Commitments” is defined in Section 2.9.



     “Incremental Revolving Lender” is defined in Section 2.9.



     “Incremental Revolving Loan” is defined in Section 2.9.



     “Incremental Term Loan Lender” is defined in Section 2.9.



     “Incremental Term Loan” is defined in Section 2.9.



     “Incremental Term Loan Commitment” is defined in Section 2.9.



     “Indebtedness” of any Person means, (i) all obligations of such Person for borrowed
money or advances and all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, (ii) all monetary obligations, contingent or otherwise, relative to the face
amount of all letters of credit, whether or not drawn, and banker’s acceptances issued for the
account of such Person, (iii) all Capitalized Lease Liabilities of such Person, (iv) for purposes
of Section 8.1.5 only, net Hedging Obligations of such Person, (v) whether or not so
included as liabilities in accordance with GAAP, all obligations of such Person to pay the deferred
purchase price of property or services (excluding trade accounts payable and accrued expenses in
the ordinary course of business which are not overdue for a period of more than 90 days or, if
overdue for more than 90 days, as to which a dispute exists and adequate reserves in conformity
with GAAP have been established on the books of such Person), (vi) indebtedness secured by (or for
which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured
by) a Lien on property owned or being acquired by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not such
indebtedness shall have been assumed by such Person or is limited in recourse
(provided that in the event such indebtedness is limited in recourse solely to the property
subject to such Lien, for the purposes of this Agreement the amount of such indebtedness shall not
exceed the greater of



15









 




the book value or the fair market value (as determined in good faith by the
Borrower’s board of directors) of the property subject to such Lien), (vii) monetary obligations
arising under Synthetic Leases, (viii) the full outstanding balance of trade receivables, notes or
other instruments sold with full recourse (and the portion thereof subject to potential recourse,
if sold with limited recourse), other than in any such case any thereof sold solely for purposes of
collection of delinquent accounts and other than in connection with any Permitted Securitization or
any Permitted Factoring Facility, (ix) all obligations (other than intercompany obligations) of
such Person pursuant to any Permitted Securitization (other than Standard Securitization
Undertakings) or any Permitted Factoring Facility, and (x) all Contingent Liabilities of such
Person in respect of any of the foregoing. The Indebtedness of any Person shall include the
Indebtedness of any other Person (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefore as a result of such Person’s ownership
interest in or other relationship with such Person, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefore.




     “Indemnified Liabilities” is defined in Section 10.4.



     “Indemnified Parties” is defined in Section 10.4.



     “Ineligible Assignee” means a natural Person, the Borrower, any Affiliate of the
Borrower or any other Person taking direction from, or working in concert with, the Borrower or any
of the Borrower’s Affiliates.



     “Information” is defined in Section 10.19.



     “Interest Coverage Ratio” means, as of the last day of any Fiscal Quarter, the ratio
computed for the period consisting of such Fiscal Quarter and each of the three immediately
preceding Fiscal Quarters of:




(a) EBITDA (for all such Fiscal Quarters)




to




(b) the sum (for all such Fiscal Quarters) of Interest Expense.



     “Interest Expense” means, for any applicable period, the aggregate interest expense
(both, without duplication, when accrued or paid and net of interest income paid during such period
to the Borrower and its Subsidiaries) of the Borrower and its Subsidiaries for such applicable
period, including the portion of any payments made in respect of Capitalized Lease Liabilities
allocable to interest expense; provided that the term “Interest Expense” shall not include
any interest expense attributable to a Permitted Factoring Facility.



     “Interest Period” means, relative to any LIBO Rate Loan, the period beginning on (and
including) the date on which such LIBO Rate Loan is made or continued as, or converted into, a LIBO
Rate Loan pursuant to Sections 2.3 or 2.4 and shall end on (but exclude) the day
which
numerically corresponds to such date one, two, three or six months and, if agreed by all
affected Lenders, one or two weeks or 9 or 12 months thereafter (or, if any such month has no




16











 




numerically corresponding day, on the last Business Day of such month), as the Borrower may select
in its relevant notice pursuant to Sections 2.3 or 2.4; provided that,





     (a) the Borrower shall not be permitted to select Interest Periods to be in effect at
any one time which have expiration dates occurring on more than twelve different dates; and




     (b) if such Interest Period would otherwise end on a day which is not a Business Day,
such Interest Period shall end on the next following Business Day (unless such next
following Business Day is the first Business Day of a calendar month, in which case such
Interest Period shall end on the Business Day next preceding such numerically corresponding
day).



     “Investment” means, relative to any Person, (i) any loan, advance or extension of
credit made by such Person to any other Person, including the purchase by such Person of any bonds,
notes, debentures or other debt securities of any other Person, and (ii) any Capital Securities
held by such Person in any other Person. The amount of any Investment shall be the original
principal or capital amount thereof less all returns of principal or equity thereon and shall, if
made by the transfer or exchange of property other than cash, be deemed to have been made in an
original principal or capital amount equal to the fair market value of such property at the time of
such Investment.



     “ISP Rules” is defined in Section 10.9.



     “Issuance Request” means a Letter of Credit request and certificate duly executed by
an Authorized Officer of the Borrower, substantially in the form of Exhibit B-2 hereto, or
in such electronic format as an Issuer and the Administrative Agent in their discretion accept.
Each Issuance Request delivered in an electronic format shall constitute for all purposes of this
Agreement a certification by an Authorized Officer as to the matters set forth in Exhibit
B-2.



     “Issuer” means HSBC or another Lender selected by the Borrower and reasonably
acceptable to the Administrative Agent, in each case, in its capacity as an Issuer of the Letters
of Credit. At the request of HSBC and with the Borrower’s consent (not to be unreasonably withheld
or delayed), another Lender or an Affiliate of HSBC may issue one or more Letters of Credit
hereunder, in which case the term “Issuer” shall include any such Affiliate or other Lender with
respect to Letters of Credit issued by such Affiliate or such Lender.



     “Joinder Agreement” is defined in Section 2.9.



     “Judgment Currency” is defined in Section 10.16.



     “JPMorgan” means JPMorgan Chase Bank, N.A.



     “Lead Arrangers” is defined in the preamble.



     “Lender Assignment Agreement” means an assignment agreement substantially in the form
of Exhibit D hereto.



17









 





     “Lenders” is defined in the preamble.



     “Lender’s Environmental Liability” means any and all losses, liabilities, obligations,
penalties, claims, litigation, demands, defenses, costs, judgments, suits, proceedings, damages
(including consequential damages), disbursements or expenses of any kind or nature whatsoever
(including reasonable attorneys’ fees at trial and appellate levels and experts’ fees and
disbursements and expenses incurred in investigating, defending against or prosecuting any
litigation, claim or proceeding) which may at any time be imposed upon, incurred by or asserted or
awarded against the Administrative Agent, any Lender or any Issuer or any of such Person’s
Affiliates, shareholders, directors, officers, employees, and agents in connection with or arising
from:




     (a) any Hazardous Material on, in, under or affecting all or any portion of any
property of the Borrower or any of its Subsidiaries, the groundwater thereunder, or any
surrounding areas thereof to the extent caused by Releases from the Borrower’s or any of its
Subsidiaries’ or any of their respective predecessors’ properties;




     (b) any misrepresentation, inaccuracy or breach of any warranty, contained or referred
to in Section 6.12;




     (c) any violation or claim of violation by the Borrower or any of its Subsidiaries of
any Environmental Laws; or




     (d) the imposition of any lien for damages caused by or the recovery of any costs for
the cleanup, release or threatened release of Hazardous Material by the Borrower or any of
its Subsidiaries, or in connection with any property owned or formerly owned by the Borrower
or any of its Subsidiaries.



     “Letter of Credit” means a letter of credit that is a Standby Letter of Credit or
Commercial Letter of Credit. For greater certainty Letters of Credit shall include all Existing
Letters of Credit.



     “Letter of Credit Commitment” means an Issuer’s obligation to issue Letters of Credit
pursuant to Section 2.1.2.



     “Letter of Credit Commitment Amount” means, on any date, a maximum amount equal to
$150,000,000, as such amount may be permanently reduced from time to time pursuant to Section
2.2.



     “Letter of Credit Outstandings” means, on any date, an amount equal to the sum of
(i) the then aggregate amount which is undrawn and available under all issued and outstanding
Letters of Credit, and (ii) the then aggregate amount of all unpaid and outstanding Reimbursement
Obligations.



     “Leverage Ratio” means, as of the last day of any Fiscal Quarter, the ratio of



18









 






     (a) Total Debt outstanding on the last day of such Fiscal Quarter



     to




     (b) EBITDA computed for the period consisting of such Fiscal Quarter and each of the
three immediately preceding Fiscal Quarters.



     “LIBO Rate” means, relative to any Interest Period pertaining to a LIBO Rate Loan, the
rate per annum determined on the basis of the rate for deposits in Dollars for a period equal to
such Interest Period commencing on the first day of such Interest Period appearing on the Reuters
Screen LIBOR01 Page as of 11:00 A.M., London time, two Business Days prior to the beginning of such
Interest Period. In the event that such rate does not appear on such page (or otherwise on such
screen), the “LIBO Rate” shall be determined by reference to such other comparable publicly
available service for displaying eurodollar rates as may be selected by the Administrative Agent
or, in the absence of such availability, by reference to the rate at which the Administrative Agent
is offered Dollar deposits at or about 11:00 A.M., New York City time, two Business Days prior to
the beginning of such Interest Period in the interbank eurodollar market where its eurodollar and
foreign currency and exchange operations are then being conducted for delivery on the first day of
such Interest Period for the number of days comprised therein. Notwithstanding the foregoing, with
respect to any New Term Loan, the LIBO Rate shall not be less than 2.00% per annum.



     “LIBO Rate Loan” means a Loan bearing interest, at all times during an Interest Period
applicable to such Loan, at a rate of interest determined by reference to the LIBO Rate (Reserve
Adjusted).



     “LIBO Rate (Reserve Adjusted)” means, relative to any Loan to be made, continued or
maintained as, or converted into, a LIBO Rate Loan for any Interest Period, a rate per annum
determined pursuant to the following formula:



	 	 	 	 	 	 	 	 	 
	 	 	LIBO Rate	 	=	 	LIBO Rate	 	 	 	 
	 
	 	 (Reserve Adjusted)
	 	 	 	 1.00 — LIBOR Reserve Percentage





The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate Loans will be determined by
the Administrative Agent on the basis of the LIBOR Reserve Percentage in effect, and the applicable
rates furnished to and received by the Administrative Agent, two Business Days before the first day
of such Interest Period.




     “LIBOR Reserve Percentage” means, relative to any Interest Period for LIBO Rate Loans,
the reserve percentage (expressed as a decimal) equal to the maximum aggregate reserve requirements
(including all basic, emergency, supplemental, marginal and other reserves and taking into account
any transitional adjustments or other scheduled changes in reserve requirements) specified under
regulations issued from time to time by the F.R.S. Board and then applicable to assets or
liabilities consisting of or including “Eurocurrency Liabilities”, as currently defined in
Regulation D of the F.R.S. Board, having a term approximately equal or comparable to such Interest
Period.



19









 





     “Lien” means any security interest, mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or otherwise), charge against or interest in
property, or other priority or preferential arrangement of any kind or nature whatsoever.



     “Loan Documents” means, collectively, this Agreement, the Notes, the Letters of
Credit, the Open Account Paying Agreements, each Rate Protection Agreement, the Security Agreement,
each Mortgage, each Foreign Pledge Agreement, each other agreement pursuant to which the Collateral
Agent is granted by the Borrower or its Subsidiaries a Lien to secure the Obligations, and the
Guaranty; provided, however, that for purposes of the definition of “Material
Adverse Effect” below, references therein to any “Loan Document(s)” shall not include any Foreign
Pledge Agreement.



     “Loans” means, as the context may require, a Revolving Loan, a New Term Loan or a
Swing Line Loan of any type.



     “Material Adverse Effect” means any event, development or circumstance that has had or
could reasonably be expected to have a material adverse effect on (i) the business, financial
condition, operations, performance, or assets of the Borrower and its Subsidiaries (other than any
Receivables Subsidiary) taken as a whole, (ii) the validity or enforceability of any of the Loan
Documents or the rights and remedies of any Secured Party under any Loan Document or (iii) the
ability of any Obligor to perform when due its Obligations under any Loan Document.



     “Moody’s” means Moody’s Investors Service, Inc. and its successors.



     “Mortgage” means each mortgage, deed of trust or agreement executed and delivered by
any Obligor in favor of the Administrative Agent for the benefit of the Secured Parties pursuant to
the requirements of this Agreement in form and substance reasonably satisfactory to the Lead
Arrangers, under which a Lien is granted on such real property and fixtures described therein, in
each case as amended in accordance with Section 7.1.11 and as further amended,
supplemented, amended and restated or otherwise modified from time to time.



     “Mortgaged Property” means each parcel of real property set forth on Item 6.9(a) of
the Disclosure Schedule.



     “Net Casualty Proceeds” means, with respect to any Casualty Event, the amount of any
insurance proceeds or condemnation awards received by the Borrower or any of its U.S. Subsidiaries
in connection with such Casualty Event (net of all collection or similar expenses related thereto),
but excluding any proceeds or awards required to be paid to a creditor (other than the Lenders)
which holds a first priority Lien permitted by clause (d) of Section 7.2.3 on the
property which is the subject of such Casualty Event.



     “Net Debt Proceeds” means, with respect to the sale or issuance by the Borrower or any
of its U.S. Subsidiaries (other than a Receivables Subsidiary or a Subsidiary party to a Permitted
Factoring Facility) of any Indebtedness to any other Person after the Restatement Effective Date
pursuant to clause (b)(iii) of Section 7.2.2 or which is not expressly permitted by
Section 7.2.2, the excess of (i) the gross cash proceeds actually received by such Person
from such sale or issuance, over (ii) all arranging or underwriting discounts, fees, costs,
expenses and commissions, and all legal, investment banking, brokerage and accounting and other
professional



20









 




fees, sales commissions and disbursements and other closing costs and expenses actually
incurred in connection with such sale or issuance other than any such fees, discounts, commissions
or disbursements paid to Affiliates of the Borrower or any such Subsidiary in connection therewith.




     “Net Disposition Proceeds” means the gross cash proceeds received by the Borrower or
its U.S. Subsidiaries from any Disposition pursuant to clauses (j) (l), (m)
or (n) of Section 7.2.11 or Section 7.2.15 and any cash payment received in
respect of promissory notes or other non-cash consideration delivered to the Borrower or its U.S.
Subsidiaries in respect thereof, minus the sum of (i) all legal, investment banking,
brokerage, accounting and other professional fees, costs, sales commissions and expenses and other
closing costs, fees and expenses incurred in connection with such Disposition, (ii) all taxes
actually paid or estimated by the Borrower to be payable in cash in connection with such
Disposition, (iii) payments made by the Borrower or its U.S. Subsidiaries to retire Indebtedness
(other than the Credit Extensions) where payment of such Indebtedness is required in connection
with such Disposition and (iv) any liability reserves established by the Borrower or such
Subsidiary in respect of such Disposition in accordance with GAAP; provided that, if the
amount of any estimated taxes pursuant to clause (ii) exceeds the amount of taxes required
to be paid in cash in respect of such Disposition, the aggregate amount of such excess shall
constitute Net Disposition Proceeds and to the extent any such reserves described in clause
(iv) are not fully used at the end of any applicable period for which such reserves were
established, such unused portion of such reserves shall constitute Net Disposition Proceeds.



     “Net Income” means, for any period, the aggregate of all amounts which would be
included as net income on the consolidated financial statements of the Borrower and its
Subsidiaries for such period.



     “New Term Loan Commitment” means, relative to any Lender, such Lender’s obligation (if
any) to make New Term Loans pursuant to Section 2.1.3.



     “New Term Loan Commitment Amount” means, on any date, $750,000,000.



     “New Term Loan Commitment Termination Date” means the earliest of




     (a) December 31, 2009 (if the New Term Loans have not been made on or prior to such
date);




     (b) the Restatement Effective Date (immediately after the making of the New Term Loans
on such date); and




     (c) the date on which any Commitment Termination Event occurs.



               Upon the occurrence of any event described above, the New Term Loan Commitments shall
terminate automatically and without any further action.



     “New Term Loans” is defined in Section 2.1.3.



21









 





     “New Term Note” means a promissory note of the Borrower payable to any Lender, in the
form of Exhibit A-2 hereto (as such promissory note may be amended, endorsed or otherwise
modified from time to time), evidencing the aggregate Indebtedness of the Borrower to such Lender
resulting from outstanding New Term Loans, and also means all other promissory notes accepted from
time to time in substitution therefor or renewal thereof.



     “New Term Percentage” means, relative to any Lender, the applicable percentage
relating to New Term Loans set forth opposite its name on Schedule II hereto under the New
Term Loan Commitment column or set forth in a Lender Assignment Agreement under the New Term Loan
Commitment column, as such percentage may be adjusted from time to time pursuant to Lender
Assignment Agreements executed by such Lender and its assignee Lender and delivered pursuant to
Section 10.11. A Lender shall not have any New Term Loan Commitment if its percentage
under the New Term Loan Commitment column is zero.



     “Non-Cash Restructuring Charges” is defined in the definition of “EBITDA”.



     “Non-Consenting Lender” is defined in Section 4.11.



     “Non-Defaulting Lender” means a Lender other than a Defaulting Lender.



     “Non-Excluded Taxes” means any Taxes other than (i) net income and franchise Taxes
imposed on (or measured by) net income or net profits with respect to any Secured Party by any
Governmental Authority under the laws of which such Secured Party is organized or in which it
maintains its applicable lending office, (ii) any branch profit taxes or any similar taxes imposed
by the United States of America or any other Governmental Authority described in clause
(i), (iii) Other Taxes, and (iv) any United States federal withholding taxes imposed on amounts
payable to any Secured Party at the time such recipient becomes a party to this Agreement (or
designates a new lending office) except to the extent that such Secured Party (or its assignor, if
any) was entitled, at the time of the designation of a new lending office (or assignment), to
receive additional amounts from the Borrower with respect to such withholding taxes pursuant to
Section 4.6(a)(1) or 4.6(d).



     “Non-U.S. Lender” means any Lender that is not a “United States person”, as defined
under Section 7701(a)(30) of the Code.



     “Note” means, as the context may require, a New Term Note, a Revolving Note or a Swing
Line Note.



     “OA Payment Obligations” is defined in the definition of “Open Account Paying
Agreement”.



     “OA Payment Outstandings” means, on any date, the aggregate amount of OA Payment
Obligations owed by the Obligors under all Open Account Paying Agreements.



     “Obligations” means all obligations (monetary or otherwise, whether absolute or
contingent, matured or unmatured) of the Borrower and each other Obligor arising under or in
connection with a Loan Document, including Reimbursement Obligations and OA Payment Obligations and
the principal of and premium, if any, and interest (including interest accruing



22









 




during the pendency of any proceeding of the type described in Section 8.1.9, whether
or not allowed in such proceeding) on the Loans.




     “Obligor” means, as the context may require, the Borrower, each Subsidiary Guarantor
and each other Person (other than a Secured Party) obligated (other than Persons solely consenting
to or acknowledging such document) under any Loan Document.



     “OFAC” is defined in Section 6.15.



     “OID” is defined in Section 2.9.



     “Open Account Discount Agreement” is defined in the definition of “Open Account Paying
Agreement”.



     “Open Account Discount Purchase” means a purchase, made at a discount pursuant to an
Open Account Discount Agreement, by an Open Account Discount Purchaser from an Open Account
Supplier of account receivables in respect of obligations owed by an Obligor.



     “Open Account Discount Purchaser” is defined in the definition of “Open Account Paying
Agreement”.



     “Open Account Paying Agreement” means an open account paying agency agreement
between or among a Lender or any of its Affiliates and an Obligor, as identified as an “Open
Account Paying Agreement” through notice given from each party thereto to the Administrative Agent,
and/or any other agreement or acknowledgment pursuant to which an Obligor has committed to pay such
Lender or its Affiliates the full face amount of any account receivable in respect of obligations
owed by an Obligor (the “OA Payment Obligations”) purchased by such Lender or its
Affiliates (each, an “Open Account Discount Purchaser”) from certain vendors or other
obligees of an Obligor prior to the Revolving Loan Commitment Termination Date (each, an “Open
Account Supplier”) (each agreement pursuant to which such account receivables are purchased
from an Open Account Supplier, an “Open Account Discount Agreement”).



     “Open Account Supplier” is defined in the definition of “Open Account Paying
Agreement”.



     “Organic Document” means, relative to any Obligor, as applicable, its articles or
certificate of incorporation, by-laws, certificate of partnership, partnership agreement,
certificate of formation, limited liability agreement, operating agreement and all shareholder
agreements, voting trusts and similar arrangements applicable to any of such Obligor’s Capital
Securities.



     “Original Closing Date” means September 5, 2006.



     “Original Credit Agreement” means the Credit Agreement dated as of September 5, 2006,
as amended prior to the Restatement Effective Date, among the Borrower, the lenders party thereto,
Citi, as administrative agent and collateral agent, and the co-documentation agents, syndication
agents and lead arrangers party thereto.



     “Original Currency” is defined in Section 10.16.



23









 





     “Other Taxes” means any and all stamp, documentary or similar Taxes, or any other
excise or property Taxes or similar levies that arise on account of any payment made or required to
be made under any Loan Document or from the execution, delivery, registration, recording or
enforcement of any Loan Document.



     “Participant” is defined in clause (e) of Section 10.11.



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



     “Patent Security Agreement” means any Patent Security Agreement executed and delivered
by any Obligor in substantially the form of Exhibit A to the Security Agreement, as amended,
supplemented, amended and restated or otherwise modified from time to time.



     “Patriot Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)), as amended and supplemented from time to time.



     “Patriot Act Disclosures” means all documentation and other information available to
the Borrower or its Subsidiaries which a Lender, if subject to the Patriot Act, is required to
provide pursuant to the applicable section of the Patriot Act and which required documentation and
information the Administrative Agent or any Lender reasonably requests in order to comply with
their ongoing obligations under applicable “know your customer” and anti-money laundering rules and
regulations, including the Patriot Act.



     “PBGC” means the Pension Benefit Guaranty Corporation and any Person succeeding to any
or all of its functions under ERISA.



     “Pension Plan” means a “pension plan”, as such term is defined in Section 3(2) of
ERISA, which is subject to Title IV of ERISA (other than a multiemployer plan as defined in Section
4001(a)(3) of ERISA), and to which the Borrower or any corporation, trade or business that is,
along with the Borrower, a member of a Controlled Group, may have liability, including any
liability by reason of having been a substantial employer within the meaning of Section 4063 of
ERISA at any time during the preceding five years, or by reason of being deemed to be a
contributing sponsor under Section 4069 of ERISA.



     “Percentage” means, as the context may require, any Lender’s Revolving Loan Percentage
or New Term Percentage.



     “Permitted Acquisition” means an acquisition (whether pursuant to an acquisition of a
majority of the Capital Securities of a target or all or substantially all of a target’s assets or
any division or line of business of a target or merger) by the Borrower or any Subsidiary from any
Person of a business in which the following conditions are satisfied:




     (a) the Borrower shall have delivered a certificate certifying that before and after
giving effect to such acquisition, the representations and warranties set forth in each Loan
Document shall, in each case, be true and correct in all material respects with the same
effect as if then made (unless stated to relate solely to an earlier date, in which case
such representations and warranties shall be true and correct in all material respects as of



24









 






such earlier date) and no Default has occurred and is continuing or would result
therefrom; and




     (b) the Borrower shall have delivered to the Administrative Agent a Compliance
Certificate for the period of four full Fiscal Quarters immediately preceding such
acquisition (prepared in good faith and in a manner and using such methodology which is
consistent with the most recent financial statements delivered pursuant to Section
7.1.1) giving pro forma effect to the consummation of such acquisition
and evidencing compliance with the covenants set forth in Section 7.2.4.



     “Permitted Factoring Facility” means any and all agreements or facilities entered into
by the Borrower or any of its Subsidiaries for the purpose of factoring its receivables for cash
consideration.



     “Permitted Liens” is defined in Section 7.2.3.



     “Permitted Securitization” means any Disposition by the Borrower or any of its
Subsidiaries consisting of Receivables and related collateral, credit support and similar rights
and any other assets that are customarily transferred in a securitization of receivables, pursuant
to one or more securitization programs, to a Receivables Subsidiary or a Person who is not an
Affiliate of the Borrower; provided that (i) the consideration to be received by the
Borrower and its Subsidiaries other than a Receivables Subsidiary for any such Disposition consists
of cash, a promissory note or a customary contingent right to receive cash in the nature of a
“hold-back” or similar contingent right, (ii) no Default shall have occurred and be continuing or
would result therefrom and (iii) the aggregate outstanding balance of the Indebtedness in respect
of all such programs at any point in time is not in excess of $400,000,000.



     “Person” means any natural person, corporation, limited liability company,
partnership, joint venture, association, trust or unincorporated organization, Governmental
Authority or any other legal entity, whether acting in an individual, fiduciary or other capacity.



     “Platform” is defined in clause (b) of Section 9.11.



     “Purchase Money Note” means a promissory note evidencing a line of credit, or
evidencing other Indebtedness owed to the Borrower or any Subsidiary in connection with a Permitted
Securitization or Permitted Factoring Facility, which note shall be repaid from cash available to
the maker of such note, other than amounts required to be established as reserves, amounts paid to
investors in respect of interest, principal and other amounts owing to such investors and amounts
paid in connection with the purchase of newly generated accounts receivable.



     “Quarterly Payment Date” means the last day of March, June, September and December,
or, if any such day is not a Business Day, the next succeeding Business Day.



     “Rate Protection Agreement” means, collectively, any agreement with respect to Hedging
Obligations entered into by the Borrower or any of its Subsidiaries under which the counterparty of
such agreement is (or at the time such agreement was entered into, was) a Lender or an Affiliate of
a Lender.



25









 





     “Receivable” shall mean a right to receive payment arising from a sale or lease of
goods or the performance of services by a Person pursuant to an arrangement with another Person
pursuant to which such other Person is obligated to pay for goods or services under terms that
permit the purchase of such goods and services on credit and shall include, in any event, any items
of property that would be classified as an “account,” “chattel paper,” “payment intangible” or
“instrument” under the UCC and any supporting obligations.



     “Receivables Subsidiary” shall mean any wholly owned Subsidiary of the Borrower (or
another Person in which the Borrower or any Subsidiary makes an Investment and to which the
Borrower or one or more of its Subsidiaries transfer Receivables and related assets) which engages
in no activities other than in connection with the financing of Receivables and which is designated
by the Board of Directors of the applicable Subsidiary (as provided below) as a Receivables
Subsidiary and which meets the following conditions:




     (a) no portion of the Indebtedness or any other obligations (contingent or otherwise)
of such Subsidiary:




     (i) is guaranteed by the Borrower or any Subsidiary (that is not a Receivables
Subsidiary);




     (ii) is recourse to or obligates the Borrower or any Subsidiary (that is not a
Receivables Subsidiary); or




     (iii) subjects any property or assets of the Borrower or any Subsidiary (that
is not a Receivables Subsidiary), directly or indirectly, contingently or otherwise,
to the satisfaction thereof;




     (b) with which neither the Borrower nor any Subsidiary (that is not a Receivables
Subsidiary) has any material contract, agreement, arrangement or understanding (other than
Standard Securitization Undertakings); and




     (c) to which neither the Borrower nor any Subsidiary (that is not a Receivables
Subsidiary) has any obligation to maintain or preserve such entity’s financial condition or
cause such entity to achieve certain levels of operating results.



     Any such designation by the Board of Directors of the applicable Subsidiary shall be evidenced
by a certified copy of the resolution of the Board of Directors of such Subsidiary giving effect to
such designation and an officer’s certificate certifying, to the best of such officer’s knowledge
and belief, that such designation complies with the foregoing conditions



     “Refunded Swing Line Loans” is defined in clause (b) of Section 2.3.2.



     “Regulation S-X” is defined in Section 5.1.6.



     “Register” is defined in clause (a) of Section 2.7.



     “Reimbursement Obligation” is defined in Section 2.6.3.



26









 






     “Release” means a “release”, as such term is defined in CERCLA.



     “Replacement Lender” is defined in Section 4.11.



     “Replacement Notice” is defined in Section 4.11.



     “Required Lenders” means, at any time, Non-Defaulting Lenders holding more than 50% of
the Total Exposure Amount of all Non-Defaulting Lenders.



     “Resource Conservation and Recovery Act” means the Resource Conservation and Recovery
Act, 42 U.S.C. Section 6901, et seq., as amended.



     “Restatement
Effective Date” means December 10, 2009.



     “Restricted Payment” means (i) the declaration or payment of any dividend (other than
dividends payable solely in Capital Securities of the Borrower or any Subsidiary (excluding a
Receivables Subsidiary)) on, or the making of any payment or distribution on account of, or setting
apart assets for a sinking or other analogous fund for the purchase, redemption, defeasance,
retirement or other acquisition of, any class of Capital Securities of the Borrower or any
warrants, options or other right or obligation to purchase or acquire any such Capital Securities,
whether now or hereafter outstanding, or (ii) the making of any other distribution in respect of
such Capital Securities, in each case either directly or indirectly, whether in cash, property or
obligations of the Borrower or any Subsidiary or otherwise; provided, however, that
any conversion feature of convertible debt shall not be considered a “Restricted Payment”.



     “Retained Excess Cash Flow” means, on any date of determination, the aggregate amount
of Excess Cash Flow for all prior Fiscal Years ending on or after December 31, 2009 that is not
required to be applied to repay New Term Loans pursuant to Section 3.1.1(f).



     “Revolving Exposure” means, relative to any Revolving Loan Lender, at any time, (i)
the aggregate outstanding principal amount of all Revolving Loans of such Lender at such time, plus
(ii) such Lender’s Revolving Loan Percentage of the Letter of Credit Outstandings, plus
(iii) such Lender’s Swing Line Exposure, plus (iv) such Lender’s Revolving Loan Percentage
of the OA Payment Outstandings.



     “Revolving Loan Commitment” means, relative to any Lender, such Lender’s obligation
(if any) to make Revolving Loans pursuant to clause (a) of Section 2.1.1.



     “Revolving Loan Commitment Amount” means, on any date, $400,000,000, as such amount
may be reduced from time to time pursuant to Section 2.2.



     “Revolving Loan Commitment Termination Date” means the earliest of




     (a) December 31, 2009 (if the initial Credit Extension has not occurred on or prior to
such date);




     (b) the fourth anniversary of the Restatement Effective Date;



27









 






     (c) the date on which the Revolving Loan Commitment Amount is terminated in full or
reduced to zero pursuant to the terms of this Agreement; and




     (d) the date on which any Commitment Termination Event occurs.


Upon the occurrence of any event described in the preceding clauses (c) or (d), the
Revolving Loan Commitments shall terminate automatically and without any further action.




     “Revolving Loan Lender” is defined in clause (a) of Section 2.1.1.



     “Revolving Loan Percentage” means, relative to any Lender, the applicable percentage
relating to Revolving Loans set forth opposite its name on Schedule II hereto under the
Revolving Loan Commitment column or set forth in a Lender Assignment Agreement under the Revolving
Loan Commitment column, as such percentage may be adjusted from time to time pursuant to Lender
Assignment Agreements executed by such Lender and its assignee Lender and delivered pursuant to
Section 10.11. A Lender shall not have any Revolving Loan Commitment if its percentage
under the Revolving Loan Commitment column is zero.



     “Revolving Loans” is defined in clause (a) of Section 2.1.1.



     “Revolving Note” means a promissory note of the Borrower payable to any Revolving Loan
Lender, in the form of Exhibit A-1 hereto (as such promissory note may be amended, endorsed
or otherwise modified from time to time), evidencing the aggregate Indebtedness of the Borrower to
such Revolving Loan Lender resulting from outstanding Revolving Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal thereof.



     “S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill
Companies, Inc. and its successors.



     “SEC” means the Securities and Exchange Commission.



     “Secured Parties” means, collectively, the Lenders, the Issuers, any Open Account
Discount Purchasers, the Administrative Agent, the Collateral Agent, the Lead Arrangers, each
Foreign Working Capital Lender (if applicable), each counterparty to a Rate Protection Agreement
that is (or at the time such Rate Protection Agreement was entered into, was) a Lender or an
Affiliate thereof and (in each case), each Person to whom the Borrower or any of its Subsidiaries
owes Cash Management Obligations, and each of their respective successors, transferees and assigns.



     “Security Agreement” means the Amended and Restated Pledge and Security Agreement
executed and delivered by each Obligor, substantially in the form of Exhibit G hereto,
together with any supplemental Foreign Pledge Agreements delivered pursuant to the terms of this
Agreement, in each case as amended, supplemented, amended and restated or otherwise modified from
time to time.



     “Senior Secured Leverage Ratio” means, on any date, the ratio of



28









 






     (e) Total Senior Secured Debt outstanding on such day



     to




     (f) Total Tangible Assets as of such day.



     “Solvency Certificate” means a certificate executed by the chief financial or
accounting Authorized Officer of the Borrower substantially in the form of Exhibit I.



     “Solvent” means, with respect to any Person and its Subsidiaries on a particular date,
that on such date (i) the fair value of the property (on a going-concern basis) of such Person and
its Subsidiaries on a consolidated basis is greater than the total amount of liabilities, including
contingent liabilities, of such Person and its Subsidiaries on a consolidated basis, (ii) the
present fair salable value of the assets (on a going-concern basis) of such Person and its
Subsidiaries on a consolidated basis is not less than the amount that will be required to pay the
probable liability of such Person and its Subsidiaries on a consolidated basis on its debts as they
become absolute and matured in the ordinary course of business, (iii) such Person does not intend
to, and does not believe that it or its Subsidiaries will, incur debts or liabilities beyond the
ability of such Person and its Subsidiaries to pay as such debts and liabilities mature in the
ordinary course of business (including through refinancings, asset sales and other capital market
transactions), and (iv) such Person and its Subsidiaries on a consolidated basis is not engaged in
business or a transaction, and such Person and its Subsidiaries on a consolidated basis is not
about to engage in a business or a transaction, for which the property of such Person and its
Subsidiaries on a consolidated basis would constitute an unreasonably small capital. The amount of
Contingent Liabilities at any time shall be computed as the amount that, in light of all the facts
and circumstances existing at such time, can reasonably be expected to become an actual or matured
liability.



     “Specified Default” means (i) any Default under Section 8.1.1 or Section
8.1.9 or (ii) any other Event of Default.



     “Standby Letter of Credit” means any Letter of Credit other than a Commercial Letter
of Credit.



     “Standard Securitization Undertakings” shall mean representations, warranties,
covenants and indemnities entered into by the Borrower or any Subsidiary which are reasonably
customary in a securitization of Receivables.



     “Stated Amount” means, on any date and with respect to a particular Letter of Credit,
the total amount then available to be drawn under such Letter of Credit.



     “Stated Expiry Date” is defined in Section 2.6.



     “Stated Maturity Date” means (i) with respect to the New Term Loans, the sixth
anniversary of the Restatement Effective Date and (ii) with respect to all Revolving Loans and
Swing Line Loans, the fourth anniversary of the Restatement Effective Date.



     “Subsidiary” means, with respect to any Person, any other Person of which more than
50% of the outstanding Voting Securities of such other Person (irrespective of whether at the



29









 




time Capital Securities of any other class or classes of such other Person shall or might have
voting power upon the occurrence of any contingency) is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more other Subsidiaries of such Person, or by
one or more other Subsidiaries of such Person. Unless the context otherwise specifically requires,
the term “Subsidiary” shall be a reference to a Subsidiary of the Borrower (other than a
Receivables Subsidiary).




     “Subsidiary Guarantor” means each U.S. Subsidiary that has executed and delivered to
the Administrative Agent the Guaranty (including by means of a delivery of a supplement thereto).



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



     “Swing Line Lender” means, subject to the terms of this Agreement, JPMorgan Chase
Bank, N.A.



     “Swing Line Loan Commitment” is defined in clause (b) of Section
2.1.1.



     “Swing Line Loan Commitment Amount” means, on any date, $50,000,000, as such amount
may be reduced from time to time pursuant to Section 2.2.



     “Swing Line Loans” is defined in clause (b) of Section 2.1.1.



     “Swing Line Note” means a promissory note of the Borrower payable to the Swing Line
Lender, in the form of Exhibit A-3 hereto (as such promissory note may be amended,
restated, endorsed or otherwise modified from time to time), evidencing the aggregate Indebtedness
of the Borrower to the Swing Line Lender resulting from outstanding Swing Line Loans, and also
means all other promissory notes accepted from time to time in substitution therefor or renewal
thereof.



     “Synthetic Lease” means, as applied to any Person, any lease (including leases that
may be terminated by the lessee at any time) of any property (whether real, personal or mixed)
(i) that is not a capital lease in accordance with GAAP and (ii) in respect of which the lessee
retains or obtains ownership of the property so leased for federal income tax purposes, other than
any such lease under which that Person is the lessor.



     “Taxes” means all income, stamp or other taxes, duties, levies, imposts, charges,
assessments, fees, deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, and all interest, penalties or similar
liabilities with respect thereto.



     “Termination Date” means the date on which all Obligations have been paid in full in
cash (other than contingent indemnification obligations for which no claim has been asserted), all
Letters of Credit have been terminated or expired (or been Cash Collateralized), all Rate
Protection Agreements have been terminated and all Commitments shall have terminated.



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     “Total Debt” means, on any date, the outstanding principal amount of all Indebtedness
of the Borrower and its Subsidiaries of the type referred to in clause (i) of the
definition of “Indebtedness”, clause (ii) of the definition of “Indebtedness”, clause
(iii) of the definition of “Indebtedness”, clause (vii) of the definition of
“Indebtedness” and clause (ix) of the definition of “Indebtedness”, in each case exclusive
of (a) intercompany Indebtedness between the Borrower and its Subsidiaries, (b) any Contingent
Liability in respect of any of the foregoing, (c) any Permitted Factoring Facility, (d) any
Commercial Letter of Credit, (e) any Letter of Credit or other credit support relating to the
termination of agreements with respect to Hedging Obligations, in each case under this clause (e),
incurred in connection with or as a result of the Transaction and (f) any Open Account Paying
Agreements.



     “Total Exposure Amount” means, on any date of determination (and without duplication),
the outstanding principal amount of all Loans, the aggregate amount of all Letter of Credit
Outstandings and the unfunded amount of the Commitments.



     “Total Senior Secured Debt” means, on any date, all Total Debt which is secured by a
Lien.



     “Total Tangible Assets” means, on any date, the aggregate amount of assets of the
Borrower and its Subsidiaries shown on a consolidated balance sheet of such Persons at such date
less goodwill and other intangible assets.



     “Trademark Security Agreement” means any Trademark Security Agreement executed and
delivered by any Obligor substantially in the form of Exhibit B to the Security Agreement, as
amended, supplemented, amended and restated or otherwise modified from time to time.



     “Transaction” means, collectively, (i) the amendment and restatement of the Original
Credit Agreement in order to refinance the Borrower’s existing term loans and replace its existing
revolving facility thereunder and (ii) the issuance by the Borrower of the 2016 Senior Notes and
the concurrent repayment of all outstanding loans under the Borrower’s existing second lien credit
agreement.



     “Transaction Documents” means, collectively, the 2016 Senior Notes and any other
material document executed or delivered in connection with the Transaction, including any
transition services agreements and tax sharing agreements, in each case as amended, supplemented,
amended and restated or otherwise modified from time to time in accordance with Section
7.2.12.



     “Treaty on European Union” means the Treaty of Rome of March 25, 1957, as amended by
the Single European Act 1986 and the Maastricht Treaty (which was signed at Maastricht, the Kingdom
of Netherlands, on February 1, 1992 and came into force on November 1, 1993), as amended from time
to time.



     “type” means, relative to any Loan, the portion thereof, if any, being maintained as a
Base Rate Loan or a LIBO Rate Loan.



     “UCC” means the Uniform Commercial Code as in effect from time to time in the State
of New York; provided that if, with respect to any Filing Statement or by reason of any




31











 




provisions of law, the perfection or the effect of perfection or non-perfection of the
security interests granted to the Collateral Agent pursuant to the applicable Loan Document is
governed by the Uniform Commercial Code as in effect in a jurisdiction of the United States other
than New York, then “UCC” means the Uniform Commercial Code as in effect from time to time in such
other jurisdiction for purposes of the provisions of each Loan Document and any Filing Statement
relating to such perfection or effect of perfection or non-perfection.




     “United States” or “U.S.” means the United States of America, its fifty states
and the District of Columbia.



     “U.S. Subsidiary” means any Subsidiary (other than a Receivables Subsidiary) that is
incorporated or organized under the laws of the United States.



     “Voting Securities” means, with respect to any Person, Capital Securities of any class
or kind ordinarily having the power to vote for the election of directors, managers or other voting
members of the governing body of such Person.



     “Welfare Plan” means a “welfare plan”, as such term is defined in Section 3(1) of
ERISA.



     “wholly owned Subsidiary” means any Subsidiary all of the outstanding Capital
Securities of which (other than any director’s qualifying shares or investments by foreign
nationals mandated by applicable laws) is owned directly or indirectly by the Borrower.



               SECTION 1.2 Use of Defined Terms. Unless otherwise defined or the context otherwise
requires, terms for which meanings are provided in this Agreement shall have such meanings when
used in each other Loan Document and the Disclosure Schedule.



               SECTION 1.3 Cross-References. Unless otherwise specified, references in a Loan
Document to any Article or Section are references to such Article or Section of such Loan Document,
and references in any Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.



               SECTION 1.4 Accounting and Financial Determinations. (a) Unless otherwise specified,
all accounting terms used in each Loan Document shall be interpreted, and all accounting
determinations and computations thereunder (including under Section 7.2.4 and the
definitions used in such calculations) shall be made, in accordance with those generally accepted
accounting principles (“GAAP”) applied in the preparation of the financial statements
referred to in clause (a) of Section 5.1.6. In the event that any Accounting
Change (as defined below) shall occur and such change results in a change in the method of
calculation of financial covenants, standards or terms in this Agreement, then the Borrower and the
Administrative Agent agree to enter into good faith negotiations in order to amend such provisions
of this Agreement so as to equitably reflect such Accounting Change with the desired result that
the criteria for evaluating the Borrower and its Subsidiaries consolidated financial condition
shall be the same after such Accounting Change as if such Accounting Change had not been made.
Until such time as such an amendment shall have been executed and delivered by the Borrower, the
Administrative Agent and the Required Lenders, all financial covenants, standards and terms in this
Agreement shall continue to be calculated or construed as if such Accounting Change had



32









 







not occurred. “Accounting Change” refers to any change in accounting principles
required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial
Accounting Standards Board of the American Institute of Certified Public Accountants or, if
applicable, the SEC. Unless otherwise expressly provided, all financial covenants and defined
financial terms shall be computed on a consolidated basis for the Borrower and its Subsidiaries, in
each case without duplication. Notwithstanding any other provision contained herein, all
computations of amounts and ratios referred to in this Agreement shall be made without giving
effect to any election under Statement of Financial Accounting Standards 159 (or any other
Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other
liabilities of the Borrower at “fair value” as defined therein.



          (b) As of any date of determination, for purposes of determining the Interest Coverage Ratio
or Leverage Ratio (and any financial calculations required to be made or included within such
ratios, or required for purposes of preparing any Compliance Certificate to be delivered pursuant
to the definition of “Permitted Acquisition”), the calculation of such ratios and other
financial calculations shall include or exclude, as the case may be, the effect of any assets or
businesses that have been acquired or Disposed of by the Borrower or any of its Subsidiaries
pursuant to the terms hereof (including through mergers or consolidations) as of such date of
determination, as determined by the Borrower on a pro
forma basis in accordance with GAAP, which
determination may include one-time adjustments or reductions in costs, if any, directly
attributable to any such permitted Disposition or Permitted Acquisition, as the case may be, in
each case (i) calculated in accordance with Regulation S-X and any successor statute, for the
period of four Fiscal Quarters ended on or immediately prior to the date of determination of any
such ratios (after giving effect to any cost-savings or adjustments relating to synergies resulting
from a Permitted Acquisition which have been realized or for which the steps necessary for
realization have been taken and certified in good faith by an officer of the Borrower or otherwise
as the Administrative Agent shall otherwise agree) and (ii) giving effect to any such Permitted
Acquisition or permitted Disposition as if it had occurred on the first day of such four Fiscal
Quarter period.



ARTICLE II

COMMITMENTS, BORROWING AND ISSUANCE

PROCEDURES, NOTES AND LETTERS OF CREDIT




               SECTION 2.1 Commitments. On the terms and subject to the conditions of this
Agreement, the Lenders and the Issuers severally agree to make Credit Extensions as set forth
below.



     SECTION 2.1.1 Revolving Loan Commitment and Swing Line Loan Commitment. From time to
time on any Business Day occurring after the Restatement Effective Date but prior to the Revolving
Loan Commitment Termination Date,




     (a) each Lender that has a Revolving Loan Commitment (referred to as a “Revolving
Loan Lender”), agrees that it will make loans (relative to such Lender, its
“Revolving Loans”) to the Borrower denominated in Dollars equal to such Lender’s
Revolving Loan Percentage of the aggregate amount of each Borrowing of the Revolving Loans
requested by the Borrower to be made on such day; and



33









 






     (b) the Swing Line Lender agrees that it will make loans (its “Swing Line
Loans”) denominated in Dollars to the Borrower equal to the principal amount of the
Swing Line Loan requested by the Borrower to be made on such day. The commitment of the
Swing Line Lender described in this clause is herein referred to as its “Swing Line Loan
Commitment”.


On the terms and subject to the conditions hereof, the Borrower may from time to time borrow,
prepay and reborrow Revolving Loans and Swing Line Loans. No Revolving Loan Lender shall be
permitted or required to make any Revolving Loan if, after giving effect thereto, (i) such Lender’s
Revolving Exposure would exceed such Lender’s Revolving Loan Percentage of the then existing
Revolving Loan Commitment Amount or (ii) the aggregate amount of Revolving Loans and Swing Line
Loans outstanding together with the Letter of Credit Outstandings and the OA Payment Outstandings
would exceed the Revolving Loan Commitment Amount. Furthermore, the Swing Line Lender shall not be
permitted or required to make Swing Line Loans if, after giving effect thereto, (A) the aggregate
outstanding principal amount of all Swing Line Loans would exceed the then existing Swing Line Loan
Commitment Amount or (B) the sum of the aggregate amount of all Swing Line Loans and all Revolving
Loans outstanding plus the aggregate amount of Letter of Credit Outstandings and OA Payment
Outstandings would exceed the Revolving Loan Commitment Amount.




     SECTION 2.1.2 Letter of Credit Commitment; Open Account Agreements. (a) From time to
time on any Business Day occurring after the Restatement Effective Date but at least five Business
Days prior to the Revolving Loan Commitment Termination Date, the relevant Issuer agrees that it
will (subject to the terms hereof) (i) issue one or more Letters of Credit in Dollars for the
account of the Borrower, any Subsidiary Guarantor or any Foreign Subsidiary in the Stated Amount
requested by the Borrower on such day, or (ii) extend the Stated Expiry Date of a Letter of Credit
previously issued hereunder. No Issuer shall be permitted or required to issue any Letter of
Credit if, after giving effect thereto, (x) the sum of the aggregate amount of (A) all Letter of
Credit Outstandings plus (B) all OA Payment Outstandings would exceed the then existing Letter of
Credit Commitment Amount or (y) the sum of the aggregate amount of all (A) Letter of Credit
Outstandings plus (B) OA Payment Outstandings plus (C) the aggregate principal amount of all
Revolving Loans and Swing Line Loans then outstanding would exceed the then existing Revolving Loan
Commitment Amount.



     (b) From time to time on any day occurring after the Restatement Effective Date but prior to
the Revolving Loan Commitment Termination Date, an Obligor may enter into one or more Open Account
Paying Agreements with such Lenders or their respective Affiliates as it and they shall so agree;
provided that (i) no Lender will be required to enter into an Open Account Paying Agreement
and (ii) an Obligor shall not be permitted to enter into, or incur obligations under, an Open
Account Paying Agreement if, after giving effect thereto, (x) the sum of the aggregate amount of
(A) all OA Payment Outstandings plus (B) all Letter of Credit Outstandings would exceed the
then existing Letter of Credit Commitment Amount or (y) the sum of the aggregate amount of all (A)
Letter of Credit Outstandings plus (B) OA Payment Outstandings plus (C) the
aggregate principal amount of all Revolving Loans and Swing Line Loans then outstanding would
exceed the then existing Revolving Loan Commitment Amount.



34









 





     SECTION 2.1.3 Term Loan Commitments. In a single Borrowing made on the Restatement
Effective Date, occurring on or prior to the applicable Commitment Termination Date, each Lender
that has a New Term Loan Commitment agrees that it will make Loans (relative to such Lender, its
“New Term Loans”) to the Borrower denominated in Dollars equal to such Lender’s New Term
Percentage of the aggregate amount of the Borrowing, which shall be for the full New Term Loan
Commitment Amount. No amounts paid or prepaid with respect to New Term Loans may be reborrowed.



               SECTION 2.2 Reduction of the Commitment Amounts. The Commitment Amounts are subject
to reduction from time to time as set forth below.



     SECTION 2.2.1 Optional. The Borrower may, from time to time on any Business Day
occurring after the Restatement Effective Date, voluntarily reduce any Commitment Amount on the
Business Day so specified by the Borrower; provided that, all such reductions shall require
at least one Business Day’s prior notice to the Administrative Agent and be permanent, and any
partial reduction of any Commitment Amount shall be in a minimum amount of $1,000,000 and in an
integral multiple of $500,000. Any optional or mandatory reduction of the Revolving Loan
Commitment Amount pursuant to the terms of this Agreement which reduces the Revolving Loan
Commitment Amount below the sum of (i) the Swing Line Loan Commitment Amount and (ii) the Letter of
Credit Commitment Amount shall result in an automatic and corresponding reduction of the Swing Line
Loan Commitment Amount and/or Letter of Credit Commitment Amount (as directed by the Borrower in a
notice to the Administrative Agent delivered together with the notice of such voluntary reduction
in the Revolving Loan Commitment Amount) to an aggregate amount not in excess of the Revolving Loan
Commitment Amount, as so reduced, without any further action on the part of the Swing Line Lender,
any Revolving Loan Lender or any Issuer.



     SECTION 2.2.2 [Reserved].



               SECTION 2.3 Borrowing Procedures. Loans (other than Swing Line Loans and New Term
Loans) shall be made by the Lenders in accordance with Section 2.3.1, and Swing Line Loans
shall be made by the Swing Line Lender in accordance with Section 2.3.2.



     SECTION 2.3.1 Borrowing Procedure. In the case of Loans (other than Swing Line
Loans), by delivering a Borrowing Request to the Administrative Agent on or before 10:00 a.m. on a
Business Day, the Borrower may from time to time irrevocably request, on such Business Day in the
case of Base Rate Loans or on not less than three Business Days’ notice and not more than five
Business Days’ notice, in the case of LIBO Rate Loans denominated in Dollars, that a Borrowing be
made, in the case of LIBO Rate Loans, in a minimum amount of $5,000,000 and an integral multiple of
$1,000,000, in the case of Base Rate Loans, in a minimum amount of $1,000,000 and an integral
multiple of $500,000 or, in either case, in the unused amount of the applicable Commitment. On the
terms and subject to the conditions of this Agreement, each Borrowing shall be comprised of the
type of Loans, and shall be made on the Business Day specified in such Borrowing Request. In the
case of other than Swing Line Loans, on or before 12:00 noon on such Business Day each Lender that
has a Commitment to make the Loans being requested shall deposit with the Administrative Agent same
day funds in an amount equal to such Lender’s Percentage of the requested Borrowing. Such deposit
will be made to an account



35









 




which the Administrative Agent shall specify from time to time by notice to the Lenders. To
the extent funds are received from the Lenders, the Administrative Agent shall make such funds
available to the Borrower by wire transfer to the accounts the Borrower shall have specified in its
Borrowing Request. No Lender’s obligation to make any Loan shall be affected by any other Lender’s
failure to make any Loan.




     SECTION 2.3.2 Swing Line Loans; Participations, etc. (a) By telephonic notice to the
Swing Line Lender on or before 2:00 p.m. on a Business Day (followed (within one Business Day) by
the delivery of a confirming Borrowing Request), the Borrower may from time to time irrevocably
request that Swing Line Loans be made by the Swing Line Lender in an aggregate minimum principal
amount of $500,000 and an integral multiple of $100,000. All Swing Line Loans shall be made as
Base Rate Loans and shall not be entitled to be converted into LIBO Rate Loans. The proceeds of
each Swing Line Loan shall be made available by the Swing Line Lender to the Borrower by wire
transfer to the account the Borrower shall have specified in its notice therefor by the close of
business on the Business Day telephonic notice is received by the Swing Line Lender. Upon the
making of each Swing Line Loan, and without further action on the part of the Swing Line Lender or
any other Person, each Revolving Loan Lender (other than the Swing Line Lender) shall be deemed to
have irrevocably purchased, to the extent of its Revolving Loan Percentage, a participation
interest in such Swing Line Loan, and such Revolving Loan Lender shall, to the extent of its
Revolving Loan Percentage, be responsible for reimbursing within one Business Day the Swing Line
Lender for Swing Line Loans which have not been reimbursed by the Borrower in accordance with the
terms of this Agreement.



     (b) If (i) any Swing Line Loan shall be outstanding for more than four Business Days, (ii) any
Swing Line Loan is or will be outstanding on a date when the Borrower requests that a Revolving
Loan be made, or (iii) any Default shall occur and be continuing, then each Revolving Loan Lender
(other than the Swing Line Lender) irrevocably agrees that it will, at the request of the Swing
Line Lender, make a Revolving Loan (which shall initially be funded as a Base Rate Loan) in an
amount equal to such Lender’s Revolving Loan Percentage of the aggregate principal amount of all
such Swing Line Loans then outstanding (such outstanding Swing Line Loans hereinafter referred to
as the “Refunded Swing Line Loans”). On or before 11:00 a.m. on the first Business Day
following receipt by each Revolving Loan Lender of a request to make Revolving Loans as provided in
the preceding sentence, each Revolving Loan Lender shall deposit in an account specified by the
Swing Line Lender the amount so requested in same day funds and such funds shall be applied by the
Swing Line Lender to repay the Refunded Swing Line Loans. At the time the Revolving Loan Lenders
make the above referenced Revolving Loans the Swing Line Lender shall be deemed to have made, in
consideration of the making of the Refunded Swing Line Loans, Revolving Loans in an amount equal to
the Swing Line Lender’s Revolving Loan Percentage of the aggregate principal amount of the Refunded
Swing Line Loans. Upon the making (or deemed making, in the case of the Swing Line Lender) of any
Revolving Loans pursuant to this clause, the amount so funded shall become an outstanding Revolving
Loan and shall no longer be owed as a Swing Line Loan. All interest payable with respect to any
Revolving Loans made (or deemed made, in the case of the Swing Line Lender) pursuant to this clause
shall be appropriately adjusted to reflect the period of time during which the Swing Line Lender
had outstanding Swing Line Loans in respect of which such Revolving Loans were made. Each
Revolving Loan Lender’s obligation to make the Revolving Loans referred to in this clause shall be
absolute and unconditional and shall not be affected by any



36









 




circumstance, including (i) any set-off, counterclaim, recoupment, defense or other right
which such Lender may have against the Swing Line Lender, any Obligor or any Person for any reason
whatsoever; (ii) the occurrence or continuance of any Default; (iii) any adverse change in the
condition (financial or otherwise) of any Obligor; (iv) the acceleration or maturity of any
Obligations or the termination of any Commitment after the making of any Swing Line Loan; (v) any
breach of any Loan Document by any Person; or (vi) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.




               SECTION 2.4 Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 10:00 a.m. on a Business
Day, the Borrower may from time to time irrevocably elect on not less than three nor more than five
Business Days’ notice (a) to convert any Base Rate Loan into one or more LIBO Rate Loans or
(b) before the last day of the then current Interest Period with respect thereto, to continue any
LIBO Rate Loan as a LIBO Rate Loan; provided that (i) any portion of any Loan which is
continued or converted hereunder shall be in a minimum amount of $1,000,000 and in an integral
multiple amount of $1,000,000 and (ii) in the absence of prior notice as required above (which
notice may be delivered telephonically followed by written confirmation within 24 hours thereafter
by delivery of a Continuation/Conversion Notice), with respect to any LIBO Rate Loan at least three
Business Days before the last day of the then current Interest Period with respect thereto, such
LIBO Rate Loan shall, on such last day, automatically convert to a Base Rate Loan; provided
further that (A) each such conversion or continuation shall be pro rated among the
applicable outstanding Loans of all Lenders that have made such Loans, and (B) no portion of the
outstanding principal amount of any Loans may be continued as, or be converted into, LIBO Rate
Loans when any Event of Default has occurred and is continuing.



               SECTION 2.5 Funding. Each Lender may, if it so elects, fulfill its obligation to
make, continue or convert LIBO Rate Loans hereunder by causing one of its foreign branches or
Affiliates (or an international banking facility created by such Lender) to make or maintain such
LIBO Rate Loan; provided that, such LIBO Rate Loan shall nonetheless be deemed to have been
made and to be held by such Lender, and the obligation of the Borrower to repay such LIBO Rate Loan
shall nevertheless be to such Lender for the account of such foreign branch, Affiliate or
international banking facility. Subject to Section 4.10, each Lender may, at its option,
make any Loan available to the Borrower by causing any foreign or domestic branch or Affiliate of
such Lender to make such Loan; provided that any exercise of such option shall not affect
the obligation of the Borrower to repay Loans in accordance with the terms of this Agreement.



               SECTION 2.6 Issuance Procedures. By delivering to the Administrative Agent and the
relevant Issuer an Issuance Request on or before 10:00 a.m. on a Business Day, the Borrower may
from time to time irrevocably request on not less than three nor more than ten Business Days’
notice, in the case of an initial issuance of a Letter of Credit and not less than three Business
Days’ prior notice, in the case of a request for the extension of the Stated Expiry Date of a
Standby Letter of Credit (in each case, unless a shorter notice period is agreed to by the relevant
Issuer, in its sole discretion), that an Issuer issue a Letter of Credit, or extend the Stated
Expiry Date of a Standby Letter of Credit, in such form as may be requested by the Borrower and
approved by such Issuer, solely for the purposes described in Section 7.1.7. In connection
with any Issuance Request the Borrower and/or applicable Subsidiary shall have executed and



37









 




delivered such applications, agreements and other instruments relating to such Letter of
Credit as such Issuer shall have reasonably requested consistent with its then current practices
and procedures with respect to letters of credit of the same type, provided that in the
event of any conflict between any such application, agreement or other instrument and the
provisions of this Agreement, the provisions of this Agreement shall control. Each Standby Letter
of Credit shall by its terms be stated to expire on a date (its “Stated Expiry Date”) no
later than the earlier to occur of (i) five Business Days prior to the Revolving Loan Commitment
Termination Date or (ii) unless otherwise agreed to by an Issuer, in its sole discretion, one year
from the date of its issuance (provided that each Standby Letter of Credit may, with the
consent of the Issuer thereof in its sole discretion, provide for automatic renewals for one year
periods (which in no event shall extend beyond the Revolving Loan Commitment Termination Date)).
Each Commercial Letter of Credit shall by its terms be stated to expire on a date no later than the
earlier to occur of (i) five Business Days prior to the Revolving Loan Commitment Termination Date
or (ii) unless otherwise agreed to by an Issuer, in its sole discretion, 180 days from the date of
its issuance. Each Issuer will make available to the beneficiary thereof the original of the
Letter of Credit which it issues. Each Issuer shall provide periodic reporting of Letters of
Credit issued by such Issuer in a manner, and in time periods, mutually acceptable to the
Administrative Agent and such Issuer. Unless notified by the Administrative Agent in writing prior
to the issuance of a Letter of Credit, the applicable Issuer shall be entitled to assume that the
conditions precedent to such issuance have been met.




     SECTION 2.6.1 Other Lenders Participation.




     (a) Upon the issuance of each Letter of Credit, and without further action, each
Revolving Loan Lender (other than the applicable Issuer) shall be deemed to have irrevocably
purchased, to the extent of its Revolving Loan Percentage, a participation interest in such
Letter of Credit (including the Contingent Liability and any Reimbursement Obligation with
respect thereto), and such Revolving Loan Lender shall, to the extent of its Revolving Loan
Percentage, be responsible for reimbursing the applicable Issuer for Reimbursement
Obligations which have not been reimbursed by the Borrower in accordance with Section 2.6.3
in the applicable currency and at the times set forth in such Section (with the terms of
this Section surviving the termination of this Agreement). In addition, such Revolving Loan
Lender shall, to the extent of its Revolving Loan Percentage, be entitled to receive a
ratable portion of the Letter of Credit fees payable pursuant to Section 3.3.3 with respect
to each Letter of Credit (other than the issuance fees payable to the Issuer of such Letter
of Credit pursuant to the last sentence of Section 3.3.3) and of interest payable pursuant
to Section 3.2 with respect to any Reimbursement Obligation accruing on and after the date
(and to the extent) such Lender funds its participation interest in such Letter of Credit.
To the extent that any Revolving Loan Lender has reimbursed any Issuer for a Disbursement,
such Lender shall be entitled to receive its ratable portion of any amounts subsequently
received (from the Borrower or otherwise) in respect of such Disbursement. Upon any change
in the Revolving Loan Commitments pursuant to an assignment under Section 10.10 of this
Agreement, it is hereby agreed that with respect to all Letter of Credit Outstandings, there
shall be an automatic adjustment to the participations hereby created to reflect the new
Revolving Loan Percentage of the assigning and assignee Revolving Loan Lenders.



38









 






     (b) Upon the entry into each Open Account Discount Agreement, and without further
action, each Revolving Loan Lender (other than the applicable Open Account Discount
Purchaser) shall be deemed to have irrevocably purchased, to the extent of its Revolving
Loan Percentage, a participation interest in such Open Account Discount Agreement, and such
Revolving Loan Lender shall, to the extent of its Revolving Loan Percentage, be responsible
for reimbursing the applicable Open Account Discount Purchaser for OA Payment Obligations
under the applicable Open Account Paying Agreement which have not been reimbursed by the
relevant Obligor in accordance with the terms thereof (with the terms of this Section
surviving the termination of this Agreement). In addition, such Revolving Loan Lender
shall, to the extent of its Revolving Loan Percentage, be entitled to receive a ratable
portion of the Open Account Agreement payments pursuant to Section 3.3.4 and of
interest payable pursuant to Section 3.2 with respect to any OA Payment Obligations
accruing on and after the date (and to the extent) such Lender funds its participation
interest in such OA Payment Obligations. To the extent that any Revolving Loan Lender has
reimbursed any Open Account Discount Purchaser for an Open Account Discount Purchase, such
Lender shall be entitled to receive its ratable portion of any amounts subsequently received
(from the Borrower or otherwise) in respect of such Open Account Discount Purchase. Upon
any change in the Revolving Loan Commitments pursuant to an assignment under Section 10.10
of this Agreement, it is hereby agreed that with respect to all OA Payment Outstandings,
there shall be an automatic adjustment to the participations hereby created to reflect the
new Revolving Loan Percentage of the assigning and assignee Revolving Loan Lenders. The
Borrower shall be required to reimburse each Open Account Discount Purchaser in accordance
with the terms set forth in the applicable Open Account Paying Agreement.



     SECTION 2.6.2 Disbursements. An Issuer will notify the Borrower and the
Administrative Agent promptly of the presentment for payment of any Letter of Credit issued by such
Issuer, together with notice of the date (the “Disbursement Date”) such payment shall be
made (each such payment, a “Disbursement”). Subject to the terms and provisions of such
Letter of Credit and this Agreement, the applicable Issuer shall make such payment to the
beneficiary (or its designee) of such Letter of Credit. Not later than 1:00 p.m. on (i) a
Disbursement Date, if the Borrower shall have received notice of such Disbursement prior to 10:00
a.m. on such Disbursement Date, or (ii) the Business Day immediately following a Disbursement Date,
if such notice is received after 10:00 a.m. on such Disbursement Date, the Borrower will reimburse
such Issuer directly in full for such Disbursement. Each such reimbursement shall be made in
immediately available funds together (in the case of a reimbursement made on such immediately
following Business Day, with interest thereon at a rate per annum equal to the rate per annum then
in effect for Base Rate Loans (with the then Applicable Margin for Revolving Loans accruing on such
amount) pursuant to Section 3.2 for the period from the Disbursement Date through the date
of such reimbursement, provided that if such reimbursement is not made when due pursuant to
this Section 2.6.2, then the interest rates set forth in Section 3.2.2 shall apply.
Without limiting in any way the foregoing and notwithstanding anything to the contrary contained
herein or in any separate application for any Letter of Credit, the Borrower hereby acknowledges
and agrees that it shall be obligated to reimburse the applicable Issuer upon each Disbursement of
a Letter of Credit, and it shall be deemed to be the obligor for purposes of each such Letter of
Credit issued hereunder (whether the account party on such Letter of Credit is the



39









 




Borrower or a Subsidiary). In the event that an Issuer makes any Disbursement and the
Borrower shall not have reimbursed such amount in full to such Issuer pursuant to this Section
2.6.2, such Issuer shall promptly notify the Administrative Agent which shall promptly notify
each Revolving Loan Lender of such failure, and each Revolving Loan Lender (other than such Issuer)
shall promptly and unconditionally pay in same day funds to the Administrative Agent for the
account of such Issuer the amount of such Revolving Loan Lender’s Revolving Loan Percentage of such
unreimbursed Disbursement. If an Issuer so notifies the Administrative Agent, and the
Administrative Agent so notifies the Revolving Loan Lenders prior to 2:00 p.m., on any Business
Day, each such Revolving Loan Lender shall make available to such Issuer such Revolving Loan
Lender’s Revolving Loan Percentage of the amount of such payment on such Business Day in same day
funds (or if such notice is received by such Revolving Loan Lenders after 2:00 p.m. on the day of
receipt, payment shall be made on the immediately following Business Day). If and to the extent
such Revolving Loan Lender shall not have so made its Revolving Loan Percentage of the amount of
such payment available to the applicable Issuer, such Revolving Loan Lender agrees to pay to such
Issuer forthwith on demand such amount, together with interest thereon, for each day from such date
until the date such amount is paid to the Administrative Agent for the account of such Issuer, at
the Federal Funds Rate.




     SECTION 2.6.3 Reimbursement. The obligation (a “Reimbursement Obligation”) of
the Borrower under Section 2.6.2 to reimburse an Issuer with respect to each Disbursement
(including interest thereon) and, upon the failure of the Borrower to reimburse an Issuer, each
Revolving Loan Lender’s obligation under Section 2.6.1 to reimburse an Issuer, shall be
absolute and unconditional under any and all circumstances and irrespective of (i) any setoff,
counterclaim or defense to payment which the Borrower or such Revolving Loan Lender, as the case
may be, may have or have had against such Issuer, any Lender or any other Person (including any
Subsidiary) for any reason whatsoever, including any defense based upon the failure of any
Disbursement to conform to the terms of the applicable Letter of Credit (if, in such Issuer’s good
faith opinion (absent such Issuer’s gross negligence or willful misconduct), such Disbursement is
determined to be appropriate) or any non-application or misapplication by the beneficiary of the
proceeds of such Letter of Credit; (ii) the occurrence or continuance of any Default; (iii) any
adverse change in the condition (financial or otherwise) of any Obligor; (iv) the acceleration or
maturity of any Obligations or the termination of any Commitment after the issuance of a Letter of
Credit; (v) any breach of any Loan Document by any Person; or (vi) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing (including any of the
events set forth in Section 2.6.5); provided that, after paying in full its
Reimbursement Obligation hereunder, nothing herein shall adversely affect the right of the Borrower
or such Lender, as the case may be, to commence any proceeding against an Issuer for any wrongful
Disbursement made by such Issuer under a Letter of Credit as a result of acts or omissions
constituting gross negligence, bad faith or willful misconduct on the part of such Issuer.



     SECTION 2.6.4 Deemed Disbursements. Upon the occurrence and during the continuation
of any Event of Default under Section 8.1.9 or upon notification by the Administrative
Agent (acting at the direction of the Required Lenders) to the Borrower of its obligations under
this Section, following the occurrence and during the continuation of any other Event of Default,



40









 






     (a) the aggregate Stated Amount of all Letters of Credit shall, without demand upon or
notice to the Borrower or any other Person, be deemed to have been paid or disbursed by the
Issuers of such Letters of Credit (notwithstanding that such amount may not in fact have
been paid or disbursed); and




     (b) the Borrower shall be immediately obligated to reimburse the Issuers for the amount
deemed to have been so paid or disbursed by such Issuers.


Amounts payable by the Borrower pursuant to this Section shall be deposited in immediately
available funds with the Collateral Agent and held as cash collateral security for the
Reimbursement Obligations. When all Defaults giving rise to the deemed disbursements under this
Section have been cured or waived the Collateral Agent shall return to the Borrower all amounts
then on deposit with the Collateral Agent pursuant to this Section which have not been applied to
the satisfaction of the Reimbursement Obligations.




     SECTION 2.6.5 Nature of Reimbursement Obligations. The Borrower, each other Obligor
and, to the extent set forth in Section 2.6.1, each Revolving Loan Lender shall assume all
risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary thereof. No
Issuer (except to the extent of its own gross negligence, bad faith or willful misconduct) shall be
responsible for:



     (a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any
Letter of Credit or any document submitted by any party in connection with the application
for and issuance of a Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged;



     (b) the form, validity, sufficiency, accuracy, genuineness or legal effect of any
instrument transferring or assigning or purporting to transfer or assign a Letter of Credit
or the rights or benefits thereunder or the proceeds thereof in whole or in part, which may
prove to be invalid or ineffective for any reason;



     (c) failure of the beneficiary to comply fully with conditions required in order to
demand payment under a Letter of Credit;



     (d) errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise or errors in interpretation of
technical terms or any consequence arising from causes beyond the control of such Issuer; or



     (e) any loss or delay in the transmission or otherwise of any document or draft
required in order to make a Disbursement under a Letter of Credit.


In furtherance of the foregoing and without limiting the generality thereof, the parties agree that
with respect to documents presented which appear on their face to be in substantial compliance with
the terms of a Letter of Credit, an Issuer may, in its sole discretion, either accept and make
payment upon such documents without responsibility for further investigation or refuse to accept
and make payment upon such documents if such documents are not in strict compliance with the terms
of such Letter of Credit. None of the foregoing shall affect, impair or prevent the vesting






41









 







of any of the rights or powers granted to any Issuer or any Revolving Loan Lender hereunder. In
furtherance and not in limitation or derogation of any of the foregoing, any action taken or
omitted to be taken by an Issuer in good faith (and not constituting gross negligence or willful
misconduct) shall be binding upon each Obligor and each such Secured Party, and shall not put such
Issuer under any resulting liability to any Obligor or any Secured Party, as the case may be.




     SECTION 2.6.6 Existing Letters of Credit. On the Effective Date, all Existing Letters
of Credit shall be deemed to have been issued hereunder and shall for all purposes be deemed to be
“Letters of Credit” hereunder.



               SECTION 2.7 Register; Notes. The Register shall be maintained on the following terms.



     (a) The Borrower hereby designates the Administrative Agent to serve as the Borrower’s agent,
solely for the purpose of this clause, to maintain a register (the “Register”) on which the
Administrative Agent will record each Lender’s Commitment, the Loans made by each Lender and each
repayment in respect of the principal amount of the Loans, annexed to which the Administrative
Agent shall retain a copy of each Lender Assignment Agreement delivered to the Administrative Agent
pursuant to Section 10.11. Failure to make any recordation, or any error in such
recordation, shall not affect any Obligor’s Obligations. The entries in the Register shall
constitute prima facie evidence and shall be binding, in the absence of manifest error, and the
Borrower, the Administrative Agent and the Lenders shall treat each Person in whose name a Loan is
registered (or, if applicable, to which a Note has been issued) as the owner thereof for the
purposes of all Loan Documents, notwithstanding notice or any provision herein to the contrary.
Any assignment or transfer of a Commitment or the Loans made pursuant hereto shall be registered in
the Register only upon delivery to the Administrative Agent of a Lender Assignment Agreement that
has been executed by the requisite parties pursuant to Section 10.11. No assignment or
transfer of a Lender’s Commitment or Loans shall be effective unless such assignment or transfer
shall have been recorded in the Register by the Administrative Agent as provided in this Section.



     (b) The Borrower agrees that, upon the request to the Administrative Agent by any Lender, the
Borrower will execute and deliver to such Lender a Note evidencing the Loans made by, and payable
to the order of, such Lender in a maximum principal amount equal to such Lender’s Percentage of the
original applicable Commitment Amount. The Borrower hereby irrevocably authorizes each Lender to
make (or cause to be made) appropriate notations on the grid attached to such Lender’s Note (or on
any continuation of such grid), which notations, if made, shall evidence, inter
alia, the date of, the outstanding principal amount of, and the interest rate and Interest
Period applicable to the Loans evidenced thereby. Such notations shall, to the extent not
inconsistent with notations made by the Administrative Agent in the Register, constitute prima
facie evidence and shall be binding on each Obligor absent manifest error; provided that,
the failure of any Lender to make any such notations shall not limit or otherwise affect any
Obligations of any Obligor.



               SECTION 2.8 [Reserved].



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               SECTION 2.9 Incremental Facilities. (a) After the Restatement Effective Date and
before the Stated Maturity Date, the Borrower, by written notice to Administrative Agent, may
request (i) the establishment of one or more additional tranches of term loans (the commitments
thereto, the “Incremental Term Loan Commitments”) and/or (ii) increases in the Revolving
Loan Commitments (the “Incremental Revolving Commitments” and, together with the
Incremental Term Loan Commitments, the “Incremental Loan Commitments”), by an aggregate
amount not in excess of $300,000,000 in the aggregate and not less than $50,000,000 individually
(or such lesser amount as shall constitute the difference between $300,000,000 and the aggregate
amount of all such Incremental Loan Commitments obtained on or prior to such date). Each such
notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower
proposes that the Incremental Loan Commitments shall be effective, which shall be a date not less
than 10 Business Days after the date on which such notice is delivered to the Administrative Agent.
The Borrower may approach any Lender or any Person (other than an Ineligible Assignee) to provide
all or a portion of the Incremental Loan Commitments; provided that (i) no Lender will be
required to provide such Incremental Loan Commitment and (ii) any entity providing all or a portion
of the Incremental Loan Commitments that is not a Lender, an Affiliate of a Lender or an Approved
Fund shall not be an Ineligible Assignee and shall be reasonably acceptable to the Administrative
Agent (with such acceptance by the Administrative Agent to not be unreasonably withheld or
delayed).



     (b) In each case, such Incremental Loan Commitments shall become effective as of the
applicable Increased Amount Date, provided that (i) no Default or Event of Default shall
exist on such Increased Amount Date before or after giving effect to such Incremental Loan
Commitments, (ii) the Borrower shall be in compliance with Section 7.2.4 both before and
after giving effect to such Incremental Loan Commitments, (iii) the weighted average life to
maturity of any Incremental Term Loan shall be greater than or equal to the then-remaining weighted
average life to maturity of the New Term Loans, (iv) the interest rate margin in respect of any
Incremental Term Loans or Incremental Revolving Loans (including original issue discount
(“OID”) or upfront fees in connection therewith) shall not exceed the Applicable Margin for
the New Term Loans or Revolving Loans, as applicable, or if it does so exceed such Applicable
Margin, such Applicable Margin for the New Term Loans or Revolving Loans, as applicable, shall be
increased so that the interest rate margin in respect of such Incremental Term Loan or Incremental
Revolving Loan (giving effect to any OID issued or upfront fees in connection therewith) is no
greater than the Applicable Margin for the New Term Loans or Revolving Loan, as applicable and (v)
the Incremental Loan Commitments shall be effected pursuant to one or more joinder agreements in a
form reasonably acceptable to the Administrative Agent (each, a “Joinder Agreement”)
executed and delivered by the Borrower, the applicable Incremental Term Loan Lender and the
Administrative Agent pursuant to which such Incremental Term Loan Lender agrees to be bound to the
terms of this Agreement as a Lender. Any Incremental Term Loans made on an Increased Amount Date
shall be designated a separate tranche of Incremental Term Loans for all purposes of this
Agreement.



     (c) On any Increased Amount Date on which Incremental Revolving Commitments are effected,
subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with
Revolving Loan Commitments shall assign to each Person with an Incremental Revolving Commitment
(each, a “Incremental Revolving Lender”) and each of the Incremental Revolving Lenders
shall purchase from each of the Lenders with Revolving Loan Commitments,



43









 




at the principal amount thereof, such interests in the Revolving Loans outstanding on such
Increased Amount Date as shall be necessary in order that, after giving effect to all such
assignments and purchases, the Revolving Loans will be held by existing Revolving Lenders and
Incremental Revolving Lenders ratably in accordance with their Revolving Loan Commitments after
giving effect to the addition of such Incremental Revolving Commitments to the Revolving Loan
Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving
Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed,
for all purposes, a Revolving Loan and (c) each Incremental Revolving Lender shall become a Lender
with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms
and provisions of the Incremental Revolving Loans and Incremental Revolving Commitments shall be
identical to the Revolving Loans and the Revolving Loan Commitments.




     (d) On any Increased Amount Date on which any Incremental Term Loan Commitments are effected,
subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an
Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall make a
Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental
Term Loan Commitment, and (ii) each Incremental Term Loan Lender shall become a Lender hereunder
with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant
thereto.



     (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such
amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in
the opinion of the Administrative Agent, to effect the provisions of this Section 2.9.



ARTICLE III

REPAYMENTS, PREPAYMENTS, INTEREST AND FEES




               SECTION 3.1 Repayments and Prepayments; Application. The Borrower agrees that the
Loans shall be repaid and prepaid pursuant to the following terms.



     SECTION 3.1.1 Repayments and Prepayments. The Borrower shall repay in full the unpaid
principal amount of each Loan upon the applicable Stated Maturity Date therefor. Prior thereto,
payments and prepayments of the Loans shall or may be made as set forth below.



     (a) From time to time on any Business Day, the Borrower may make a voluntary prepayment, in
whole or in part, of the outstanding principal amount of any




     (i) Loans (other than Swing Line Loans); provided that, (A) any such voluntary
prepayment of the New Term Loans shall be made of the same type and, if applicable, having
the same Interest Period of all Lenders that have made such New Term Loans (applied to the
remaining amortization payments for the New Term Loans in such amounts as the Borrower shall
determine) and any such prepayment of Revolving Loans shall be made pro rata
among the Revolving Loans of the same type, having the same Interest Period of all Lenders
that have made such Revolving Loans; (B) all such voluntary prepayments shall require at
least (1) in the case of Base Rate Loans, one but



44









 







no more than five Business Days’ prior notice to the Administrative Agent and (2) in
the case of LIBO Rate Loans, three but no more than five Business Days’ prior notice to the
Administrative Agent; and (C) all such voluntary partial prepayments shall be in an
aggregate minimum amount of $1,000,000 and an integral multiple of $500,000; and




     (ii) Swing Line Loans; provided that, (A) all such voluntary prepayments shall
require prior telephonic notice to the Swing Line Lender on or before 1:00 p.m. on the day
of such prepayment (such notice to be confirmed in writing within 24 hours thereafter); and
(B) all such voluntary partial prepayments shall be in an aggregate minimum amount of
$200,000 and an integral multiple of $100,000.



     (b) On each date when the aggregate Revolving Exposure of all Revolving Loan Lenders exceeds
the Revolving Loan Commitment Amount (as it may be reduced from time to time pursuant to this
Agreement), the Borrower shall make a mandatory prepayment of Revolving Loans or Swing Line Loans
(or both) and, if necessary, Cash Collateralize all Letter of Credit Outstandings, in an aggregate
amount equal to such excess.



     (c) On each Quarterly Payment Date (beginning with the Quarterly Payment Date on March 31,
2010), the Borrower shall make a scheduled repayment of the aggregate outstanding principal amount,
if any, of all New Term Loans in an amount equal to 0.25% of the original principal amount of all
New Term Loans, with the remaining amount of New Term Loans due and payable in full on the Stated
Maturity Date for New Term Loans.



     (d) [Reserved].



     (e) The Borrower shall (subject to the next proviso) within 10 days after receipt of any Net
Disposition Proceeds or Net Casualty Proceeds in excess of $2,000,000 by the Borrower or any of its
U.S. Subsidiaries, deliver to the Administrative Agent a calculation of the amount of such
proceeds, and, to the extent the aggregate amount of such (i) Net Disposition Proceeds received by
the Borrower and its U.S. Subsidiaries in any period of twelve consecutive calendar months since
the Original Closing Date exceeds $10,000,000 and (ii) Net Casualty Proceeds received by the
Borrower and its U.S. Subsidiaries in any period of twelve consecutive calendar months since the
Original Closing Date exceeds $50,000,000, the Borrower shall make a mandatory prepayment of the
New Term Loans in an amount equal to 100% of such excess Net Disposition Proceeds or Net Casualty
Proceeds, as applicable; provided that, so long as (i) no Event of Default has occurred and
is continuing, such proceeds may be retained by the Borrower and its U.S. Subsidiaries (and be
excluded from the prepayment requirements of this clause) to be invested or reinvested within one
year or, subject to immediately succeeding clause (ii), 18 months or 36 months, as
applicable, to the acquisition or construction of other assets or properties consistent with the
businesses permitted to be conducted pursuant to Section 7.2.1 (including by way of merger
or Investment), and (ii) within one year following the receipt of such Net Disposition Proceeds or
Net Casualty Proceeds, such proceeds are (A) applied or (B) committed to be, and actually are,
applied within (I) 18 months following the receipt of such Net Disposition Proceeds or (II) 36
months following the receipt of such Net Casualty Proceeds, in each case to such acquisition or
construction plan. The amount of such Net Disposition Proceeds or Net Casualty Proceeds unused or
uncommitted after such one year, 18 months or 36 months, as applicable, period shall be applied to
prepay the New Term Loans as set forth in Section 3.1.2.



45









 




At any time after receipt of any such Net Casualty Proceeds in excess of $25,000,000 but prior
to the application thereof to such mandatory prepayment or the acquisition of other assets or
properties as described above, upon the request by the Administrative Agent (acting at the
direction of the Required Lenders) to the Borrower, the Borrower shall deposit an amount equal to
such excess Net Casualty Proceeds into a cash collateral account maintained with (and subject to
documentation reasonably satisfactory to) the Collateral Agent for the benefit of the Secured
Parties (and over which the Collateral Agent shall have a first priority perfected Lien) pending
application as a prepayment or to be released as requested by the Borrower in respect of such
acquisition. Amounts deposited in such cash collateral account shall be invested in Cash
Equivalent Investments, as directed by the Borrower.




     (f) Within 100 days after the close of each Fiscal Year (beginning with the Fiscal Year ending
2009) the Borrower shall make a mandatory prepayment of the New Term Loans in an amount equal to
(i) the product of (A) the Excess Cash Flow (if any) for such Fiscal Year multiplied by (B)
the Applicable Percentage minus (ii) the aggregate amount of all voluntary prepayments of
Loans (but including Revolving Loans and Swing Line Loans only to the extent of a corresponding
reduction of the Revolving Loan Commitment Amount pursuant to Section 2.2.1) made during
such Fiscal Year, to be applied as set forth in Section 3.1.2;



     (g) Concurrently with the receipt by the Borrower or any of its U.S. Subsidiaries of any Net
Debt Proceeds, the Borrower shall make a mandatory prepayment of the New Term Loans in an amount
equal to 100% of such Net Debt Proceeds, to be applied as set forth in Section 3.1.2.



     (h) Immediately upon any acceleration of the Stated Maturity Date of any Loans pursuant to
Section 8.2 or Section 8.3, the Borrower shall repay all the Loans, unless,
pursuant to Section 8.3, only a portion of all the Loans is so accelerated (in which case
the portion so accelerated shall be so repaid).


Each prepayment of any Loans made pursuant to this Section shall be without premium or penalty,
except as may be required by Section 4.4.




     SECTION 3.1.2 Application. Amounts prepaid pursuant to Section 3.1.1 shall be
applied as set forth in this Section.



     (a) Subject to clause (b), each prepayment or repayment of the principal of the Loans
shall be applied, to the extent of such prepayment or repayment, first, to the principal
amount thereof being maintained as Base Rate Loans, and second, subject to the terms of
Section 4.4, to the principal amount thereof being maintained as LIBO Rate Loans.



     (b) Each prepayment of the New Term Loans made pursuant to clauses (e), (f),
and (g) of Section 3.1.1 shall be applied first, pro rata
to a mandatory prepayment of the outstanding principal amount of all New Term Loans (with the
amount of such prepayment of the New Term Loans being applied (A) first to the remaining
New Term Loans to reduce in direct order of maturity the amortization payments that are due and
payable within 24 calendar months from the date of such prepayment, and (B) second, to the
extent in excess of the amounts to be applied




46












 




pursuant to the preceding clause (A), to reduce the then remaining New Term Loan
amortization payments on a pro rata basis).




     (c) So long as the Administrative Agent has received prior written notice from the Borrower of
a mandatory prepayment pursuant to clauses (e), (f) and (g) of Section
3.1.1, the Administrative Agent shall provide notice of such mandatory prepayment to the
Lenders with New Term Loans. It is understood and agreed by the Borrower that, notwithstanding
receipt by the Administrative Agent of any such mandatory prepayment, the New Term Loans shall not
be deemed repaid, unless otherwise consented to by the Administrative Agent, until five Business
Days have elapsed from the delivery to the Administrative Agent of the notice described above in
this clause (c).



               SECTION 3.2 Interest Provisions. Interest on the outstanding principal amount of the
Loans shall accrue and be payable in accordance with the terms set forth below.



     SECTION 3.2.1 Rates. Subject to Section 2.3.2, pursuant to an appropriately
delivered Borrowing Request or Continuation/Conversion Notice, the Borrower may elect that the
Loans comprising a Borrowing accrue interest at a rate per annum:




     (a) on that portion maintained from time to time as a Base Rate Loan, equal to the sum
of the Alternate Base Rate from time to time in effect plus the Applicable Margin;
provided that, Swing Line Loans shall always accrue interest at the Alternate Base
Rate plus the then effective Applicable Margin for Revolving Loans maintained as
Base Rate Loans; and




     (b) on that portion maintained as a LIBO Rate Loan, during each Interest Period
applicable thereto, equal to the sum of the LIBO Rate (Reserve Adjusted) plus the Applicable
Margin.


All LIBO Rate Loans shall bear interest from and including the first day of the applicable Interest
Period to (but not including) the last day of such Interest Period at the interest rate determined
as applicable to such LIBO Rate Loan.




     SECTION 3.2.2 Post-Default Rates. If all or any portion of the Obligations shall not
be paid when due (whether at the Stated Maturity, by acceleration or otherwise), the Borrower shall
pay, but only to the extent permitted by law, interest (after as well as before judgment) on all
such unpaid Obligations at a rate per annum equal to (a) in the case of principal on any Loan, the
rate of interest that otherwise would be applicable to such Loan plus 2% per annum; and (b)
in the case of overdue interest, fees, and other monetary Obligations, the Alternate Base Rate from
time to time in effect, plus the Applicable Margin for the New Term Loans accruing interest at the
Alternate Base Rate, plus 2% per annum.



     SECTION 3.2.3 Payment Dates. Interest accrued on each Loan shall be payable, without
duplication:




     (a) on the Stated Maturity Date therefor;



47









 






     (b) on the date of any payment or prepayment, in whole or in part, of principal
outstanding on such Loan on the principal amount so paid or prepaid;




     (c) with respect to Base Rate Loans, on each Quarterly Payment Date occurring after the
Restatement Effective Date;




     (d) with respect to LIBO Rate Loans, on the last day of each applicable Interest Period
(and, if such Interest Period shall exceed three months, on the date occurring on each
three-month interval occurring after the first day of such Interest Period);




     (e) with respect to any Base Rate Loans converted into LIBO Rate Loans on a day when
interest would not otherwise have been payable pursuant to clause (c), on the date
of such conversion; and




     (f) on that portion of any Loans the Stated Maturity Date of which is accelerated
pursuant to Section 8.2 or Section 8.3, immediately upon such acceleration.


Interest accrued on Loans or other monetary Obligations after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise) shall be payable upon
demand.




               SECTION 3.3 Fees. The Borrower agrees to pay the fees set forth below. All such fees
shall be non-refundable when earned and paid.



     SECTION 3.3.1 Commitment Fee. The Borrower agrees to pay to the Administrative Agent
for the account of each Non-Defaulting Lender, for the period (including any portion thereof when
its Revolving Loan Commitments are suspended by reason of the Borrower’s inability to satisfy any
condition of Article V) commencing on the Restatement Effective Date and continuing through
the Revolving Loan Commitment Termination Date, a commitment fee in an amount equal to the
Applicable Commitment Fee Margin, in each case on such Revolving Loan Lender’s Revolving Loan
Percentage of the sum of the average daily unused portion of the Revolving Loan Commitment Amount
(net of Letter of Credit Outstandings). All commitment fees payable pursuant to this Section shall
be calculated on a year comprised of 360 days and payable by the Borrower in arrears on each
Quarterly Payment Date, commencing with the first Quarterly Payment Date following the Restatement
Effective Date, and on the Revolving Loan Commitment Termination Date. The making of Swing Line
Loans shall not constitute usage of the Revolving Loan Commitment with respect to the calculation
of commitment fees to be paid by the Borrower to the Revolving Loan Lenders.



     SECTION 3.3.2 Agents’ Fees. The Borrower agrees to pay to each of the Agents the fees
in the amounts and on the dates set forth in any fee agreements with any of the Agents and to
perform any other obligations contained therein.



     SECTION 3.3.3 Letter of Credit Fee. The Borrower agrees to pay to the Administrative
Agent, for the pro rata account of the applicable Issuer and each Revolving Loan
Lender, a Letter of Credit fee in a per annum amount equal to the then effective Applicable Margin
for Revolving Loans maintained as LIBO Rate Loans, multiplied by the average daily



48









 




Stated Amount of each such Letter of Credit, such fees being payable quarterly in arrears on
each Quarterly Payment Date following the date of issuance of each Letter of Credit and on the
Revolving Loan Commitment Termination Date. The Borrower further agrees to pay to the applicable
Issuer, quarterly in arrears on each Quarterly Payment Date, a fronting fee of 0.25% per annum on
the average daily Stated Amount of each such Letter of Credit and such other reasonable fees and
charges in connection with the issuance, negotiation, settlement, amendment and processing of each
Letter of Credit as agreed to by the Borrower and such Issuer.




     SECTION 3.3.4 Open Account Agreement Payments. Each Open Account Discount Purchaser
agrees to pay (and in the case of any Open Account Discount Purchaser that is an affiliate of a
Lender, such Lender agrees to cause such Open Account Discount Purchaser to pay) to the
Administrative Agent, for the pro rata account of each Revolving Loan Lender, an
amount with respect to any Open Account Paying Agreement to which it is a party equal to, on a per
annum basis, the then effective Applicable Margin for Revolving Loans maintained as LIBO Rate Loans
multiplied by the aggregate amount of OA Payment Obligations actually paid to such Open Account
Discount Purchaser by the relevant Obligor under the relevant Open Account Paying Agreement, such
amounts being payable quarterly in arrears on each Quarterly Payment Date following the date of the
entry into such Open Account Discount Agreement and on the Revolving Loan Commitment Termination
Date.



ARTICLE IV

CERTAIN LIBO RATE AND OTHER PROVISIONS




               SECTION 4.1 LIBO Rate Lending Unlawful. If any Lender shall determine (which
determination shall, upon notice thereof to the Borrower and the Administrative Agent, constitute
prima facie evidence thereof and shall be binding on the Borrower absent manifest error) that the
introduction of or any change in or in the interpretation of any law makes it unlawful, or any
Governmental Authority asserts that it is unlawful, for such Lender to make or continue any Loan
as, or to convert any Loan into, a LIBO Rate Loan, the obligations of such Lender to make, continue
or convert any such LIBO Rate Loan shall, upon such determination, forthwith be suspended until
such Lender shall notify the Administrative Agent that the circumstances causing such suspension no
longer exist, and all outstanding LIBO Rate Loans payable to such Lender shall automatically
convert into Base Rate Loans at the end of the then current Interest Periods with respect thereto
or sooner, if required by such law or assertion.



               SECTION 4.2 Deposits Unavailable. If the Administrative Agent shall have determined
that




     (a) Dollar deposits in the relevant amount and for the relevant Interest Period are not
available to it in its relevant market; or




     (b) by reason of circumstances affecting it’s relevant market, adequate means do not
exist for ascertaining the interest rate applicable hereunder to LIBO Rate Loans;



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then, upon notice from the Administrative Agent to the Borrower and the Lenders, the obligations of
all Lenders under Section 2.3 and Section 2.4 to make or continue any Loans as, or
to convert any Loans into, LIBO Rate Loans shall forthwith be suspended until the Administrative
Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no
longer exist.




               SECTION 4.3 Increased LIBO Rate Loan Costs, etc. The Borrower agrees to reimburse
each Lender and each Issuer for any increase in the cost to such Lender or Issuer of, or any
reduction in the amount of any sum receivable by such Secured Party in respect of, such Secured
Party’s Commitments and the making of Credit Extensions hereunder (including the making, continuing
or maintaining (or of its obligation to make or continue) any Loans as, or of converting (or of its
obligation to convert) any Loans into, LIBO Rate Loans) that arise in connection with any change
in, or the introduction, adoption, effectiveness, interpretation, reinterpretation or phase-in
after the Restatement Effective Date of, any law or regulation, directive, guideline, decision or
request (whether or not having the force of law) of any Governmental Authority, except for such
changes with respect to increased capital costs and Taxes which are governed by Sections 4.5 and
4.6, respectively. Each affected Secured Party shall promptly notify the Administrative Agent and
the Borrower in writing of the occurrence of any such event, stating the reasons therefor and the
additional amount required fully to compensate such Secured Party for such increased cost or
reduced amount. Such additional amounts shall be payable by the Borrower directly to such Secured
Party within five Business Days of its receipt of such notice, and such notice shall, in the
absence of manifest error, constitute prima facie evidence thereof and shall be binding on the
Borrower.



               SECTION 4.4 Funding Losses. In the event any Lender shall incur any actual loss or
expense (including any actual loss or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by such Lender (if any) to make or continue any portion of the
principal amount of any Loan as, or to convert any portion of the principal amount of any Loan
into, a LIBO Rate Loan) as a result of




     (a) any conversion or repayment or prepayment of the principal amount of any LIBO Rate
Loan on a date other than the scheduled last day of the Interest Period applicable thereto,
whether pursuant to Article III or otherwise;




     (b) any Loans not being made continued or converted as LIBO Rate Loans in accordance
with the Borrowing Request or other notice therefor;




     (c) any Loans not being continued as, or converted into, LIBO Rate Loans in accordance
with the Continuation/Conversion Notice therefor; or




     (d) the assignment of any LIBO Rate Loan other than on the last day of an Interest
Period therefor as a result of a request by the Borrower pursuant to Section 4.11;


then, upon the written notice of such Lender to the Borrower (with a copy to the Administrative
Agent), the Borrower shall, within five days of its receipt thereof, pay directly to such Lender
such amount as will (in the reasonable determination of such Lender) reimburse such Lender for


50









 






such actual loss or expense. Such written notice shall, in the absence of manifest error,
constitute prima facie evidence thereof and shall be binding on the Borrower.




               SECTION 4.5 Increased Capital Costs. If any change in, or the introduction, adoption,
effectiveness, interpretation, reinterpretation or phase-in of, any law or regulation, directive,
guideline, decision or request (whether or not having the force of law) of any Governmental
Authority after the Restatement Effective Date affects or would affect the amount of capital
required or expected to be maintained by any Secured Party or any Person controlling such Secured
Party, and such Secured Party determines (in good faith but in its sole and absolute discretion)
that as a result thereof the rate of return on its or such controlling Person’s capital as a
consequence of the Commitments or the Credit Extensions made, or the Letters of Credit participated
in, by such Secured Party is reduced to a level below that which such Secured Party or such
controlling Person could have achieved but for the occurrence of any such circumstance, then upon
notice (together with reasonably detailed supporting documentation) from time to time by such
Secured Party to the Borrower, the Borrower shall within five Business Days following receipt of
such notice pay directly to such Secured Party additional amounts sufficient to compensate such
Secured Party or such controlling Person for such reduction in rate of return. A statement in
reasonable detail of such Secured Party as to any such additional amount or amounts shall, in the
absence of manifest error, constitute prima facie evidence thereof and shall be binding on the
Borrower. In determining such amount, such Secured Party may use any method of averaging and
attribution that it (in its sole and absolute discretion) shall deem applicable.



               SECTION 4.6 Taxes. The Borrower covenants and agrees as follows with respect to
Taxes.



     (a) Any and all payments by the Borrower under each Loan Document shall be made without
setoff, counterclaim or other defense, and free and clear of, and without deduction or withholding
for or on account of, any Taxes. In the event that any Taxes are imposed and required to be
deducted or withheld from any payment required to be made by any Obligor to or on behalf of any
Secured Party under any Loan Document, then:




     (i) subject to clause (f), if such Taxes are Non-Excluded Taxes, the amount of
such payment shall be increased as may be necessary so that such payment is made, after
withholding or deduction for or on account of such Taxes, in an amount that is not less than
the amount provided for in such Loan Document; and




     (ii) the Borrower shall withhold the full amount of such Taxes from such payment (as
increased pursuant to clause (a)(i)) and shall pay such amount to the Governmental
Authority imposing such Taxes in accordance with applicable law.



     (b) In addition, the Borrower shall pay all Other Taxes imposed to the relevant Governmental
Authority imposing such Other Taxes in accordance with applicable law.



     (c) Upon the written request of the Administrative Agent, as promptly as practicable after the
payment of any Taxes or Other Taxes, and in any event within 45 days of any such written request,
the Borrower shall furnish to the Administrative Agent a copy of an official



51









 




receipt (or a certified copy thereof) evidencing the payment of such Taxes or Other Taxes.
The Administrative Agent shall make copies thereof available to any Lender upon request therefor.




     (d) Subject to clause (f), the Borrower shall indemnify each Secured Party for any
Non-Excluded Taxes and Other Taxes levied, imposed or assessed on (and whether or not paid directly
by) such Secured Party whether or not such Non-Excluded Taxes or Other Taxes are correctly or
legally asserted by the relevant Governmental Authority; provided that if the Borrower
reasonably believes that such Taxes were not correctly or legally asserted, such Secured Party will
use reasonable efforts to cooperate with the Borrower to obtain a refund of such Taxes so long as
such efforts would not, in the sole determination of such Secured Party, result in any additional
costs, expenses or risks or be otherwise disadvantageous to it. Promptly upon having knowledge
that any such Non-Excluded Taxes or Other Taxes have been levied, imposed or assessed, and promptly
upon notice thereof by any Secured Party, the Borrower shall pay such Non-Excluded Taxes or Other
Taxes directly to the relevant Governmental Authority (provided that, no Secured Party
shall be under any obligation to provide any such notice to the Borrower). In addition, the
Borrower shall indemnify each Secured Party for any incremental Taxes that may become payable by
such Secured Party as a result of any failure of the Borrower to pay any Taxes when due to the
appropriate Governmental Authority or to deliver to the Administrative Agent, pursuant to
clause (c), documentation evidencing the payment of Taxes or Other Taxes (other than
incidental taxes resulting directly as a result of the willful misconduct or gross negligence of
the Administrative Agent or a respective Secured Party); provided that if the Secured Party
or Administrative Agent, as applicable, fails to give notice to the Borrower of the imposition of
any Non-Excluded Taxes or Other Taxes within 120 days following its receipt of actual written
notice of the imposition of such Non-Excluded Taxes or Other Taxes, there will be no obligation for
the Borrower to pay interest or penalties attributable to the period beginning after such 120th day
and ending seven days after the Borrower receives notice from the Secured Party or the
Administrative Agent as applicable. With respect to indemnification for Non-Excluded Taxes and
Other Taxes actually paid by any Secured Party or the indemnification provided in the immediately
preceding sentence, such indemnification shall be made within 30 days after the date such Secured
Party makes written demand therefor (together with supporting documentation in reasonable detail).
The Borrower acknowledges that any payment made to any Secured Party or to any Governmental
Authority in respect of the indemnification obligations of the Borrower provided in this clause
shall constitute a payment in respect of which the provisions of clause (a) and this clause
shall apply.



     (e) Each Non-U.S. Lender, on or prior to the date on which such Non-U.S. Lender becomes a
Lender hereunder (and from time to time thereafter upon the request of the Borrower or the
Administrative Agent, but only for so long as such non-U.S. Lender is legally entitled to do so),
shall deliver to the Borrower and the Administrative Agent either (i) two duly completed copies of
either (x) Internal Revenue Service Form W-8BEN claiming eligibility of the Non-U.S. Lender for
benefits of an income tax treaty to which the United States is a party or (y) Internal Revenue
Service Form W-8ECI, or in either case an applicable successor form; or (ii) in the case of a
Non-U.S. Lender that is not legally entitled to deliver either form listed in
clause (e)(i), (x) a certificate to the effect that such Non-U.S. Lender is not (A) a
“bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of
the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (C) a controlled foreign
corporation receiving interest from a related person within the meaning of Section 881(c)(3)(C) of
the Code (referred



52









 




to as an “Exemption Certificate”) and (y) two duly completed copies of Internal
Revenue Service Form W-8BEN or applicable successor form.




     (f) Any Lender that is a United States Person, as defined in Section 7701(a)(30) of the Code,
shall (unless such Lender may be treated as an exempt recipient based on the indicators described
in Treasury Regulation Section 1.6049-4(c)(1)(ii)(A)) deliver to the Borrower and the
Administrative Agent, at the times specified in clause (e), two duly completed copies of Internal
Revenue Service Form W-9, or any successor form that such Person is entitled to provide at such
time, in order to qualify for an exemption from United States back-up withholding requirements.



     (g) The Borrower shall not be obligated to pay any additional amounts to any Lender pursuant
to clause (a)(i), or to indemnify any Lender pursuant to clause (d), in respect of
United States federal withholding taxes to the extent imposed as a result of (i) the failure of
such Lender to deliver to the Borrower the form or forms and/or an Exemption Certificate, as
applicable to such Lender, pursuant to clause (e) or clause (f), (ii) such form or
forms and/or Exemption Certificate not establishing a complete exemption from U.S. federal
withholding tax or the information or certifications made therein by the Lender being untrue or
inaccurate on the date delivered in any material respect, or (iii) the Lender designating a
successor lending office at which it maintains its Loans which has the effect of causing such
Lender to become obligated for tax payments in excess of those in effect immediately prior to such
designation; provided that the Borrower shall be obligated to pay additional amounts to any
such Lender pursuant to clause (a)(i) and to indemnify any such Lender pursuant to
clause (d), in respect of United States federal withholding taxes if (i) any such failure
to deliver a form or forms or an Exemption Certificate or the failure of such form or forms or
Exemption Certificate to establish a complete exemption from U.S. federal withholding tax or
inaccuracy or untruth contained therein resulted from a change in any applicable statute, treaty,
regulation or other applicable law or any interpretation of any of the foregoing occurring after
the Restatement Effective Date, which change rendered such Lender no longer legally entitled to
deliver such form or forms or Exemption Certificate or otherwise ineligible for a complete
exemption from U.S. federal withholding tax, or rendered the information or certifications made in
such form or forms or Exemption Certificate untrue or inaccurate in a material respect, (ii) the
redesignation of the Lender’s lending office was made at the request of the Borrower or (iii) the
obligation to pay any additional amounts to any such Lender pursuant to clause (a)(i) or to
indemnify any such Lender pursuant to clause (d) is with respect to an Eligible Assignee
that becomes an assignee Lender as a result of an assignment made at the request of the Borrower.



     (h) If the Administrative Agent or a Lender determines in its sole, good faith discretion that
amounts recovered or refunded are a recovery or refund of any Non-Excluded Taxes or Other Taxes as
to which it has been indemnified by the Borrower pursuant to clause (d), or to which the
Borrower has paid additional amounts pursuant to clause (a)(i), it shall pay over such
refund to the Borrower (but only to the extent of indemnity payments made, or additional amounts
paid, by the Borrower under this Section 4.6 with respect to the Non-Excluded Taxes or
Other Taxes that give rise to such refund), net of all reasonable out-of-pocket expenses of the
Administrative Agent or such Lender and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund); provided that in no event
will any Lender be required to pay an amount to the Borrower that would place such Lender in a less



53









 




favorable net after-tax position than such Lender would have been in if the additional amounts
giving rise to such refund of any Non-Excluded Taxes or Other Taxes had never been paid, and
provided further that the Borrower, upon the written request of the Administrative
Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties,
interest, or other charges imposed by the relevant Governmental Authority unless the Governmental
Authority assessed such penalties, interest, or other charges due to the gross negligence or
willful misconduct of the Administrative Agent or such Lender) to the Administrative Agent or such
Lender in the event the Administrative Agent or such Lender is required to repay such refund to the
Governmental Authority. Nothing in this Section 4.6(h) shall require any Lender to make
available its tax returns or any other information related to its taxes that it deems confidential.




               SECTION 4.7 Payments, Computations; Proceeds of Collateral, etc. (a) Unless
otherwise expressly provided in a Loan Document, all reductions of the Revolving Loan Commitments
and all payments by the Borrower pursuant to each Loan Document shall be made by the Borrower to
the Administrative Agent for the pro rata account of the Secured Parties entitled to receive such
reduction or payment. All payments shall be made without setoff, deduction or counterclaim not
later than 11:00 a.m. on the date due in same day or immediately available funds to such account as
the Administrative Agent (or in the case of a reimbursement obligation, the applicable Issuer)
shall specify from time to time by notice to the Borrower. Funds received after that time shall be
deemed to have been received by the Administrative Agent on the next succeeding Business Day. The
Administrative Agent shall promptly remit in same day funds to each Secured Party its share, if
any, of such payments received by the Administrative Agent for the account of such Secured Party.
All interest (including interest on LIBO Rate Loans) and fees shall be computed on the basis of the
actual number of days (including the first day but excluding the last day) occurring during the
period for which such interest or fee is payable over a year comprised of 360 days (or, in the case
of interest on a Base Rate Loan (calculated at other than the Federal Funds Rate), 365 days or, if
appropriate, 366 days). Payments due on other than a Business Day shall be made on the next
succeeding Business Day and such extension of time shall be included in computing interest and fees
in connection with that payment.



     (b) All amounts received as a result of the exercise of remedies under the Loan Documents
(including from the proceeds of collateral securing the Obligations) or under applicable law shall
be applied upon receipt to the Obligations as follows: (i) first, to the payment of all Obligations
owing to the Agents, in their capacity as Agents (including the fees and expenses of counsel to the
Agents), (ii) second, after payment in full in cash of the amounts specified in
clause (b)(i), to the ratable payment of all interest (including interest accruing after
the commencement of a proceeding in bankruptcy, insolvency or similar law, whether or not permitted
as a claim under such law) and fees owing under the Loan Documents (including all amounts owing
under Section 3.3.4), and all costs and expenses owing to the Secured Parties pursuant to the terms
of the Loan Documents, until paid in full in cash, (iii) third, after payment in full in cash of
the amounts specified in clauses (b)(i) and (b)(ii), to the ratable payment of the
principal amount of the Loans then outstanding, the aggregate Reimbursement Obligations then owing,
the aggregate amount of OA Payment Obligations then owing, the Cash Collateralization for
contingent liabilities under Letter of Credit Outstandings, amounts owing to Secured Parties under
Rate Protection Agreements and the aggregate amount of Cash Management Obligations then owing, (iv)
fourth, after payment in full in cash of the amounts specified in clauses (b)(i)



54









 




through (b)(iii), to the ratable payment of all other Obligations owing to the Secured
Parties, and (v) fifth, after payment in full in cash of the amounts specified in
clauses (b)(i) through (b)(iv), and following the Termination Date, to each
applicable Obligor or any other Person lawfully entitled to receive such surplus. For purposes of
clause (b)(iii), the “amounts owing” at any time to any Secured Party with respect to a
Rate Protection Agreement to which such Secured Party is a party shall be determined at such time
by the terms of such Rate Protection Agreement or, if not set forth therein, in accordance with the
customary methods of calculating credit exposure under similar arrangements by the counterparty to
such arrangements, taking into account potential interest rate (or, if applicable, currency or
commodities) movements and the respective termination provisions and notional principal amount and
term of such Rate Protection Agreement.




               SECTION 4.8 Sharing of Payments. If any Secured Party shall obtain any payment or
other recovery (whether voluntary, involuntary, by application of setoff or otherwise) on account
of any Credit Extension or Reimbursement Obligation (other than pursuant to the terms of
Sections 4.3, 4.4, 4.5 or 4.6) in excess of its pro
rata share of payments obtained by all Secured Parties, such Secured Party shall purchase
(in Dollars) from the other Secured Parties such participations in Credit Extensions made by them
as shall be necessary to cause such purchasing Secured Party to share the excess payment or other
recovery ratably (to the extent such other Secured Parties were entitled to receive a portion of
such payment or recovery) with each of them; provided that, if all or any portion of the
excess payment or other recovery is thereafter recovered from such purchasing Secured Party, the
purchase shall be rescinded and each Secured Party which has sold a participation to the purchasing
Secured Party shall repay to the purchasing Secured Party the purchase price to the ratable extent
of such recovery together with an amount equal to such selling Secured Party’s ratable share
(according to the proportion of (a) the amount of such selling Secured Party’s required repayment
to the purchasing Secured Party to (b) total amount so recovered from the purchasing
Secured Party) of any interest or other amount paid or payable by the purchasing Secured Party in
respect of the total amount so recovered. The Borrower agrees that any Secured Party purchasing a
participation from another Secured Party pursuant to this Section may, to the fullest extent
permitted by law, exercise all its rights of payment (including pursuant to Section 4.9)
with respect to such participation as fully as if such Secured Party were the direct creditor of
the Borrower in the amount of such participation. If under any applicable bankruptcy, insolvency
or other similar law any Secured Party receives a secured claim in lieu of a setoff to which this
Section applies, such Secured Party shall, to the extent practicable, exercise its rights in
respect of such secured claim in a manner consistent with the rights of the Secured Parties
entitled under this Section to share in the benefits of any recovery on such secured claim.



               SECTION 4.9 Setoff. Each Secured Party shall, upon the occurrence and during the
continuance of any Event of Default described in clauses (a) through (d) of
Section 8.1.9 or, with the consent of the Required Lenders, upon the occurrence and during
the continuance of any other Event of Default, have the right to appropriate and apply to the
payment of the Obligations owing to it (if then due and payable), and (as security for such
Obligations) the Borrower hereby grants to each Secured Party a continuing security interest in,
any and all balances, credits, deposits, accounts or moneys of the Borrower then or thereafter
maintained with such Secured Party (other than payroll, trust or tax accounts); provided
that, any such appropriation and application shall be subject to the provisions of Section
4.8. Each



55









 




Secured Party agrees promptly to notify the Borrower and the Administrative Agent after any
such appropriation and application made by such Secured Party; provided that, the failure
to give such notice shall not affect the validity of such setoff and application. The rights of
each Secured Party under this Section are in addition to other rights and remedies (including other
rights of setoff under applicable law or otherwise) which such Secured Party may have.




               SECTION 4.10 Mitigation. Each Lender agrees that if it makes any demand for payment
under Sections 4.3 or 4.6, it will use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions and so long as such efforts would not be
disadvantageous to it, as determined in its sole discretion) to designate a different lending
office if the making of such a designation would reduce or obviate the need for the Borrower to
make payments under Section 4.3 or 4.6.



               SECTION 4.11 Removal of Lenders. If any Lender (an “Affected Lender”) (i)
fails to consent to an election, consent, amendment, waiver or other modification to this Agreement
or other Loan Document (a “Non-Consenting Lender”) that requires the consent of a greater
percentage of the Lenders than the Required Lenders and such election, consent, amendment, waiver
or other modification is otherwise consented to by Non-Defaulting Lenders holding more than 50% of
the Total Exposure Amount of all Non-Defaulting Lenders, (ii) makes a demand upon the Borrower for
(or if the Borrower is otherwise required to pay) amounts pursuant to Section 4.3,
4.5 or 4.6, or gives notice pursuant to Section 4.1 requiring a conversion
of such Affected Lender’s LIBO Rate Loans to Base Rate Loans or any change in the basis upon which
interest is to accrue in respect of such Affected Lender’s LIBO Rate Loans or suspending such
Lender’s obligation to make Loans as, or to convert Loans into, LIBO Rate Loans or (iii) becomes a
Defaulting Lender the Borrower may, at its sole cost and expense, within 90 days of receipt by the
Borrower of such demand or notice (or the occurrence of such other event causing Borrower to be
required to pay such compensation) or within 90 days of such Lender becoming a Non-Consenting
Lender or a Defaulting Lender, as the case may be, give notice (a “Replacement Notice”) in
writing to the Administrative Agent and such Affected Lender of its intention to cause such
Affected Lender to sell all or any portion of its Loans, Commitments and/or Notes to another
financial institution or other Person (a “Replacement Lender”) designated in such
Replacement Notice; provided that no Replacement Notice may be given by the Borrower if (A)
such replacement conflicts with any applicable law or regulation or (B) prior to any such
replacement, such Lender shall have taken any necessary action under Section 4.5 or
4.6 (if applicable) so as to eliminate the continued need for payment of amounts owing
pursuant to Section 4.5 or 4.6 and withdrew its request for compensation under
Section 4.3, 4.5 or 4.6. If the Administrative Agent shall, in the
exercise of its reasonable discretion and within 30 days of its receipt of such Replacement Notice,
notify the Borrower and such Affected Lender in writing that the Replacement Lender is reasonably
satisfactory to the Administrative Agent (such consent not being required where the Replacement
Lender is already a Lender), then such Affected Lender shall, subject to the payment of any amounts
due pursuant to Section 4.4, assign, in accordance with Section 10.11, the portion
of its Commitments, Loans, Notes (if any) and other rights and obligations under this Agreement and
all other Loan Documents (including Reimbursement Obligations, if applicable) designated in the
Replacement Notice to such Replacement Lender; provided that (A) such assignment shall be
without recourse, representation or warranty and shall be on terms and conditions reasonably
satisfactory to such Affected Lender and such Replacement Lender, and (B) the purchase price paid
by such



56









 




Replacement Lender shall be in the amount of such Affected Lender’s Loans designated in the
Replacement Notice and/or its Percentage of outstanding Reimbursement Obligations, as applicable,
together with all accrued and unpaid interest and fees in respect thereof, plus all other amounts
(including the amounts demanded and unreimbursed under Sections 4.3, 4.5 and
4.6), owing to such Affected Lender hereunder. Upon the effective date of an assignment
described above, the Replacement Lender shall become a “Lender” for all purposes under the Loan
Documents. Each Lender hereby grants to the Administrative Agent an irrevocable power of attorney
(which power is coupled with an interest) to execute and deliver, on behalf of such Lender as
assignor, any assignment agreement necessary to effectuate any assignment of such Lender’s
interests hereunder in the circumstances contemplated by this Section.




               SECTION 4.12 Limitation on Additional Amounts, etc. Notwithstanding anything to the
contrary contained in Sections 4.3 or 4.5 of this Agreement, unless a Lender gives
notice to the Borrower that it is obligated to pay an amount under any such Section within 90 days
after the later of (i) the date the Lender incurs the respective increased costs, loss, expense or
liability, reduction in amounts received or receivable or reduction in return on capital or (ii)
the date such Lender has actual knowledge of its incurrence of their respective increased costs,
loss, expense or liability, reductions in amounts received or receivable or reduction in return on
capital, then such Lender shall only be entitled to be compensated for such amount by the Borrower
pursuant to Sections 4.3 or 4.5, as the case may be, to the extent the costs, loss,
expense or liability, reduction in amounts received or receivable or reduction in return on capital
are incurred or suffered on or after the date which occurs 90 days prior to such Lender giving
notice to the Borrower that it is obligated to pay the respective amounts pursuant to Sections
4.3 or 4.5, as the case may be. This Section shall have no applicability to any
Section of this Agreement other than Sections 4.3 and 4.5.



               SECTION 4.13 Defaulting Lenders. Notwithstanding any provision of this Agreement to
the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply
for so long as such Lender is a Defaulting Lender:




     (a) if any Swing Line Exposure, Letter of Credit Outstandings or any OA Payment
Outstandings exists at the time a Lender becomes a Defaulting Lender then:




     (i) all or any part of such Swing Line Exposure, Letter of Credit Outstandings
and OA Payment Outstandings shall be reallocated among the Non Defaulting Lenders in
accordance with their respective Revolving Loan Percentages but only to the extent
(x) the sum of all Non Defaulting Lenders’ Revolving Exposures plus such
Defaulting Lender’s Revolving Loan Percentage of (A) Swing Line Exposure, (B) Letter
of Credit Outstandings and (C) OA Payment Outstandings does not exceed the total of
all Non Defaulting Lenders’ Commitments and (y) the conditions set forth in
Section 5.2 are satisfied at such time; and




     (ii) if the reallocation described in clause (i) above cannot, or can only
partially, be effected, the Borrower shall within one Business Day following notice
by the Administrative Agent (x) first, prepay such Swing Line Exposure and (y)
second, Cash Collateralize such Defaulting Lender’s Revolving Loan



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Percentage of the Letter of Credit Outstandings and OA Payment Outstandings
(after giving effect to any partial reallocation pursuant to clause (i) above) for
so long as such Letter of Credit Outstandings is outstanding.




     (iii) if the Borrower Cash Collateralizes any portion of such Defaulting
Lender’s Revolving Loan Percentage of the Letter of Credit Outstandings or OA
Payment Outstandings pursuant to this paragraph (a), the Borrower shall not be
required to pay any fees to such Defaulting Lender pursuant to Section 3.3.3
or Section 3.3.4 with respect to such Defaulting Lender’s Revolving Loan
Percentage of the Letter of Credit Outstandings and OA Payment Outstandings during
the period such Defaulting Lender’s Revolving Loan Percentage of the Letter of
Credit Outstandings or OA Payment Outstandings is cash collateralized;




     (iv) if the Revolving Loan Percentages of the Letter of Credit Outstandings and
OA Payment Outstandings of the Non Defaulting Lenders is reallocated pursuant to
this paragraph (a), then the fees payable to the Lenders pursuant to Section
3.3.3 and Section 3.3.4 shall be adjusted in accordance with such Non
Defaulting Lenders’ Revolving Loan Percentages; or




     (v) if any Defaulting Lender’s Letter of Credit Outstandings and OA Payment
Outstandings is neither cash collateralized nor reallocated pursuant to this
paragraph (a), then, without prejudice to any rights or remedies of the Issuers or
any Lender hereunder, all Letter of Credit fees and Open Account Agreement payments
payable under Section 3.3.3 and Section 3.3.4 with respect to such
Defaulting Lender’s Revolving Loan Percentage of the Letter of Credit Outstandings
and OA Payment Outstandings shall be payable to the Issuer or applicable Open
Account Discount Purchaser, as the case may be, until such Letter of Credit
Outstandings and OA Payment Outstandings are cash collateralized and/or reallocated.




     (b) so long as any Lender is a Defaulting Lender, the Swing Line Lender shall not be
required to fund any Swing Line Loans and the Issuer shall not be required to issue, amend
or increase any Letter of Credit, unless it is satisfied that the related exposure will be
100% covered by the Commitments of the Non Defaulting Lenders and/or cash collateral will
be provided by the Borrower in accordance with paragraph (a) of this Section, and
participating interests in any such newly issued or increased Letter of Credit or newly made
Swing Line Loan shall be allocated among Non Defaulting Lenders in a manner consistent with
clause (i) of paragraph (a) of this Section (and Defaulting Lenders shall not participate
therein); and




     (c) any amount otherwise payable to such Defaulting Lender hereunder (whether on
account of principal, interest, fees or otherwise and including any amount that would
otherwise be payable to such Defaulting Lender pursuant to Section 4.8 but excluding
Section 4.11) shall, in lieu of being distributed to such Defaulting Lender, be
retained by the Administrative Agent in a segregated account and, subject to any applicable
requirements of law, be applied at such time or times as may be determined by the
Administrative Agent (i) first, to the payment of any amounts owing by such



58









 







Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata,
to the payment of any amounts owing by such Defaulting Lender to the Issuer or Swing Line
Lender or any Open Account Discount Purchaser hereunder, (iii) third, if so
determined by the Administrative Agent or requested by the Issuer or Swing Line Lender or
any Open Account Discount Purchaser, held in such account as cash collateral for future
funding obligations of the Defaulting Lender in respect of any existing or future
participating interest in any Swing Line Loan or Letter of Credit or Open Account Discount
Agreement, (iv) fourth, to the funding of any Loan in respect of which such
Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as
determined by the Administrative Agent, (v) fifth, if so determined by the
Administrative Agent and the Borrower, held in such account as cash collateral for future
funding obligations of the Defaulting Lender in respect of any Loans under this Agreement,
(vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Bank or
Swing Line Lender or Open Account Discount Purchaser as a result of any judgment of a court
of competent jurisdiction obtained by any Lender or such Issuer or Swing Line Lender or Open
Account Discount Purchaser against such Defaulting Lender as a result of such Defaulting
Lender’s breach of its obligations under this Agreement, (vii) seventh, to the
payment of any amounts owing to the Borrower as a result of any judgment of a court of
competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result
of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii)
eighth, to such Defaulting Lender or as otherwise directed by a court of competent
jurisdiction; provided, with respect to this clause (viii), that if such payment is
(x) a prepayment of the principal amount of any Loans or Reimbursement Obligations in which
a Defaulting Lender has funded its participation obligations and (y) made at a time when the
conditions set forth in Section 5.02 are satisfied, such payment shall be applied solely to
prepay the Loans of, and Reimbursement Obligations owed to, all Non Defaulting Lenders pro
rata prior to being applied to the prepayment of any Loans, or Reimbursement Obligations
owed to, any Defaulting Lender.




     (d) In the event that the Administrative Agent, the Borrower, the Issuer, the Swing
Line Lender and any Open Account Discount Purchaser each agrees that a Defaulting Lender has
adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the
Revolving Loan Percentages of the Non Defaulting Lenders shall be readjusted to reflect the
inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par
such of the Loans of the other Lenders as the Administrative Agent shall determine may be
necessary in order for such Lender to hold such Loans in accordance with its Revolving Loan
Percentage.



ARTICLE V

CONDITIONS TO CREDIT EXTENSIONS




               SECTION 5.1 Initial Credit Extension. Subject to Section 7.1.11, the
obligations of the Lenders to make the initial Credit Extension shall be subject to the prior or
concurrent satisfaction (or waiver) in all material respects of each of the conditions precedent
set forth in this Article.



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     SECTION 5.1.1 Resolutions, etc. The Agents shall have received from each Obligor, as
applicable, (i) a copy of a good standing certificate, dated a date reasonably close to the
Restatement Effective Date, for each such Obligor from its jurisdiction of organization and (ii) a
certificate, dated as of the Restatement Effective Date, duly executed and delivered by such
Obligor’s Secretary or Assistant Secretary, managing member or general partner, as applicable, as
to




     (a) resolutions of each such Obligor’s Board of Directors (or other managing body, in
the case of other than a corporation) then in full force and effect authorizing, to the
extent relevant, all aspects of the Transaction applicable to such Obligor and the
execution, delivery and performance of each Loan Document to be executed by such Obligor and
the transactions contemplated hereby and thereby;




     (b) the incumbency and signatures of those of its officers, managing member or general
partner, as applicable, authorized to act with respect to each Loan Document to be executed
by such Obligor; and




     (c) the full force and validity of each Organic Document of such Obligor and copies
thereof;


upon which certificates each Secured Party may conclusively rely until it shall have received a
further certificate of the Secretary, Assistant Secretary, managing member or general partner, as
applicable, of any such Obligor canceling or amending the prior certificate of such Obligor.




     SECTION 5.1.2 Closing Date Certificate. The Agents shall have received the Closing
Date Certificate, dated as of the Restatement Effective Date and duly executed and delivered by an
Authorized Officer of the Borrower, in which certificate the Borrower shall agree and acknowledge
and certify that the statements made therein are, true and correct representations and warranties
of the Borrower as of such date, and, at the time each such certificate is delivered, such
statements shall in fact be true and correct. All documents and agreements (including Transaction
Documents) required to be appended to the Closing Date Certificate shall be in form and substance
reasonably satisfactory to the Lead Arrangers, shall have been executed and delivered by the
requisite parties, and shall be in full force and effect.



     SECTION 5.1.3 Consummation of Transaction. The Agents shall have received evidence
reasonably satisfactory to it that all actions necessary to consummate the Transaction shall have
been taken in accordance in all material respects with all applicable law and in accordance with
the terms of each applicable Transaction Document, without amendment or waiver of any material
provision thereof, unless approved by the Lead Arrangers in their reasonable discretion.



     SECTION 5.1.4 PATRIOT Act Disclosures. Within five Business Days’ prior to the
Restatement Effective Date, the Lenders or the Agents shall have received copies of all PATRIOT Act
Disclosures as reasonably requested by the Lenders or the Lead Arrangers.



     SECTION 5.1.5 Delivery of Notes. The Administrative Agent shall have received, for
the account of each Lender that has requested a Note, such Lender’s Notes duly executed and
delivered by an Authorized Officer of the Borrower.



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     SECTION 5.1.6 Financial Information, etc. The Agents shall have received,




     (a) audited consolidated balance sheets and related statements of income, stockholders’
equity and cash flows of the Borrower and its Subsidiaries for the stub period of 2006 (from
July 2, 2006 to December 30, 2006) and Fiscal Years 2007 and 2008;




     (b) unaudited consolidated balance sheets and related statements of income,
stockholders’ equity and cash flows for each of the first three Fiscal Quarters of 2008 and
of 2009;




     (c) all other financial statements for completed or pending acquisitions that may be
required under Regulation S-X of the Securities Act of 1933, as amended (“Regulation
S-X”); and




     (d) detailed projected financial statements of the Borrower and its Subsidiaries for
the five Fiscal Years ended after the Restatement Effective Date, which projections shall
include quarterly projections for the first Fiscal Year after the Restatement Effective
Date.



     SECTION 5.1.7 Solvency Certificate. The Agents shall have received a Solvency
Certificate dated the date of the initial Credit Extension, duly executed (and with all schedules
thereto duly completed) and delivered by the chief financial or accounting Authorized Officer of
the Borrower.



     SECTION 5.1.8 Guaranty. The Agents shall have received counterparts of the Guaranty,
dated as of the Restatement Effective Date, duly executed and delivered by an Authorized Officer of
each U.S. Subsidiary.



     SECTION 5.1.9 Security Agreement. The Administrative Agent shall have received
executed counterparts of the Security Agreement, dated as of the Restatement Effective Date, duly
executed, authorized or delivered by each Obligor, as applicable, together with




     (a) certificates (in the case of Capital Securities that are securities (as defined in
the UCC)) evidencing all of the issued and outstanding Capital Securities owned by each
Obligor in its U.S. Subsidiaries and, subject to Section 7.1.11, 65% of the issued
and outstanding Voting Securities (to the extent certificated and permitted by applicable
law to be removed from any particular jurisdiction) of each Foreign Subsidiary (together
with all the issued and outstanding non-voting Capital Securities (to the extent
certificated and permitted by applicable law to be removed from any particular jurisdiction)
of such Foreign Subsidiary) directly owned by each Obligor, which certificates in each case
shall be accompanied by undated instruments of transfer duly executed in blank, or, if any
Capital Securities (in the case of Capital Securities that are uncertificated securities (as
defined in the UCC)), confirmation and evidence reasonably satisfactory to the Lead
Arrangers that the security interest therein has been transferred to and perfected by the
Collateral Agent for the benefit of the Secured Parties in accordance with Articles 8 and 9
of the UCC and all U.S. laws otherwise applicable to the perfection of the pledge of such
Capital Securities;




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     (b) Filing Statements suitable in form and naming each Obligor as a debtor and the
Collateral Agent as the secured party, or other similar instruments or documents to be filed
under the UCC of all jurisdictions as may be necessary or, in the opinion of the Lead
Arrangers, desirable to perfect the security interests of the Collateral Agent pursuant to
the Security Agreement;




     (c) UCC Form UCC-3 termination statements, if any, necessary to release all Liens and
other rights of any Person in any collateral described in any security agreement previously
granted by any Person, together with such other UCC Form UCC-3 termination statements as the
Lead Arrangers may reasonably request from such Obligors; and




     (d) certified copies of UCC Requests for Information or Copies (Form UCC-11), or a
similar search report certified by a party reasonably acceptable to the Lead Arrangers,
dated a date reasonably near to the Closing Date, listing all effective financing statements
which name any Obligor (under its present legal name) as the debtor, together with copies of
such financing statements (none of which shall evidence a Lien on any collateral described
in any Loan Document, other than a Permitted Lien).



     SECTION 5.1.10 Intellectual Property Security Agreements. The Administrative Agent
shall have received a Patent Security Agreement, a Copyright Security Agreement and a Trademark
Security Agreement, as applicable, each dated as of the Closing Date, duly executed and delivered
by each Obligor that, pursuant to the Security Agreement, is required to provide such intellectual
property security agreements to the Collateral Agent.



     SECTION 5.1.11 Filing Agent, etc. All Uniform Commercial Code financing statements or
other similar financing statements and Uniform Commercial Code (Form UCC-3) termination statements
(collectively, the “Filing Statements”) required pursuant to the Loan Documents shall have
been delivered by counsel to the Lead Arrangers to CT Corporation System or another similar filing
service company acceptable to the Lead Arrangers (the “Filing Agent”). The Filing Agent
shall have acknowledged in a writing satisfactory to the Lead Arrangers and their counsel (i) the
Filing Agent’s receipt of all Filing Statements, (ii) that the Filing Statements required pursuant
to the Loan Documents have either been submitted for filing in the appropriate filing offices or
will be submitted for filing in the appropriate offices within ten days following the Restatement
Effective Date and (iii) that the Filing Agent will notify the Agents and their counsel of the
results of such submissions and will provide recorded copies of the same within 30 days following
the Restatement Effective Date.



     SECTION 5.1.12 Insurance. The Collateral Agent shall have received, certificates of
insurance in form and substance reasonably satisfactory to the Collateral Agent, evidencing
coverage required to be maintained pursuant to each Loan Document and naming the Collateral Agent
as loss payee or additional insured, as applicable.



     SECTION 5.1.13 Opinions of Counsel. The Agents shall have received opinions, dated the
Restatement Effective Date and addressed to the Lead Arrangers, the Agents and all Lenders, from



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     (a) Kirkland & Ellis LLP, counsel to the Obligors, in form and substance reasonably
satisfactory to the Lead Arrangers; and




     (b) Maryland counsel to the Borrower, in form and substance, and from counsel,
reasonably satisfactory to the Lead Arrangers.



     SECTION 5.1.14 Closing Fees, Expenses, etc. Each Lead Arranger and each Agent shall
have received for its own account, or for the account of each Lender, as the case may be, all fees,
costs and expenses due and payable pursuant to Sections 3.3 and, if then invoiced,
10.3.



     SECTION 5.1.15 [Reserved].



     SECTION 5.1.16 Litigation. There shall exist no action, suit, investigation or other
proceeding pending or threatened in writing in any court or before any arbitrator or governmental
or regulatory agency or authority that could reasonably be expected to have a Material Adverse
Effect.



     SECTION 5.1.17 Approval. All material and necessary governmental and third party
consents and approvals shall have been obtained (without the imposition of any material and adverse
conditions that are not reasonably acceptable to the Lenders) and shall remain in effect and all
applicable waiting periods shall have expired without any material and adverse action being taken
by any competent authority. The Agents shall be reasonably satisfied that the 2016 Senior Notes
shall be issued and will be in accordance with applicable laws and governmental regulations.



     SECTION 5.1.18 Debt Rating. The Borrower shall have obtained a senior secured debt
rating (of any level) in respect of the Loans from each of S&P and Moody’s, which ratings (of any
level) shall remain in effect on the Restatement Effective Date.



     SECTION 5.1.19 Satisfactory Legal Form. All documents executed or submitted pursuant
hereto by or on behalf of any Obligor on or before the Restatement Effective Date shall be
reasonably satisfactory in form and substance to the Agents, and the Agents shall have received all
information, approvals, opinions, documents or instruments as the Lead Arrangers or their counsel
may reasonably request.



               SECTION 5.2 All Credit Extensions. The obligation of each Lender and each Issuer to
make any Credit Extension shall be subject to the satisfaction of each of the conditions precedent
set forth below.



     SECTION 5.2.1 Compliance with Warranties, No Default, etc. Both before and after
giving effect to any Credit Extension (but, if any Default of the nature referred to in Section
8.1.5 shall have occurred with respect to any other Indebtedness, without giving effect to the
application, directly or indirectly, of the proceeds thereof) the following statements shall be
true and correct:





     (a) the representations and warranties set forth in each Loan Document shall, in each
case, be true and correct in all material respects with the same effect as if then made
(unless stated to relate solely to an earlier date, in which case such representations



63









 






     and warranties shall be true and correct in all material respects as of such earlier
date); and




     (b) no Default shall have then occurred and be continuing.



     SECTION 5.2.2 Credit Extension Request, etc. Subject to Section 2.3.2, the
Administrative Agent shall have received a Borrowing Request if Loans are being requested, or an
Issuance Request if a Letter of Credit is being requested or extended. Each of the delivery of a
Borrowing Request or Issuance Request and the acceptance by the Borrower of the proceeds of such
Credit Extension shall constitute a representation and warranty by the Borrower that on the date of
such Credit Extension (both immediately before and after giving effect to such Credit Extension and
the application of the proceeds thereof) the statements made in Section 5.2.1 are true and
correct.



ARTICLE
VI

REPRESENTATIONS AND WARRANTIES




     In order to induce the Secured Parties to enter into this Agreement and to make Credit
Extensions hereunder, the Borrower represents and warrants to each Secured Party as set forth in
this Article.



               SECTION 6.1 Organization, etc. Each Obligor (i) is validly organized and existing and
in good standing under the laws of the state or jurisdiction of its incorporation or organization,
(ii) is duly qualified to do business and is in good standing as a foreign entity in each
jurisdiction where the nature of its business requires such qualification, except where the failure
to be so qualified or in good standing could not reasonably be expected to have a Material Adverse
Effect and (iii) has full organizational power and authority and holds all requisite governmental
licenses, permits and other approvals to enter into and perform its Obligations under each Loan
Document to which it is a party, and except to the extent the failure to do so could not reasonably
be expected to have a Material Adverse Effect, to (a) own and hold under lease its property and (b)
to conduct its business substantially as currently conducted by it.



               SECTION 6.2 Due Authorization, Non-Contravention, etc. The execution, delivery and
performance by each Obligor of each Loan Document executed or to be executed by it, each Obligor’s
participation in the consummation of all aspects of the Transaction, and the execution, delivery
and performance by the Borrower or (if applicable) any Obligor of the agreements executed and
delivered by it in connection with the Transaction are in each case within such Person’s powers,
have been duly authorized by all necessary action, and do not




     (a) contravene any (i) Obligor’s Organic Documents, (ii) court decree or order binding
on or affecting any Obligor or (iii) law or governmental regulation binding on or affecting
any Obligor; or




     (b) result in (i) or require the creation or imposition of, any Lien on any Obligor’s
properties (except as permitted by this Agreement) or (ii) a default under any material
contractual restriction binding on or affecting any Obligor.



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               SECTION 6.3 Government Approval, Regulation, etc. No authorization or approval or
other action by, and no notice to or filing with, any Governmental Authority or other Person (other
than those that have been, or on the Restatement Effective Date will be, duly obtained or made and
which are, or on the Restatement Effective Date will be, in full force and effect) is required for
the consummation of the Transaction or the due execution, delivery or performance by any Obligor of
any Loan Document to which it is a party, or for the due execution, delivery and/or performance of
Transaction Documents, in each case by the parties thereto or the consummation of the Transaction.
Neither the Borrower nor any of its Subsidiaries is an “investment company” within the meaning of
the Investment Company Act of 1940, as amended.



               SECTION 6.4 Validity, etc. Each Obligor has duly executed and delivered each of the
Loan Documents and each of the Transaction Documents to which it is a party, and each Loan Document
and each Transaction Document to which any Obligor is a party constitutes the legal, valid and
binding obligations of such Obligor, enforceable against such Obligor in accordance with their
respective terms (except, in any case, as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and by
principles of equity).



               SECTION 6.5 Financial Information. The financial statements of the Borrower and its
Subsidiaries furnished to the Administrative Agent and each Lender pursuant to Section
5.1.6 (other than forecasts, projections, budgets and forward-looking information) have been
prepared in accordance with GAAP consistently applied (except where specifically so noted on such
financial statements), and present fairly in all material respects the consolidated financial
condition of the Persons covered thereby as at the dates thereof and the results of their
operations for the periods then ended. All balance sheets, all statements of income and of cash
flow and all other financial information of each of the Borrower and its Subsidiaries furnished
pursuant to Section 7.1.1 have been and will for periods following the Restatement
Effective Date be prepared in accordance with GAAP consistently applied with the financial
statements delivered pursuant to Section 5.1.6, and do or will present fairly in all
material respects the consolidated financial condition of the Persons covered thereby as at the
dates thereof and the results of their operations for the periods then ended. Notwithstanding
anything contained herein to the contrary, it is hereby acknowledged and agreed by the
Administrative Agent, each Lead Arranger and each Lender that (i) any financial or business
projections furnished to the Administrative Agent, any Lead Arranger or any Lender by the Borrower
or any of its Subsidiaries under any Loan Document are subject to significant uncertainties and
contingencies, which may be beyond the Borrower’s and/or its Subsidiaries’ control, (ii) no
assurance is given by any of the Borrower or its Subsidiaries that the results forecast in any such
projections will be realized and (iii) the actual results may differ from the forecast results set
forth in such projections and such differences may be material.



               SECTION 6.6 No Material Adverse Change. There has been no material adverse change in
the business, financial condition, operations, performance or assets of the Borrower and its
Subsidiaries, taken as a whole, since January 3, 2009.



65









 





               SECTION 6.7 Litigation, Labor Controversies, etc. There is no pending or, to the
knowledge of the Borrower or any of its Subsidiaries, threatened (in writing) litigation, action,
proceeding, labor controversy or investigation:




     (a) affecting the Borrower any of its Subsidiaries or any other Obligor, or any of
their respective properties, businesses, assets or revenues, which could reasonably be
expected to have a Material Adverse Effect; or




     (b) which purports to affect the legality, validity or enforceability of any Loan
Document, the Transaction Documents or the Transaction.



               SECTION 6.8 Subsidiaries. The Borrower has no Subsidiaries, except those Subsidiaries
which are (a) identified in Item 6.8 of the Disclosure Schedule or (b) permitted to have been
organized or acquired in accordance with Sections 7.2.5 or 7.2.10.



               SECTION 6.9 Ownership of Properties. The Borrower and each of its Subsidiaries (other
than a Receivables Subsidiary) owns (a) in the case of owned real property, good and legal title
to, (b) in the case of owned personal property, good and valid title to, and (c) in the case of
leased real or personal property, valid and enforceable (subject to bankruptcy, insolvency,
reorganization or similar laws) leasehold interests (as the case may be) in, all of its properties
and assets, tangible and intangible, of any nature whatsoever, free and clear in each case of all
Liens or claims, except for Permitted Liens. Set forth in Item 6.9(a) of the Disclosure Schedule
is a true and complete list of each Mortgaged Property. Set forth in Item 6.9(b) of the Disclosure
Schedule is a true and complete list of each parcel of real property owned by any Obligor in the
United States on the Restatement Effective Date with a fair market value (as determined by the
Borrower in good faith) in excess of $2,000,000 on the Restatement Effective Date.



               SECTION 6.10 Taxes. The Borrower and each of its Subsidiaries has filed all material
tax returns and reports required by law to have been filed by it and has paid all Taxes thereby
shown to be due and owing, except any such Taxes which are being diligently contested in good faith
by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been
set aside on its books or except to the extent such failure could not reasonably be expected to
result in a Material Adverse Effect.



               SECTION 6.11 Pension and Welfare Plans. During the twelve-consecutive-month period
prior to the Restatement Effective Date and prior to the date of any Credit Extension hereunder, no
steps have been taken to terminate any Pension Plan which has caused or could reasonably be
expected to cause Borrower or any Subsidiary to incur any liability, and no contribution failure
has occurred with respect to any Pension Plan sufficient to give rise to a Lien under Section
302(f) of ERISA with respect to any assets of Borrower or any Subsidiary. No condition exists or
event or transaction has occurred with respect to any Pension Plan which might result in the
incurrence by the Borrower of any material liability, fine or penalty.



               SECTION 6.12 Environmental Warranties.



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     (a) All facilities and property (including underlying groundwater) owned or leased by
the Borrower or any of its Subsidiaries have been, and continue to be, owned or leased by
the Borrower and its Subsidiaries in compliance with all Environmental Laws, except for any
such noncompliance which could not reasonably be expected to have a Material Adverse Effect;




     (b) there have been no past, and there are no pending or, to the Borrower’s knowledge
(after due inquiry), threatened (in writing) (i) claims, complaints, notices or requests for
information received by the Borrower or any of its Subsidiaries with respect to any alleged
violation of any Environmental Law, or (ii) complaints, notices or inquiries to the Borrower
or any of its Subsidiaries regarding potential liability under any Environmental Law except
for claims, complaints, notices, requests for information or inquiries with respect to
violations of or potential liability under any Environmental Laws that could not reasonably
be expected to have a Material Adverse Effect;




     (c) there have been no Releases of Hazardous Materials at, on or under any property now
or previously owned, operated or leased by the Borrower or any of its Subsidiaries that have
had, or could reasonably be expected to have, a Material Adverse Effect;




     (d) the Borrower and its Subsidiaries have been issued and are in compliance with all
permits, certificates, approvals, licenses and other authorizations relating to
environmental matters, except for any such non-issuance or any such noncompliance which
could not reasonably be expected to have a Material Adverse Effect;




     (e) no property now or, to the Borrower’s knowledge (after due inquiry), previously
owned, operated or leased by the Borrower or any of its Subsidiaries is listed or proposed
for listing (with respect to owned, operated property only) on the National Priorities List
pursuant to CERCLA, on the CERCLIS or on any similar state list of sites requiring
investigation or clean-up, which listing could reasonably be expected to have a Material
Adverse Effect;




     (f) there are no underground storage tanks, active or abandoned, including petroleum
storage tanks, on or under any property now or previously owned, operated or leased by the
Borrower or any of its Subsidiaries that, singly or in the aggregate, have, or could
reasonably be expected to have, a Material Adverse Effect;




     (g) neither the Borrower nor any Subsidiary has directly transported or directly
arranged for the transportation of any Hazardous Material to any location which is listed or
proposed for listing on the National Priorities List pursuant to CERCLA, on the CERCLIS or
on any similar state list or which is the subject of federal, state or local enforcement
actions or other investigations which could reasonably be expected to lead to material
claims against the Borrower or such Subsidiary for any remedial work, damage to natural
resources or personal injury, including claims under CERCLA which, if adversely resolved
could, in any of the foregoing cases, reasonably be expected to have a Material Adverse
Effect;



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     (h) there are no polychlorinated biphenyls or friable asbestos present at any property
now or previously owned, operated or leased by the Borrower or any Subsidiary that, singly
or in the aggregate, have, or could reasonably be expected to have, a Material Adverse
Effect; and




     (i) no conditions exist at, on or under any property now or, to the knowledge of the
Borrower (after due inquiry), previously owned, operated or leased by the Borrower which,
with the passage of time, or the giving of notice or both, would give rise to liability
under any Environmental Law, except for such liability that could not reasonably be expected
to have a Material Adverse Effect.



               SECTION 6.13 Accuracy of Information. None of the factual information (other than
projections, forecasts, budgets and forward-looking information) heretofore or contemporaneously
furnished in writing to any Secured Party by or on behalf of any Obligor in connection with any
Loan Document or any transaction contemplated hereby (including the Transaction) (taken as a whole)
contains any untrue statement of a material fact, or omits to state any material fact necessary to
make any such information not materially misleading as of the date such information was furnished;
provided, however (i) any financial or business projections furnished to the
Administrative Agent, any Lead Arranger or any Lender by the Borrower or any of its Subsidiaries
under any Loan Document are subject to significant uncertainties and contingencies, which may be
beyond the Borrower’s and/or its Subsidiaries’ control, (ii) no assurance is given by any of the
Borrower or its Subsidiaries that the results forecast in any such projections will be realized and
(iii) the actual results may differ from the forecast results set forth in such projections and
such differences may be material.



               SECTION 6.14 Regulations U and X. No Obligor is engaged in the business of extending
credit for the purpose of buying or carrying margin stock, and no proceeds of any Credit Extensions
will be used to purchase or carry margin stock or otherwise for a purpose which violates, or would
be inconsistent with, F.R.S. Board Regulation U or Regulation X. Terms for which meanings are
provided in F.R.S. Board Regulation U or Regulation X or any regulations substituted therefor, as
from time to time in effect, are used in this Section with such meanings.



               SECTION 6.15 Compliance with Contracts, Laws, etc. The Borrower and each of its
Subsidiaries have performed their obligations under agreements to which the Borrower or a
Subsidiary is a party and have complied with all applicable laws, rules, regulations and orders
except were the failure to do so could not reasonably be expected to have a Material Adverse
Effect. The Borrower and each of its Subsidiaries (a) are not listed on the “Specially Designated
Nationals and Blocked Person List” maintained by the Office of Foreign Assets Control
(“OFAC”), the Department of the Treasury, or included in any executive orders relating
thereto and (b) have used the proceeds of the Credit Extensions without violating in any material
respect any of the foreign asset control regulations of OFAC or any enabling statute or executive
order relating thereto having the force of law.



               SECTION 6.16 Solvency. The Borrower and its Subsidiaries (taken as a whole), both
before and after giving effect to any Credit Extensions, are Solvent.



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ARTICLE
VII

COVENANTS




               SECTION 7.1 Affirmative Covenants. The Borrower agrees with each Lender, each Issuer
and each Agent that until the Termination Date has occurred, the Borrower will, and will cause its
Subsidiaries to, perform or cause to be performed the obligations set forth below.



     SECTION
7.1.1 Financial Information, Reports, Notices, etc. The Borrower will furnish
each Lender and the Administrative Agent copies of the following financial statements, reports,
notices and information:





     (a) within the earlier of (i) 45 days after the end of each of the first three Fiscal
Quarters of each Fiscal Year and (ii) so long as the Borrower is a public reporting company
at such time, such earlier date as the SEC requires the filing of such information (or if
the Borrower is required to file such information on a Form 10-Q with the SEC, promptly
following such filing), an unaudited consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such Fiscal Quarter and consolidated statements of income and
cash flow of the Borrower and its Subsidiaries for such Fiscal Quarter and for the period
commencing at the end of the previous Fiscal Year and ending with the end of such Fiscal
Quarter, and including (in each case), in comparative form, the figures for the
corresponding Fiscal Quarter in, and year to date portion of, the immediately preceding
Fiscal Year, certified as complete and correct in all material respects (subject to audit,
normal year-end adjustments and the absence of footnote disclosure) by the chief financial
officer, chief executive officer, president, treasurer or assistant treasurer of the
Borrower;




     (b) within the earlier of (i) 90 days after the end of each Fiscal Year and (ii) so
long as the Borrower is a public reporting company at such time, such earlier date as the
SEC requires the filing of such information (or if the Borrower is required to file such
information on a Form 10-K with the SEC, promptly following such filing), (i) a copy of the
consolidated balance sheet of the Borrower and its Subsidiaries, and the related
consolidated statements of income and cash flow of the Borrower and its Subsidiaries for
such Fiscal Year, setting forth in comparative form the figures for the immediately
preceding Fiscal Year, audited (without any Impermissible Qualification) by Pricewaterhouse
Coopers LLP or such other independent public accountants selected by the Borrower and
reasonably acceptable to the Administrative Agent, which shall include a calculation of the
financial covenants set forth in Section 7.2.4 and stating that, in performing the
examination necessary to deliver the audited financial statements of the Borrower, no
knowledge was obtained of any Event of Default with respect to financial matters and (ii) a
consolidated budget (within level of detail comparable to the quarterly financial statements
delivered pursuant to clause (a)) for the following Fiscal Year including a
projected consolidated balance sheet and related statements of projected operations and cash
flows as of the end of and for such following Fiscal Year;




     (c) promptly following the delivery of the financial information pursuant to
clauses (a) and (b) of this Section 7.1.1, a Compliance Certificate,
executed by the chief



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financial officer, chief executive officer, president, treasurer or assistant treasurer
of the Borrower, (i) showing compliance with the financial covenants set forth in
Section 7.2.4 and stating that no Default has occurred and is continuing (or, if a
Default has occurred, specifying the details of such Default and the action that the
Borrower or an Obligor has taken or proposes to take with respect thereto), (ii) stating
that no Subsidiary has been formed or acquired since the delivery of the last Compliance
Certificate (or, if a Subsidiary has been formed or acquired since the delivery of the last
Compliance Certificate, a statement that such Subsidiary has complied with Section
7.1.8 if applicable) and (iii) in the case of a Compliance Certificate delivered
concurrently with the financial information pursuant to clause (b), a calculation of
Excess Cash Flow; provided that such Compliance Certificate shall be furnished no
later than seven days following, and within the time periods required for, delivery of the
financial information pursuant to clauses (a) and (b) of this Section
7.1.1.




     (d) as soon as possible and in any event within three Business Days after the Borrower
or any other Obligor obtains knowledge of the occurrence of a Default, a statement of an
Authorized Officer on behalf of the Borrower setting forth details of such Default and the
action which the Borrower or such Obligor has taken and proposes to take with respect
thereto;




     (e) as soon as possible and in any event within three Business Days after the Borrower
or any other Obligor obtains knowledge of (i) the commencement of any litigation, action,
proceeding or labor controversy of the type and materiality described in Section 6.7
or (ii) any other event, change or circumstance that has had, or could reasonably be
expected to have, a Material Adverse Effect, notice thereof and, to the extent the
Administrative Agent requests, copies of all documentation relating thereto, if any;




     (f) promptly upon becoming aware of (i) the institution of any steps by any Person to
terminate any Pension Plan, (ii) the failure to make a required contribution to any Pension
Plan if such failure is sufficient to give rise to a Lien under Section 302(f) of ERISA,
(iii) the taking of any action with respect to a Pension Plan which could result in the
requirement that any Obligor furnish a bond or other security to the PBGC or such Pension
Plan, or (iv) the occurrence of any event with respect to any Pension Plan which could
reasonably be expected to result in the incurrence by any Obligor of any material liability,
fine or penalty, notice thereof and copies of all documentation relating thereto;




     (g) promptly upon receipt thereof, copies of all final “management letters” submitted
to the Borrower or any other Obligor by the independent public accountants referred to in
clause (b) in connection with each audit made by such accountants;




     (h) promptly following the mailing or receipt of any notice or report (other than
identical reports or notices delivered hereunder) delivered under the terms of the 2016
Senior Note Documents or the 2014 Senior Note Documents, copies of such notice or report;



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     (i) all PATRIOT Act Disclosures, to the extent reasonably requested by the
Administrative Agent or any Lender; and




     (j) such other financial and other information as any Lender or Issuer through the
Administrative Agent may from time to time reasonably request (including information and
reports in such detail as the Administrative Agent may request with respect to the terms of
and information provided pursuant to the Compliance Certificate).





Information required to be delivered pursuant to this Section 7.1.1 shall be deemed
to have been delivered to the Administrative Agent on the date on which such information is
available on the Internet via the EDGAR system of the SEC. Information required to be
delivered pursuant to this Section 7.1.1 may also be delivered by electronic
communication pursuant to procedures approved by the Administrative Agent pursuant to
Section 9.11.



     SECTION 7.1.2 Maintenance of Existence; Material Obligations; Compliance with Contracts,
Laws, etc. The Borrower will, and will cause each of its Subsidiaries to, preserve and
maintain its legal existence, rights (charter and statutory), franchises, permits, licenses and
approvals (in each case, except as otherwise permitted by Section 7.2.10), perform in all
respects their obligations, including obligations under agreements to which the Borrower or a
Subsidiary is a party, and comply in all respects with all applicable laws, rules, regulations and
orders, including the payment (before the same become delinquent), of all obligations, including
all Taxes imposed upon the Borrower or its Subsidiaries or upon their property except to the extent
being diligently contested in good faith by appropriate proceedings and for which adequate reserves
in accordance with GAAP have been set aside on the books of the Borrower or its Subsidiaries, as
applicable except, in each case, where the failure to do so could not reasonably be expected to
have a Material Adverse Effect.



     SECTION 7.1.3 Maintenance of Properties. Except to the extent that the failure to do
so could not reasonably be expected to have a Material Adverse Effect the Borrower will, and will
cause each of its Subsidiaries to, maintain, preserve, protect and keep its and their respective
properties in good repair, working order and condition (ordinary wear and tear, casualty and
condemnation excepted), and make necessary repairs, renewals and replacements so that the business
carried on by the Borrower and its Subsidiaries may be properly conducted at all times, unless the
Borrower or such Subsidiary determines in good faith that the continued maintenance of such
property is no longer economically desirable, necessary or useful to the business of the Borrower
or any of its Subsidiaries or the Disposition of such property is otherwise permitted by
Section 7.2.10 or Section 7.2.11.



     SECTION 7.1.4 Insurance. The Borrower will, and will cause each of its Subsidiaries
to maintain:




     (a) insurance on its property with financially sound and reputable insurance companies
against loss and damage in at least the amounts (and with only those deductibles)
customarily maintained, and against such risks as are typically insured against in the same
general area, by Persons of comparable size engaged in the same or similar business as the
Borrower and its Subsidiaries; and



71









 





     (b) all worker’s compensation, employer’s liability insurance or similar insurance as
may be required under the laws of any state or jurisdiction in which it may be engaged in
business.


Without limiting the foregoing, all insurance policies required pursuant to this Section shall (i)
name the Collateral Agent on behalf of the Secured Parties as mortgagee (in the case of property
insurance) or additional insured (in the case of liability insurance), as applicable, and provide
that no cancellation or modification of the policies will be made without thirty days’ prior
written notice to the Collateral Agent and (ii) without duplication, be in addition to any
requirements to maintain specific types of insurance contained in the other Loan Documents.




     SECTION 7.1.5 Books and Records. The Borrower will, and will cause each of its
Subsidiaries to, keep books and records in accordance with GAAP which accurately reflect in all
material respects all of its business affairs and transactions and permit each Secured Party or any
of their respective representatives, at reasonable times during normal business hours and intervals
upon reasonable notice to the Borrower and except after the occurrence and during the continuance
of an Event of Default not more frequently than once per Fiscal Year, to visit each Obligor’s
offices, to discuss such Obligor’s financial matters with its officers and employees, and its
independent public accountants (provided that management of the Borrower shall be notified
and allowed to be present at all such meetings and the Borrower hereby authorizes such independent
public accountant to discuss each Obligor’s financial matters with each Secured Party or their
representatives) and to examine (and photocopy extracts from) any of its books and records. The
Borrower shall pay any reasonable fees of such independent public accountant incurred in connection
with any Secured Party’s exercise of its rights pursuant to this Section.



     SECTION 7.1.6 Environmental Law Covenant. The Borrower will, and will cause each of
its Subsidiaries to:




     (a) use and operate all of its and their facilities and properties in compliance with
all Environmental Laws, keep all permits, approvals, certificates, licenses and other
authorizations required under Environmental Laws in effect and remain in compliance
therewith, and handle all Hazardous Materials in compliance with all applicable
Environmental Laws, in each case except where failure to do so could not reasonably be
expected to have a Material Adverse Effect; and




     (b) promptly notify the Administrative Agent and provide copies upon receipt of all
written claims, complaints, notices or inquiries relating to the condition of its facilities
and properties in respect of, or as to compliance with, Environmental Laws, the subject
matter of which could reasonably be expected to have a Material Adverse Effect, and shall
promptly resolve any non-compliance with Environmental Laws (except as could not reasonably
be expected to have a Material Adverse Effect) and keep its property free of any Lien
imposed by any Environmental Law, unless such Lien is a Permitted Lien.



     SECTION 7.1.7 Use of Proceeds. The Borrower will apply the proceeds of the Credit
Extensions as follows:



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     (a) to finance, in part, the Transaction and to pay the fees, costs and expenses
related to the Transaction;




     (b) for working capital and general corporate purposes of the Borrower and its
Subsidiaries; and




     (c) for issuing Letters of Credit for the account of the Borrower and its Subsidiaries
for purposes referred to in clause (b) above.



     SECTION 7.1.8 Future Guarantors, Security, etc. Subject to Section 7.1.11,
the Borrower will, and will cause each U.S. Subsidiary (other than HBI Playtex Bath LLC, a Delaware
limited liability company “Playtex Bath”) to, execute any documents, authorize the filing
of Filing Statements, execute agreements and instruments, and take all commercially reasonable
further action (including filing Mortgages to the extent required hereby) that may be required
under applicable law, or that the Administrative Agent may reasonably request, in order to
effectuate the transactions contemplated by the Loan Documents and in order to grant, preserve,
protect and perfect the validity and first priority (subject to Permitted Liens) of the Liens
created or intended to be created by the Loan Documents. The Borrower will cause any subsequently
acquired or organized U.S. Subsidiary (other than Playtex Bath) to execute a supplement (in form
and substance reasonably satisfactory to the Administrative Agent) to the Guaranty and each other
applicable Loan Document in favor of the Secured Parties. In addition, from time to time, the
Borrower will, at its own cost and expense, promptly secure the Obligations by pledging or
creating, or causing to be pledged or created, perfected Liens with respect to such of its assets
and properties as the Administrative Agent or the Required Lenders shall designate, it being agreed
that it is the intent of the parties that the Obligations shall be secured by, among other things,
substantially all the assets of the Borrower and its U.S. Subsidiaries (other than Playtex Bath)
and personal property acquired subsequent to the Restatement Effective Date; provided that
(a) neither the Borrower nor its U.S. Subsidiaries shall be required to pledge more than 65% of the
Voting Securities of any Foreign Subsidiary that is directly owned by any Obligor, (b) neither the
Borrower nor any U.S. Subsidiary shall be required to create or perfect any security interest in
any leased real property or any owned real property with a fair market value (as determined by the
Borrower in good faith) less than $2,000,000, (c) to the extent the Organic Documents of a Foreign
Subsidiary prohibit the creation or perfection of a security interest in the Capital Securities of
such Foreign Subsidiary, no Obligor will be required to create or perfect a security interest in
such Capital Securities and (d) the Borrower will not be required to execute and deliver any
Foreign Pledge Agreement with respect to any Foreign Subsidiary (i) whose assets are valued (as
reasonably determined by the Borrower) at less than $25,000,000 or (ii) if the Borrower and the
Administrative Agent reasonably determine that it is commercially impractical to deliver a Foreign
Pledge Agreement in such jurisdiction. Such Liens will be created under the Loan Documents in form
and substance reasonably satisfactory to the Agents, and the Borrower shall deliver or cause to be
delivered to the Agents all such instruments and documents (including legal opinions, title
insurance policies and lien searches) as the Administrative Agent shall reasonably request to
evidence compliance with this Section.



     SECTION 7.1.9 Rate Protection Agreements. Within 60 days following the Restatement
Effective Date, the Borrower will enter into interest rate swap, cap, collar or similar



73









 




arrangements with a Lender or any other Person reasonably acceptable to the Lenders designed
to protect the Borrower against fluctuations in interest rates for a period of at least three years
from the Restatement Effective Date, in an amount reasonably satisfactory to the Agents and in any
event that would cause an amount equal to not less than 50% of the Indebtedness outstanding under
the Loan Documents, the 2016 Senior Note Documents and the 2014 Senior Note Documents to bear
interest at a fixed rate.




     SECTION 7.1.10 Maintenance of Ratings. The Borrower will use its commercially
reasonable efforts to cause (a) a senior secured credit rating with respect to the Loans from each
of S&P and Moody’s and (b) a corporate credit rating and corporate family rating from S&P and
Moody’s respectively, to be available at all times until the Stated Maturity Date for the New Term
Loans.



     SECTION 7.1.11 Post-Closing Obligations.




     (a) Foreign Pledge Agreement Amendments. Within 90 days after the Restatement
Effective Date (or such later dates from time to time as consented to by the Administrative
Agent in its reasonable discretion), the Agents shall have received amendments to each
Foreign Pledge Agreement (giving effect to the appointment of JPMorgan Chase Bank, N.A., as
successor Collateral Agent and the entering into of this Agreement) and each Foreign Pledge
Agreement shall remain in full force and effect, and all Liens granted to the Collateral
Agent thereunder shall be duly perfected to provide the Collateral Agent with a security
interest in and Lien on all collateral granted thereunder free and clear of other Liens,
except to the extent reasonably consented to by the Administrative Agent; provided
that the Administrative Agent may waive the requirement to perfect a pledge on the Capital
Securities of any Foreign Subsidiary otherwise required to be pledged hereunder if they
determine, in their reasonable discretion, that the value of the assets owned by such
Foreign Subsidiary or the EBITDA generated by such Foreign Subsidiary, is immaterial when
taken as a whole.




     (b) Mortgage Amendments. Subject to the limitation in clause (d) of
Section 7.1.8, within 90 days after the Restatement Effective Date (or such later
dates from time to time as consented to by the Administrative Agent in its reasonable
discretion), the Agents shall have received amendments to each Mortgage (giving effect to
the appointment of JPMorgan Chase Bank, N.A., as successor Collateral Agent and the entering
into of this Agreement) with respect to a Mortgaged Property, duly executed and delivered by
the applicable Obligor, together with:




     (i) evidence of the completion (or reasonably satisfactory arrangements for the
completion) of all recordings and filings of each Mortgage amendment as necessary to
continue a valid, perfected first priority (subject to Permitted Liens) Lien against
the properties purported to be covered thereby;




     (ii) down-dated mortgagee’s title insurance policies in favor of the Collateral
Agent for the benefit of the Secured Parties in amounts not exceeding the fair
market value of the insured property and in form and substance and issued by
insurers, reasonably satisfactory to the Lead Arrangers, with respect to the



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property purported to be covered by each Mortgage, insuring that title to such
property is marketable and that the interests created by each Mortgage continue to
constitute valid first Liens thereon (subject to Permitted Liens), and shall be
accompanied by evidence of the payment in full of all premiums thereon; and





     (iii) mortgage releases releasing any mortgage in favor of any other Person on
any Mortgaged Property (except to the extent the same constitute a Permitted Lien
pursuant to Section 7.2.3);





     (c) Mortgages on Excluded Properties. To the extent the Excluded Properties
have not been sold by the Obligors within 120 days after the Restatement Effective Date, the
Agents shall receive Mortgages with respect to the Excluded Properties within 150 days of
the Restatement Effective Date, duly executed and delivered by the applicable Obligor,
together with such other customary documents and evidence as the Agents may reasonably
request (including local opinions, maps or plats of an as-built survey of the sites of such
Excluded Properties, a mortgagee’s title insurance policy (or policies) or marked up
unconditional binder for such insurance and flood insurance policies).




     (d) Foreign Stock Certificates. Within 30 Business Days following the
Restatement Effective Date (or such later dates from time to time as consented to by the
Administrative Agent in its reasonable discretion), the Borrower agrees to deliver to the
Collateral Agent certificates (in each case accompanied by undated instruments of transfer
duly executed in blank) evidencing 65% of the issued and outstanding Voting Securities (to
the extent certificated and permitted by applicable law to be removed from any particular
jurisdiction) of each Foreign Subsidiary (together with all the issued and outstanding
non-voting Capital Securities (to the extent certificated and permitted by applicable law to
be removed from any particular jurisdiction) of such Foreign Subsidiary) directly owned by
each Obligor to the extent not previously delivered, together with a revised Schedule I to
the Security Agreement accurately reflecting the newly delivered certificates.



               SECTION 7.2 Negative Covenants. The Borrower covenants and agrees with each Lender,
each Issuer and each Agent that until the Termination Date has occurred, the Borrower will, and
will cause its Subsidiaries to, perform or cause to be performed the obligations set forth below.



     SECTION 7.2.1 Business Activities; Fiscal Year. The Borrower will not, and will not
permit any of its Subsidiaries to, engage in any business activity except those business activities
engaged in on the date of this Agreement and activities reasonably related, supportive,
complementary, ancillary or incidental thereto or reasonable extensions thereof (each, a
“Permitted Business”). The Borrower will not change the ending dates with respect to its
Fiscal Year.



     SECTION 7.2.2 Indebtedness. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, other than:




     (a) Indebtedness in respect of the Obligations;



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     (b) unsecured Indebtedness of the Obligors (i) under the 2016 Senior Note Documents in
an aggregate principal amount not to exceed $500,000,000, as such amount is reduced on or
after the Restatement Effective Date in accordance with the terms hereof, (ii) under the
2014 Senior Note Documents in a net aggregate principal amount not to exceed $493,680,000
and (iii) under senior notes whether issued pursuant to a supplement to the 2014 Senior Note
Indenture, the 2016 Senior Note Indenture or any other senior note indenture, the terms of
which are reasonably satisfactory to the Administrative Agent, so long as (x) the aggregate
principal amount allowed thereunder does not exceed $1,000,000,000 and (y) the proceeds
therefore are applied to repay Loans in accordance with clause (g) of Section 3.1.1;




     (c) Indebtedness existing as of the Restatement Effective Date which is identified in
Item 7.2.2(c) of the Disclosure Schedule, and refinancings, refundings,
reallocations, renewals or extensions of such Indebtedness in a principal amount not in
excess of that which is outstanding on the Restatement Effective Date (as such amount has
been reduced following the Restatement Effective Date);




     (d) unsecured Indebtedness (i) incurred in the ordinary course of business of the
Borrower and its Subsidiaries (including open accounts extended by suppliers on normal trade
terms in connection with purchases of goods and services which are not overdue for a period
of more than 90 days or, if overdue for more than 90 days, as to which a dispute exists and
adequate reserves in conformity with GAAP have been established on the books of the Borrower
or such Subsidiary) and (ii) in respect of performance, surety or appeal bonds provided in
the ordinary course of business, but excluding (in each case), Indebtedness incurred through
the borrowing of money or Contingent Liabilities of borrowed money;




     (e) Indebtedness (i) in respect of industrial revenue bonds or other similar
governmental or municipal bonds, (ii) evidencing the deferred purchase price of newly
acquired property or incurred to finance the acquisition of equipment of the Borrower and
its Subsidiaries (pursuant to purchase money mortgages or otherwise, whether owed to the
seller or a third party) used in the ordinary course of business of the Borrower and its
Subsidiaries (provided that, such Indebtedness is incurred within 270 days of the
acquisition of such property) and (iii) in respect of Capitalized Lease Liabilities;
provided that, the aggregate amount of all Indebtedness outstanding pursuant to this
clause shall not at any time exceed $150,000,000;




     (f) Indebtedness of an Obligor owing to any other Obligor;




     (g) unsecured Indebtedness of an Obligor owing to a Subsidiary that is not a Subsidiary
Guarantor; provided that, in each case, all such Indebtedness of any Obligor owed to
a Subsidiary that is not a Subsidiary Guarantor shall be subordinated to the Obligations of
such Obligor on customary terms.




     (h) Indebtedness of a Foreign Subsidiary to the Borrower or any other Obligor in an
aggregate amount (when aggregated with the amount of Investments made by the




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Borrower and the Subsidiary Guarantors in Foreign Subsidiaries under clause (l) of
Section 7.2.5) not to exceed $300,000,000 plus Available Retained Excess Cash Flow;




     (i) Indebtedness of a Person existing at the time such Person became a Subsidiary of
the Borrower, but only if such Indebtedness was not created or incurred in contemplation of
such Person becoming a Subsidiary and the aggregate amount of all Indebtedness incurred
pursuant to this clause does not exceed $250,000,000 over the term of this Agreement;




     (j) Indebtedness incurred pursuant to a Permitted Securitization and Standard
Securitization Undertakings and Permitted Factoring Facilities;




     (k) unsecured Indebtedness of the Borrower and its Subsidiaries incurred to (i) finance
Permitted Acquisitions (including obligations of the Borrower and its Subsidiaries under
indemnification, adjustment of purchase price, earn-out, incentive, non-compete, consulting,
deferred compensation or other similar arrangements incurred by such Person in connection
therewith) or (ii) refinance any other Indebtedness permitted to be incurred under
clauses (a), (b), (e), (i), (j) and (n) of
this Section 7.2.2;




     (l) Indebtedness in respect of Hedging Obligations entered into in the ordinary course
of business and not for speculative purposes;




     (m) Indebtedness of any Foreign Subsidiary owing to any other Foreign Subsidiary;




     (n) Indebtedness (whether unsecured or secured by Liens) of Foreign Subsidiaries in an
aggregate outstanding principal amount not to exceed $300,000,000 at any one time
outstanding and Contingent Liabilities of any Obligor in respect thereof; provided
that Foreign Subsidiaries shall be permitted to incur an additional $75,000,000 of
Indebtedness over the term of this Agreement to the extent such Indebtedness is incurred in
connection with a Permitted Acquisition.




     (o) Indebtedness incurred in the ordinary course of business in connection with cash
pooling arrangements, cash management and other Indebtedness incurred in the ordinary course
of business in respect of netting services, overdraft protections and similar arrangements
in each case in connection with cash management and deposit accounts;




     (p) Indebtedness consisting of the financing of insurance premiums in the ordinary
course of business;




     (q) unsecured Indebtedness of Borrower and its Subsidiaries representing the obligation
of such Person to make payments with respect to the cancellation or repurchase of Capital
Securities of officers, employees or directors (or their estates) of the Borrower or such
Subsidiaries; and




     (r) other Indebtedness of the Borrower and its Subsidiaries (other than Indebtedness of
Foreign Subsidiaries owing to the Borrower or Subsidiary Guarantors or



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  of a Receivables Subsidiary) in an aggregate amount at any time outstanding not to
exceed $150,000,000;


provided that, no Indebtedness otherwise permitted by clauses (c), (e),
(i), (k)(i) or (r) shall be assumed, created or otherwise incurred if an
Event of Default has occurred and is then continuing.




     SECTION 7.2.3 Liens. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or permit to exist any Lien upon any of its property
(including Capital Securities of any Person), revenues or assets, whether now owned or hereafter
acquired, except the following (collectively “Permitted Liens”):




     (a) Liens securing payment of the Obligations;




     (b) Liens in connection with a Permitted Securitization or a Permitted Factoring
Facility;




     (c) Liens existing as of the Restatement Effective Date and disclosed in Item
7.2.3(c) of the Disclosure Schedule securing Indebtedness described in clause
(c) of Section 7.2.2, and refinancings, refundings, reallocations, renewals or
extensions of such Indebtedness; provided that, no such Lien shall encumber any
additional property (except for accessions to such property and the products and proceeds
thereof) and the amount of Indebtedness secured by such Lien is not increased from that
existing on the Restatement Effective Date;




     (d) Liens securing Indebtedness of the type permitted under clause (e) of
Section 7.2.2; provided that, (i) such Lien is granted within 270 days after
such Indebtedness is incurred, (ii) the Indebtedness secured thereby does not exceed the
lesser of the cost or the fair market value of the applicable property, improvements or
equipment at the time of such acquisition (or construction) and (iii) such Lien secures only
the assets that are the subject of the Indebtedness referred to in such clause;




     (e) Liens securing Indebtedness permitted by clause (i) of Section
7.2.2; provided that, such Liens existed prior to such Person becoming a
Subsidiary, were not created in anticipation thereof and attach only to specific tangible
assets of such Person;




     (f) Liens in favor of carriers, warehousemen, mechanics, repairmen, materialmen,
customs and revenue authorities and landlords and other similar statutory Liens and Liens in
favor of suppliers (including sellers of goods pursuant to customary reservations or
retention of title, in each case) granted in the ordinary course of business for amounts not
overdue for a period of more than 60 days or are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with GAAP shall have
been set aside on its books or with respect to which the failure to make payment could not
reasonably be expected to have a Material Adverse Effect;




     (g) (i) Liens incurred or deposits made in the ordinary course of business in
connection with worker’s compensation, unemployment insurance or other forms of



78









 






governmental insurance or benefits, or to secure performance of tenders, statutory
obligations, bids, leases, trade contracts or other similar obligations (other than for
borrowed money) entered into in the ordinary course of business or to secure obligations on
surety and appeal bonds or performance bonds, performance and completion guarantees and
other obligations of a like nature (including those to secure health, safety and
environmental obligations) incurred in the ordinary course of business and (ii) obligations
in respect of letters of credit or bank guarantees that have been posted to support payment
of the items set forth in the immediately preceding clause (i);




     (h) judgment Liens that are being appealed in good faith or with respect to which
execution has been stayed or the payment of which is covered in full (subject to a customary
deductible) by insurance maintained with responsible insurance companies and which do not
otherwise result in an Event of Default under Section 8.1.6;




     (i) easements, rights-of-way, covenants, conditions, building codes, restrictions,
reservations, minor defects or irregularities in title and other similar encumbrances and
matters that would be disavowed by a full survey of real property not interfering in any
material respect with the value or use of the affected or encumbered real property to which
such Lien is attached;




     (j) Liens securing Indebtedness permitted by clauses (n) or (o) of
Section 7.2.2 or clause (l) of Section 7.2.5;




     (k) Liens arising solely by virtue of any statutory or common law provision relating to
banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or
other funds maintained with a creditor depository institution and Liens attaching to
commodity trading accounts or other commodities brokerage accounts incurred in the ordinary
course of business;




     (l) (i) licenses, sublicenses, leases or subleases granted to third Persons in the
ordinary course of business not interfering in any material respect with the business of the
Borrower or any of its Subsidiaries, (ii) other agreements with respect to the use and
occupancy of real property entered into in the ordinary course of business or in connection
with a Disposition permitted under the Loan Documents or (iii) the rights reserved or vested
in any Person by the terms of any lease, license, franchise, grant or permit held by
Borrower or any of its Subsidiaries or by a statutory provision, to terminate any such
lease, license, franchise, grant or permit, or to require annual or periodic payments as a
condition to the continuance thereof;




     (m) Liens on the property of the Borrower or any of its Subsidiaries securing (i) the
non-delinquent performance of bids, trade contracts (other than for borrowed money), leases,
licenses and statutory obligations, (ii) Contingent Obligations on surety and appeal bonds,
and (iii) other non-delinquent obligations of a like nature; in each case, incurred in the
ordinary course of business;



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     (n) Liens on Receivables transferred to a Receivables Subsidiary under a Permitted
Securitization or to a Subsidiary who is party to a Permitted Factoring Facility under a
Permitted Factoring Facility;




     (o) Liens upon specific items or inventory or other goods and proceeds of the Borrower
or any of its Subsidiaries securing such Person’s obligations in respect of bankers’
acceptances or documentary letters of credit issued or created for the account of such
Person to facilitate the shipment or storage of such inventory or other goods;




     (p) Liens (i) (A) on advances of cash or Cash Equivalent Investments in favor of the
seller of any property to be acquired in an Investment permitted pursuant to Section
7.2.5 to be applied against the purchase price for such Investment and (B) consisting of
an agreement to Dispose of any property in a Disposition permitted under Section
7.2.11, in each case under this clause (i), solely to the extent such Investment
or Disposition, as the case may be, would have been permitted on the date of the creation of
such Lien and (ii) on earnest money deposits of cash or Cash Equivalent Investments made by
the Borrower or any of its Subsidiaries in connection with any letter of intent or purchase
agreement permitted hereunder;




     (q) Liens arising from precautionary Uniform Commercial Code financing statement
filings (or similar filings under other applicable Law) regarding leases entered into by the
Borrower or any of its Subsidiaries in the ordinary course of business;




     (r) Liens (i) arising out of conditional sale, title retention, consignment or similar
arrangements for sale of goods (including under Article 2 of the UCC) and Liens that are
contractual rights of set-off relating to purchase orders and other similar agreements
entered into by the Borrower or any of its Subsidiaries and (ii) relating to the
establishment of depository relations with banks not given in connection with the issuance
of Indebtedness and (iii) relating to pooled deposit or sweep accounts of the Borrower or
any Subsidiary to permit satisfaction of overdraft or similar obligations in each case in
the ordinary course of business and not prohibited by this Agreement;




     (s) other Liens securing Indebtedness or other obligations permitted under this
Agreement and outstanding in an aggregate principal amount not to exceed $75,000,000;




     (t) ground leases in respect of real property on which facilities owned or leased by
the Borrower or any of its Subsidiaries are located or any Liens senior to any lease,
sub-lease or other agreement under which the Borrower or any of its Subsidiaries uses or
occupies any real property;




     (u) Liens constituting security given to a public or private utility or any
Governmental Authority as required in the ordinary course of business;




     (v) pledges or deposits of cash and Cash Equivalent Investments securing deductibles,
self-insurance, co-payment, co-insurance, retentions and similar obligations to providers of
insurance in the ordinary course of business;



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     (w) Liens on (A) incurred premiums, dividends and rebates which may become payable
under insurance policies and loss payments which reduce the incurred premiums on such
insurance policies and (B) rights which may arise under State insurance guarantee funds
relating to any such insurance policy, in each case securing Indebtedness permitted to be
incurred pursuant to clause (p) of Section 7.2.2;




     (x) Liens for Taxes not at the time delinquent or thereafter payable without penalty or
being diligently contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books or with respect to
which the failure to make payment could not reasonably be expected to have a Material
Adverse Effect;




     (y) Liens in respect of Hedging Obligations; and




     (z) non-exclusive licenses of intellectual property rights in the ordinary course of
business.



     SECTION 7.2.4 Financial Condition and Operations. The Borrower will not permit any of
the events set forth below to occur.



     (a) The Borrower will not permit the Leverage Ratio as of the last day of any Fiscal Quarter
occurring during any period set forth below to be greater than the ratio set forth opposite such
period:



	 	 	 
	Period	 	Leverage Ratio
	Each Fiscal Quarter ending between October 16, 2009 and
July 15, 2010

	 	4.50:1.00
	Each Fiscal Quarter ending between July 16, 2010 and
October 15, 2010

	 	4.25:1.00
	Each Fiscal Quarter ending between October 16, 2010 and
April 15, 2011

	 	4:00:1.00
	Each Fiscal Quarter ending April 16, 2011 and thereafter

	 	3.75:1.00






     (b) The Borrower will not permit the Interest Coverage Ratio as of the last day of any Fiscal
Quarter occurring during any period set forth below to be less than the ratio set forth opposite
such period:




	 	 	 
	Period	 	Interest Coverage Ratio
	Each Fiscal Quarter ending between October 16,
2009 and July 15, 2010

	 	2.50:1.00





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	Each Fiscal Quarter ending between July 16, 2010
and October 15, 2010

	 	2.75:1.00
	Each Fiscal Quarter ending between October 16,
2010 and July 15, 2011

	 	3.00:1.00
	Each Fiscal Quarter ending July 16, 2011 and
thereafter

	 	3.25:1.00






     SECTION 7.2.5 Investments. The Borrower will not, and will not permit any of its
Subsidiaries to, purchase, make, incur, assume or permit to exist any Investment in any other
Person, except:




     (a) Investments existing on the Restatement Effective Date and identified in Item
7.2.5(a) of the Disclosure Schedule, and any amendment, modification, restatement,
extension, renewal, refunding, replacement or refinancing, in whole or in part thereof,
provided that the principal amount of any Investment following any such amendment,
modification, restatement, extension, renewal, refunding, replacement or refinancing
pursuant to this Section 7.2.5(a) shall not exceed the principal amount of such
Investment on the date hereof;




     (b) Cash Equivalent Investments;




     (c) Investments received in connection with the bankruptcy or reorganization of, or
settlement of delinquent accounts and disputes with, customers and suppliers, in each case
in the ordinary course of business;




     (d) Investments consisting of any deferred portion (including promissory notes and
non-cash consideration) of the sales price received by the Borrower or any Subsidiary in
connection with any Disposition permitted under Section 7.2.11;




     (e) Investments by way of contributions to capital or purchases of Capital Securities
by an Obligor in any other Obligor;




     (f) Investments constituting (i) accounts receivable arising or acquired, (ii) trade
debt granted, or (iii) deposits made in connection with the purchase price of goods or
services, in each case in the ordinary course of business;




     (g) Investments by way of the acquisition of Capital Securities or the purchase or
other acquisition of all or substantially all of the assets or business of any Person, or of
assets constituting a business unit, or line of business or division of, such Person, in
each case constituting Permitted Acquisitions; provided that if such Person is not
incorporated or organized under the laws of the United States, the amount expended in such
transaction, when aggregated with the amount expended under clause (b) of
Section 7.2.10, shall not exceed the amount set forth in clause (b) of
Section 7.2.10 during the term of this Agreement;



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     (h) Investments constituting Capital Expenditures permitted pursuant to Section
7.2.7;




     (i) Investments in a Receivables Subsidiary or a Subsidiary who is party to a Permitted
Factoring Facility or any Investment by a Receivables Subsidiary or a Subsidiary who is
party to a Permitted Factoring Facility in any other Person under a Permitted Securitization
or a Permitted Factoring Facility; provided that any Investment in a Receivables
Subsidiary is in the form of a Purchase Money Note, contribution of additional receivables
and related assets or any equity interests;




     (j) Investments constituting loans or advances to officers, directors or employees made
in the ordinary course of business (including for travel, entertainment and relocation
expenses) in an aggregate amount not to exceed $10,000,000;




     (k) Investments by any Subsidiary that is not a Subsidiary Guarantor in the Borrower or
any other Subsidiary; provided that any intercompany loan made by a any Subsidiary
that is not a Subsidiary Guarantor to an Obligor shall meet the requirements of clause (g)
of Section 7.2.2;




     (l) Investments in Foreign Subsidiaries in an aggregate amount not to exceed
$300,000,000 over the term of this Agreement plus Available Retained Excess Cash
Flow;




     (m) Investments in the ordinary course of business consisting of (i) endorsements for
collection or deposit, (ii) customary arrangements with customers or (iii) Hedging
Obligations not for speculative purposes;




     (n) advances of payroll payments to employees in the ordinary course of business;




     (o) Investments in any Person engaged in one or more Permitted Businesses and
supporting ongoing business operations of the Borrower or its Subsidiaries (including
without limitation Persons that are not Subsidiaries of the Borrower) in an aggregate amount
not to exceed $75,000,000 over the term of this Agreement;




     (p) other Investments in an amount not to exceed $125,000,000 over the term of this
Agreement plus Available Retained Excess Cash Flow, determined as of the date of
such Investment; and




     (q) Investments incurred in the ordinary course of business in connection with cash
pooling arrangements, cash management and other Investments incurred in the ordinary course
of business in respect of netting services, overdraft protections and similar arrangement in
each case in connection with cash management.


provided that (I) any Investment which when made complies with the requirements of the
definition of the term “Cash Equivalent Investment” may continue to be held notwithstanding that
such Investment if made thereafter would not comply with such requirements; and (II) no






83









 







Investment otherwise permitted by clauses (e) (to the extent such Investment relates to an
Investment in a Foreign Subsidiary), (g) or (n) shall be permitted to be made if
any Event of Default has occurred and is continuing.




     SECTION 7.2.6 Restricted Payments, etc. The Borrower will not, and will not permit
any of its Subsidiaries (other than a Receivables Subsidiary) to, declare or make a Restricted
Payment, or make any deposit for any Restricted Payment, other than (a) Restricted Payments made by
Subsidiaries to the Borrower or wholly owned Subsidiaries, (b) cashless exercises of stock options,
(c) cash payments by Borrower in lieu of the issuance of fractional shares upon exercise or
conversion of Equity Equivalents, (d) Restricted Payments in connection with the share repurchases
required by the employee stock ownership programs or required under employee agreements and (e) so
long as (i) no Specified Default has occurred and is continuing or would result therefrom, and (ii)
both before and after giving effect to such Restricted Payment, the Borrower is in pro forma
compliance with Section 7.2.4, Restricted Payments not otherwise permitted by this
Section 7.2.6 in an aggregate amount not to exceed $75,000,000 in any Fiscal Year
plus Available Retained Excess Cash Flow.



     SECTION 7.2.7 Capital Expenditures.




     (a) Subject (in the case of Capitalized Lease Liabilities), to clause (e) of
Section 7.2.2, the Borrower will not, and will not permit any of its Subsidiaries
to, make or commit to make Capital Expenditures except Capital Expenditures in an aggregate
amount not to exceed $130,000,000 in any Fiscal Year plus Available Retained Excess
Cash Flow; provided that, to the extent that the amount of Capital Expenditures made
by the Borrower and its Subsidiaries during any Fiscal Year is less than the aggregate
amount permitted (including after giving effect to this proviso) for such Fiscal Year, then
such unutilized amount may be carried forward and utilized by the Borrower and its
Subsidiaries to make Capital Expenditures in any succeeding Fiscal Year, provided
further that it is understood and agreed that the Borrower shall be permitted to carry
forward all unused amounts for the 2009 Fiscal Year accumulated pursuant to Section
7.2.7 of the Original Credit Agreement for usage in any succeeding Fiscal Year.
Notwithstanding anything to the contrary with respect to any Fiscal Year of the Borrower
during which a Permitted Acquisition is consummated and for each Fiscal Year subsequent
thereto, the amount of Capital Expenditures permitted under the preceding sentence
applicable to each such Fiscal Year shall be increased by an amount equal to 5% of the
purchase price of each Permitted Acquisition (the “Acquired Permitted Capital
Expenditure Amount”); provided, however, with respect to the Fiscal Year
during which any such Permitted Acquisition occurs, the amount of additional Capital
Expenditures permitted as a result of this sentence shall be an amount equal to the product
of (x) the Acquired Permitted Capital Expenditure Amount and (y) a fraction, the numerator
of which is the number of days remaining in such Fiscal Year after the date such Permitted
Acquisition is consummated and the denominator of which is the actual number of days in such
Fiscal Year.




     (b) Notwithstanding anything to the contrary contained in clause (a) above, for
any Fiscal Year, the amount of Capital Expenditures that would otherwise be permitted in
such Fiscal Year pursuant to this Section 7.2.7 (including as a result of the



84









 






carry-forward described in the proviso to the first sentence of clause (a)
above) may be increased by an amount not to exceed $10,000,000 (the “CapEx Pull-Forward
Amount”). The actual CapEx Pull-Forward Amount in respect of any such Fiscal Year shall
reduce, on a dollar-for-dollar basis, the amount of Capital Expenditures that would have
been permitted to be made in the immediately succeeding Fiscal Year (provided that
the Borrower and its Subsidiaries may apply the CapEx Pull-Forward Amount in such
immediately succeeding Fiscal Year).



     SECTION 7.2.8 Payments With Respect to Certain Indebtedness. The Borrower will not,
and will not permit any of its Subsidiaries to,




     (a) make any payment or prepayment of principal of, or premium or interest on, any
Indebtedness incurred under the 2014 Senior Note Documents or the 2016 Senior Note Documents
(including any redemption or retirement thereof) (i) other than on (or after) the stated,
scheduled date for payment of interest set forth in the applicable 2014 Senior Note
Documents or the 2016 Senior Note Documents, respectively, or (ii) which would violate the
terms of this Agreement, the applicable 2014 Senior Note Documents or the 2016 Senior Note
Documents; provided, however, that the Borrower may prepay Indebtedness
incurred under the 2014 Senior Note Documents or the 2016 Senior Note Documents in an amount
up to $50,000,000 in the aggregate during the term of this Agreement plus any
Available Retained Excess Cash Flow;




     (b) except as otherwise permitted by clause (a) above, prior to the Termination
Date, redeem, retire, purchase, defease or otherwise acquire any Indebtedness under the 2014
Senior Note Documents or the 2016 Senior Note Documents (other than with proceeds from the
issuance of the Borrower’s Capital Securities permitted to be used to redeem 2014 Senior
Notes or 2016 Senior Notes in accordance with the terms of the 2014 Senior Note Documents or
2016 Senior Note Documents, respectively);




     (c) make any deposit (including the payment of amounts into a sinking fund or other
similar fund) for any of the foregoing purposes; or




     (d) make any payment or prepayment of principal of, or premium or interest on, any
Indebtedness (other than intercompany Indebtedness) that is by its express written terms
subordinated to the payment of the Obligations at any time when an Event of Default has
occurred and is continuing.



     SECTION 7.2.9 Issuance of Capital Securities. The Borrower will not permit any of its
Subsidiaries (other than a Receivables Subsidiary and any Foreign Subsidiary) to issue any Capital
Securities (whether for value or otherwise) to any Person other than to the Borrower or another
wholly owned Subsidiary (other than any director’s qualifying shares or investments by foreign
nationals mandated by applicable laws).



     SECTION 7.2.10 Consolidation, Merger; Permitted Acquisitions, etc. The Borrower will
not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or



85









 




merge into or with, any other Person, or purchase or otherwise acquire all or substantially
all of the assets of any Person (or any division or line of business thereof), except





     (a) any Subsidiary may liquidate or dissolve voluntarily into, and may merge with and
into, the Borrower or any other Subsidiary (provided that a Subsidiary Guarantor may
only (i) liquidate or dissolve into, or merge with and into, the Borrower or another
Subsidiary Guarantor or (ii) liquidate or dissolve into, or merge with and into a Subsidiary
that is not a Subsidiary Guarantor to the extent such disposition of assets is otherwise
permitted by Section 7.2.11), and the assets or Capital Securities of any Subsidiary may be
purchased or otherwise acquired by the Borrower or any other Subsidiary (provided
that the assets or Capital Securities of any Subsidiary Guarantor may only (i) be purchased
or otherwise acquired by the Borrower or another Subsidiary Guarantor or (ii) be purchased
or otherwise acquired by a Subsidiary that is not a Subsidiary Guarantor to the extent such
disposition is otherwise permitted by Section 7.2.11); provided, further,
that in no event shall any Subsidiary consolidate with or merge with and into any other
Subsidiary (other than a merger that is otherwise permitted by Section 7.2.11) unless after
giving effect thereto, the Collateral Agent shall have a perfected pledge of, and security
interest in and to, at least the same percentage of the issued and outstanding interests of
Capital Securities (on a fully diluted basis) and other assets of the surviving Person as
the Collateral Agent had immediately prior to such merger or consolidation in form and
substance reasonably satisfactory to the Agents, pursuant to such documentation and opinions
as shall be necessary in the opinion of the Agents to create, perfect or maintain the
collateral position of the Secured Parties therein; and




     (b) so long as no Event of Default has occurred and is continuing or would occur after
giving effect thereto, the Borrower or any of its Subsidiaries may purchase the Capital
Securities of any Person, all or substantially all of the assets of any Person (or any
division or line of business thereof), or acquire such Person by merger, in each case, if
such purchase or acquisition constitutes a Permitted Acquisition; provided that, if
such Person is not incorporated or organized under the laws of the United States, the cash
amount expended in connection with such transaction, when aggregated with the cash amount
expended under clause (g) of Section 7.2.5, shall not exceed $100,000,000 in
the aggregate during the term of this Agreement plus Available Retained Excess Cash
Flow; provided further that any Capital Securities of the Borrower issued to the
seller in connection with any Permitted Acquisition shall not result in a deduction of
amounts available to consummate Permitted Acquisitions hereunder.



     SECTION 7.2.11 Permitted Dispositions. The Borrower will not, and will not permit any
of its Subsidiaries to, Dispose of any of the Borrower’s or such Subsidiaries’ assets (including
accounts receivable and Capital Securities of Subsidiaries) to any Person in one transaction or
series of transactions unless such Disposition is:




     (a) inventory or obsolete, no longer used or useful, damaged, worn out or surplus
property Disposed of in the ordinary course of its business (including, the abandonment of
intellectual property which is obsolete, no longer used or useful or that



86









 






in the Borrower’s good faith judgment is no longer material in the conduct of the
Borrower and is Subsidiaries’ business taken as a whole):




     (b) permitted by Section 7.2.10;




     (c) accounts receivable or any related asset Disposed of pursuant to a Permitted
Securitization or a Permitted Factoring Facility;




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




     (e) of property by the Borrower or any Subsidiary; provided that if the
transferor of such property is an Obligor (i) the transferee must be an Obligor or (ii) to
the extent such transaction constitutes an Investment such transaction is permitted under
Section 7.2.5;




     (f) of cash or Cash Equivalent Investments;




     (g) of accounts receivable in connection with compromise, write down or collection
thereof in the ordinary course of business;




     (h) constituting leases, subleases, licenses or sublicenses of property (including
intellectual property) in the ordinary course of business and which do not materially
interfere with the business of the Borrower and its Subsidiaries;




     (i) constituting a transfer of property subject to a Casualty Event (i) upon receipt of
Net Casualty Proceeds of such Casualty Event or (ii) to a Governmental Authority as a result
of condemnation;




     (j) sales of a non-core assets acquired in connection with a Permitted Acquisition
which are not used or useful or are duplicative in the business of the Borrower or its
Subsidiaries;




     (k) a grant of options to purchase, lease or acquire real or personal property in the
ordinary course of business, so long as the Disposition resulting from the exercise of such
option would otherwise be permitted under this Section 7.2.11;




     (l) Dispositions of Investments in Foreign Subsidiaries, to the extent required by, or
made pursuant to buy/sell arrangements between, Foreign Subsidiaries;




     (m) Dispositions of the property described on Item 7.2.11(m) of the Disclosure
Schedule; or




     (n) Dispositions of assets not otherwise permitted pursuant to preceding clauses
(a) — (m) of this Section 7.2.11 so long as (i) each such Disposition is for
fair market value and the consideration received consists of no less than 75% in cash and
Cash Equivalent Investments, (ii) the Senior Secured Leverage Ratio would not exceed



87









 






0.50:1.00 after giving pro forma effect thereto and (iii) the Net Disposition Proceeds
from such Disposition are applied pursuant to Sections 3.1.1 and 3.1.2.



     SECTION 7.2.12 Modification of Certain Agreements. The Borrower will not, and will
not permit any of its Subsidiaries to, consent to any amendment, supplement, waiver or other
modification of, or enter into any forbearance from exercising any rights with respect to the terms
or provisions contained in,




     (a) the Transaction Documents other than any amendment, supplement, waiver or
modification which would not be materially adverse to the Secured Parties; or




     (b) the Organic Documents of the Borrower or any of its Subsidiaries (other than a
Receivables Subsidiary) other than any amendment, supplement, waiver or modification which
would not be materially adverse to the Secured Parties.



     SECTION 7.2.13 Transactions with Affiliates. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into or cause or permit to exist any arrangement,
transaction or contract (including for the purchase, lease or exchange of property or the rendering
of services) with any of its other Affiliates, unless such arrangement, transaction or contract is
on fair and reasonable terms not materially less favorable to the Borrower or such Subsidiary than
it could obtain in an arm’s-length transaction with a Person that is not an Affiliate other than
arrangements, transactions or contracts (a) between or among the Borrower and any Subsidiaries, (b)
in connection with the cash management of the Borrower and its Subsidiaries in the ordinary course
of business, (c) in connection with a Permitted Securitization including Standard Securitization
Undertakings or a Permitted Factoring Facility or (d) that is a Transaction Document or an Original
Transaction Document.



     SECTION 7.2.14 Restrictive Agreements, etc. The Borrower will not, and will not
permit any of its Subsidiaries (other than a Receivables Subsidiary or a Subsidiary who is party to
a Permitted Factoring Facility) to, enter into any agreement prohibiting




     (a) the creation or assumption of any Lien upon its properties, revenues or assets,
whether now owned or hereafter acquired;




     (b) the ability of any Obligor to amend or otherwise modify any Loan Document; or




     (c) the ability of any Subsidiary (other than a Receivables Subsidiary) to make any
payments, directly or indirectly, to the Borrower, including by way of dividends, advances,
repayments of loans, reimbursements of management and other intercompany charges, expenses
and accruals or other returns on investments (it being understood that (i) the priority of
any preferred stock in receiving dividends or liquidating distributions prior to the
dividends or liquidating distributions being paid on common stock shall not be deemed a
restriction on the ability to make distributions on Capital Securities and (ii) the
subordination of advances or loans made to the Borrower or any Subsidiary to other
Indebtedness incurred by the Borrower or any Subsidiary shall not be deemed a restriction on
the ability to make advances or repay loans).



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The foregoing prohibitions shall not apply to restrictions contained (i) in any Loan Document
(iii) in the cases of clause (a) and (c), in any 2014 Senior Note Document or 2016
Senior Note Document, (iv) in the case of clause (a), any agreement governing any
Indebtedness permitted by clause (n) of Section 7.2.2 as to the assets financed with the
proceeds of such Indebtedness, (v) in the case of clauses (a) and (c), any
agreement of a Foreign Subsidiary governing the Indebtedness permitted to be incurred or permitted
to exist hereunder, (vi) with respect to any Receivables Subsidiary or other Subsidiary who is
party to a Permitted Factoring Facility, in the case of clauses (a) and (c), the
documentation governing any Securitization or Permitted Factoring Facility permitted hereunder,
(vii) solely with respect to clause (a), any arrangement or agreement arising in connection
with a Disposition permitted under this Agreement (but then only with respect to the assets being
so Disposed), (viii) solely with respect to clause (a) and (c), are already binding
on a Subsidiary when it is acquired and (ix) solely with respect to clause (a), customary
restrictions in leases, subleases, licenses and sublicenses.




     SECTION 7.2.15 Sale and Leaseback. The Borrower will not, and will not permit any of
its Subsidiaries to, directly or indirectly enter into any agreement or arrangement providing for
the sale or transfer by it of any property (now owned or hereafter acquired) to a Person and the
subsequent lease or rental of such property or other similar property from such Person, except for
agreements and arrangements with respect to property (a) the fair market value (as determined in
good faith by the chief financial officer of the Borrower) of which does not exceed $150,000,000 in
the aggregate following the Restatement Effective Date or (b) the term of which is less than one
year; provided that, in each case, the Net Disposition Proceeds of such agreements and
arrangements are applied pursuant to Sections 3.1.1 and 3.1.2.



ARTICLE VIII

EVENTS OF DEFAULT




               SECTION 8.1 Listing of Events of Default. Each of the following events or occurrences
described in this Article shall constitute an “Event of Default”.



     SECTION 8.1.1 Non-Payment of Obligations. The Borrower shall default in the payment
or prepayment when due of




     (a) any principal of any Loan, or any Reimbursement Obligation or any deposit of cash
for collateral purposes pursuant to Section 2.6.4;




     (b) any interest on any Loan or any fee described in Article III, and such
default shall continue unremedied for a period of three days after such interest or fee was
due; or




     (c) any other monetary Obligation, and such default shall continue unremedied for a
period of 10 Business Days after such amount was due.



     SECTION 8.1.2 Breach of Warranty. Any representation or warranty of any Obligor made
or deemed to be made in any Loan Document (including any certificates delivered pursuant to
Article V) is or shall be incorrect in any material respect when made or deemed to have
been made.



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     SECTION 8.1.3 Non-Performance of Certain Covenants and Obligations. The Borrower
shall default in the due performance or observance of any of its obligations under Section
7.1.1, Section 7.1.7, Section 7.1.11 or Section 7.2.



     SECTION 8.1.4 Non-Performance of Other Covenants and Obligations. Any Obligor shall
default in the due performance and observance of any other agreement contained in any Loan Document
executed by it, and such default shall continue unremedied for a period of 30 days after the
earlier to occur of (a) notice thereof given to the Borrower by any Agent or any Lender or (b) the
date on which any Obligor has knowledge of such default.



     SECTION 8.1.5 Default on Other Indebtedness. A default shall occur in the payment of
any amount when due (subject to any applicable grace period), whether by acceleration or otherwise,
of any principal or stated amount of, or interest or fees on, any Indebtedness (other than
Indebtedness described in Section 8.1.1) of the Borrower or any of its Subsidiaries (other
than a Receivables Subsidiary or a Subsidiary who is party to a Permitted Factoring Facility) or
any other Obligor having a principal or stated amount, individually or in the aggregate, in excess
of $50,000,000, or a default shall occur in the performance or observance of any obligation or
condition with respect to such Indebtedness if the effect of such default is to accelerate the
maturity of any such Indebtedness or such default shall continue unremedied for any applicable
period of time sufficient to permit the holder or holders of such Indebtedness, or any trustee or
agent for such holders, to cause or declare such Indebtedness to become due and payable or to
require such Indebtedness to be prepaid, redeemed, purchased or defeased, or require an offer to
purchase or defease such Indebtedness to be made, prior to its expressed maturity.



     SECTION 8.1.6 Judgments. Any (a) judgment or order for the payment of money
individually or in the aggregate in excess of $50,000,000 (exclusive of any amounts fully covered
by insurance (less any applicable deductible) or an indemnity by any other third party Person and
as to which the insurer or such Person has acknowledged its responsibility to cover such judgment
or order not denied in writing) shall be rendered against the Borrower or any of its Subsidiaries
(other than a Receivables Subsidiary) and such judgment shall not have been vacated or discharged
or stayed or bonded pending appeal within 45 days after the entry thereof or enforcement
proceedings shall have been commenced by any creditor upon such judgment or order or (b)
non-monetary judgment or order that has had, or could reasonably be expected to have, a Material
Adverse Effect.



     SECTION 8.1.7 Pension Plans. Any of the following events shall occur with respect to
any Pension Plan




     (a) the institution of any steps by the Borrower, any member of its Controlled Group or
any other Person to terminate a Pension Plan if, as a result of such termination, the
Borrower or any such member could be required to make a contribution to such Pension Plan,
or could reasonably expect to incur a liability or obligation to such Pension Plan, in
excess of $50,000,000; or




     (b) a contribution failure occurs with respect to any Pension Plan sufficient to give
rise to a Lien in excess of $50,000,000 under Section 302(f) of ERISA.



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     SECTION 8.1.8 Change in Control. Any Change in Control shall occur.



     SECTION 8.1.9 Bankruptcy, Insolvency, etc. The Borrower, any of its Subsidiaries
(other than a Receivables Subsidiary) or any other Obligor shall




     (a) become insolvent or generally fail to pay, or admit in writing its inability or
unwillingness generally to pay, debts as they become due;




     (b) apply for, consent to, or acquiesce in the appointment of a trustee, receiver,
sequestrator or other custodian for any substantial part of the property of any thereof, or
make a general assignment for the benefit of creditors;




     (c) in the absence of such application, consent or acquiescence in or permit or suffer
to exist the appointment of a trustee, receiver, sequestrator or other custodian for a
substantial part of the property of any thereof, and such trustee, receiver, sequestrator or
other custodian shall not be discharged, stayed, vacated or bonded pending appeal within 60
days; provided that, the Borrower, each Subsidiary and each other Obligor hereby
expressly authorizes each Secured Party to appear in any court conducting any relevant
proceeding during such 60-day period to preserve, protect and defend their rights under the
Loan Documents;




     (d) permit or suffer to exist the commencement of any bankruptcy, reorganization, debt
arrangement or other case or proceeding under any bankruptcy or insolvency law or any
dissolution, winding up or liquidation proceeding, in respect thereof, and, if any such case
or proceeding is not commenced by the Borrower, any Subsidiary or any Obligor, such case or
proceeding shall be consented to or acquiesced in by the Borrower, such Subsidiary or such
Obligor, as the case may be, or shall result in the entry of an order for relief or shall
remain for 60 days undismissed, undischarged, unstayed or unbonded pending appeal;
provided that, the Borrower, each Subsidiary and each Obligor hereby expressly
authorizes each Secured Party to appear in any court conducting any such case or proceeding
during such 60-day period to preserve, protect and defend their rights under the Loan
Documents; or




     (e) take any action authorizing, or in furtherance of, any of the foregoing.



     SECTION 8.1.10 Impairment of Security, etc. Any Loan Document or any Lien granted
thereunder (effecting a material portion of the Collateral, taken as a whole) shall (except in
accordance with its terms), in whole or in part, terminate, cease to be effective or cease to be
the legally valid, binding and enforceable obligation of any Obligor party thereto (other than
pursuant to a failure of the Administrative Agent, any collateral agent appointed by the
Administrative Agent or the Lenders to take any action within the sole control of such Person); any
Obligor or any other party shall, directly or indirectly, contest in any manner such effectiveness,
validity, binding nature or enforceability; or, except as permitted under any Loan Document, any
Lien securing any Obligation shall, in whole or in part, cease to be a perfected first priority
Lien or any Obligor shall so assert (other than, in each case, pursuant to a failure of the
Administrative Agent, any collateral agent appointed by the Administrative Agent or the Lenders to
take any action within the sole control of such Person).




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               SECTION 8.2 Action if Bankruptcy. If any Event of Default described in clauses
(a) through (d) of Section 8.1.9 with respect to the Borrower shall occur, the
Commitments (if not theretofore terminated) shall automatically terminate and the outstanding
principal amount of all outstanding Loans and all other Obligations (including Reimbursement
Obligations) shall automatically be and become immediately due and payable, without notice or
demand to any Person and each Obligor shall automatically and immediately be obligated to Cash
Collateralize all Letter of Credit Outstandings.



               SECTION 8.3 Action if Other Event of Default. If any Event of Default (other than any
Event of Default described in clauses (a) through (d) of Section 8.1.9 with respect to the
Borrower) shall occur for any reason, whether voluntary or involuntary, and be continuing, the
Administrative Agent, upon the direction of the Required Lenders, shall by notice to the Borrower
declare all or any portion of the outstanding principal amount of the Loans and other Obligations
(including Reimbursement Obligations) to be due and payable and/or the Commitments (if not
theretofore terminated) to be terminated, whereupon the full unpaid amount of such Loans and other
Obligations which shall be so declared due and payable shall be and become immediately due and
payable, without further notice, demand or presentment, and/or, as the case may be, the Commitments
shall terminate and the Borrower shall automatically and immediately be obligated to Cash
Collateralize all Letter of Credit Outstandings.



ARTICLE IX

THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT; THE LEAD 

ARRANGERS, THE SYNDICATION AGENT AND THE
DOCUMENTATION AGENT




               SECTION 9.1 Actions. Each Lender hereby appoints JPMorgan as its Administrative Agent
and as its Collateral Agent, under and for purposes of each Loan Document. Each Lender authorizes
each Agent to act on behalf of such Lender under each Loan Document and, in the absence of other
written instructions from the Required Lenders received from time to time by such Agent (with
respect to which each Agent agrees that it will comply, except as otherwise provided in this
Section or as otherwise advised by counsel in order to avoid contravention of applicable law), to
exercise such powers hereunder and thereunder as are specifically delegated to or required of such
Agent by the terms hereof and thereof, together with such powers as may be incidental thereto
(including the release of Liens on assets Disposed of in accordance with the terms of the Loan
Documents). Each Lender hereby indemnifies (which indemnity shall survive any termination of this
Agreement) each Agent, pro rata according to such Lender’s proportionate Total
Exposure Amount, from and against any and all liabilities, obligations, losses, damages, claims,
costs or expenses of any kind or nature whatsoever which may at any time be imposed on, incurred
by, or asserted against, such Agent in any way relating to or arising out of any Loan Document
(including reasonable attorneys’ fees and expenses), and as to which such Agent is not reimbursed
by the Borrower (and without limiting its obligation to do so); provided that no Lender
shall be liable for the payment of any portion of such liabilities, obligations, losses, damages,
claims, costs or expenses which are determined by a court of competent jurisdiction in a final
proceeding to have resulted from such Agent’s gross negligence or willful misconduct. No Agent
shall be required to take any action under any Loan Document, or to prosecute or defend any suit in
respect of any Loan Document, unless it is indemnified hereunder to its reasonable satisfaction.
If any indemnity in favor of any Agent shall be or become, in such Agent’s determination,
inadequate, such Agent may call for additional



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indemnification from the Lenders and cease to do the acts indemnified against hereunder until
such additional indemnity is given.




               SECTION 9.2 Funding Reliance, etc. Unless the Administrative Agent shall have been
notified in writing by any Lender by 3:00 p.m. on the Business Day prior to a Borrowing that such
Lender will not make available the amount which would constitute its Percentage of such Borrowing
on the date specified therefor, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent and, in reliance upon such assumption, make available
to the Borrower a corresponding amount. If and to the extent that such Lender shall not have made
such amount available to the Administrative Agent, such Lender and the Borrower severally agree to
repay the Administrative Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date the Administrative Agent made such amount available to the
Borrower to the date such amount is repaid to the Administrative Agent, at the interest rate
applicable at the time to Loans comprising such Borrowing (in the case of the Borrower) and (in the
case of a Lender), at the Federal Funds Rate (for the first two Business Days after which such
amount has not been repaid), and thereafter at the interest rate applicable to Loans comprising
such Borrowing.



               SECTION 9.3 Exculpation. Neither any Lead Arranger, any Agent nor any of its
directors, officers, employees, agents or Affiliates shall be liable to any Secured Party for any
action taken or omitted to be taken by it under any Loan Document, or in connection therewith,
except for its own willful misconduct or gross negligence, nor responsible for any recitals or
warranties herein or therein, nor for the effectiveness, enforceability, validity or due execution
of any Loan Document, or the validity, genuineness, enforceability, existence, value or sufficiency
of any collateral security, nor to make any inquiry respecting the performance by any Obligor of
its Obligations. Any such inquiry which may be made by a Lead Arranger or an Agent shall not
obligate it to make any further inquiry or to take any action. Each Lead Arranger and each Agent
shall be entitled to rely upon advice of counsel concerning legal matters and upon any notice,
consent, certificate, statement or writing which such Lead Arranger or such Agent believes to be
genuine and to have been presented by a proper Person.



               SECTION 9.4 Successor. Any Agent may resign as such at any time upon at least 30
days’ prior notice to the Borrower and all Lenders. If any Agent at any time shall resign, the
Required Lenders may appoint (subject to, so long as no Event of Default has occurred and is
continuing, the reasonable consent of the Borrower not to be unreasonably withheld or delayed)
another Lender as such Person’s successor Agent which shall thereupon become the applicable Agent
hereunder. If no successor Agent shall have been so appointed by the Required Lenders (and
consented to by the Borrower) and shall have accepted such appointment within 30 days after the
retiring such Agent’s giving notice of resignation, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be one of the Lenders or a commercial banking
institution organized under the laws of the United States (or any State thereof) or a United States
branch or agency of a commercial banking institution, and having a combined capital and surplus of
at least $250,000,000; provided that, if, such retiring Agent is unable to find a
commercial banking institution which is willing to accept such appointment and which meets the
qualifications set forth in above, the retiring Agent’s resignation shall nevertheless thereupon
become effective and the Lenders shall assume and perform all of the duties of such Agent hereunder
until such time, if any, as the Required Lenders



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appoint a successor as provided for above. Upon the acceptance of any appointment as an Agent
hereunder by any successor Agent, such successor Agent shall be entitled to receive from the
retiring Agent such documents of transfer and assignment as such successor Agent may reasonably
request, and shall thereupon succeed to and become vested with all rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under the Loan Documents. After any retiring Agent’s resignation hereunder as an
Agent, the provisions of this Article shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was an Agent under the Loan Documents, and Section 10.3 and
Section 10.4 shall continue to inure to its benefit.




               SECTION 9.5 Loans by JPMorgan Chase Bank. JPMorgan Chase Bank shall have the same
rights and powers with respect to (a) the Credit Extensions made by it or any of its Affiliates,
and (b) the Notes held by it or any of its Affiliates as any other Lender and may exercise the same
as if it were not an Agent. JPMorgan Chase Bank and its Affiliates may accept deposits from, lend
money to, and generally engage in any kind of business with the Borrower or any Subsidiary or
Affiliate of the Borrower as if JPMorgan Chase Bank were not an Agent hereunder.



               SECTION 9.6 Credit Decisions. Each Lender acknowledges that it has, independently of
the Administrative Agent and each other Lender, and based on such Lender’s review of the financial
information of the Borrower, the Loan Documents (the terms and provisions of which being
satisfactory to such Lender) and such other documents, information and investigations as such
Lender has deemed appropriate, made its own credit decision to extend its Commitments. Each Lender
also acknowledges that it will, independently of the Administrative Agent and each other Lender,
and based on such other documents, information and investigations as it shall deem appropriate at
any time, continue to make its own credit decisions as to exercising or not exercising from time to
time any rights and privileges available to it under the Loan Documents.



               SECTION 9.7 Copies, etc. Each Agent shall give prompt notice to each Lender of each
notice or request required or permitted to be given to such Agent by the Borrower pursuant to the
terms of the Loan Documents (unless concurrently delivered to the Lenders by the Borrower). Each
Agent will distribute to each Lender each document or instrument received for its account and
copies of all other communications received by such Agent from the Borrower for distribution to the
Lenders by such Agent in accordance with the terms of the Loan Documents. No Agent shall, except
as expressly set forth in the Loan Documents, have any duty to disclose, and shall not be liable
for the failure to disclose, any information relating to the Borrower or any of its Affiliates that
is communicated to or obtained by any Agent or any of its Affiliates in any capacity.



               SECTION 9.8 Reliance by Agents. The Agents shall be entitled to rely upon any
certification, notice or other communication (including any thereof by telephone, telecopy,
telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or
on behalf of the proper Person, and upon advice and statements of legal counsel, independent
accountants and other experts selected by such Agent. As to any matters not expressly provided for
by the Loan Documents, the Agents shall in all cases be fully protected in acting, or in refraining
from acting, thereunder in accordance with instructions given by the



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Required Lenders or all of the Lenders as is required in such circumstance, and such
instructions of such Lenders and any action taken or failure to act pursuant thereto shall be
binding on all Secured Parties. For purposes of applying amounts in accordance with this Section,
the Agents shall be entitled to rely upon any Secured Party that has entered into a Rate Protection
Agreement with any Obligor for a determination (which such Secured Party agrees to provide or cause
to be provided upon request of any Agent) of the outstanding Obligations owed to such Secured Party
under any Rate Protection Agreement. Unless it has actual knowledge evidenced by way of written
notice from any such Secured Party and the Borrower to the contrary, the Agents, in acting in such
capacity under the Loan Documents, shall be entitled to assume that no Rate Protection Agreements
or Obligations in respect thereof are in existence or outstanding between any Secured Party and any
Obligor.




               SECTION 9.9 Defaults. The Administrative Agent shall not be deemed to have knowledge
or notice of the occurrence of a Default (other than a Default under Section 8.1.1) unless
the Administrative Agent has received a written notice from a Lender or the Borrower specifying
such Default and stating that such notice is a “Notice of Default”. In the event that the
Administrative Agent receives such a notice of the occurrence of a Default, the Administrative
Agent shall give prompt notice thereof to the Lenders. The Administrative Agent shall (subject to
Section 10.1) take such action with respect to such Default as shall be directed by the
Required Lenders; provided that, unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default as it shall deem advisable
in the best interest of the Secured Parties except to the extent that this Agreement expressly
requires that such action be taken, or not be taken, only with the consent or upon the
authorization of the Required Lenders or all Lenders.



               SECTION 9.10 Lead Arrangers, Syndication Agents and Documentation Agents.
Notwithstanding anything else to the contrary contained in this Agreement or any other Loan
Document, the Lead Arrangers, the Syndication Agents and the Documentation Agents, in their
respective capacities as such, each in such capacity, shall have no duties or responsibilities
under this Agreement or any other Loan Document nor any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or otherwise exist against such Person in such capacity. Each Lead Arranger
shall at all times have the right to receive current copies of the Register and any other
information relating to the Lenders and the Loans that they may request from the Administrative
Agent. Each Lead Arranger shall at all times have the right to receive a current copy of the
Register and any other information relating to the Lenders and the Loans that they may request from
the Administrative Agent.



               SECTION 9.11 Posting of Approved Electronic Communications.




     (a) The Borrower hereby agrees, unless directed otherwise by the Administrative Agent
or unless the electronic mail address referred to below has not been provided by the
Administrative Agent to the Borrower, that it will, or will cause its Subsidiaries to,
provide to the Administrative Agent all information, documents and other materials that it
is obligated to furnish to the Administrative Agent pursuant to the Loan Documents or to the
Lenders under Section 7.1.1, including all notices, requests,



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financial statements, financial and other reports, certificates and other information
materials, but excluding any such communication that (i) is or relates to a Borrowing
Request, a Continuation/Conversion Notice or an Issuance Request, (ii) relates to the
payment of any principal or other amount due under this Agreement prior to the scheduled
date therefor and (iii) provides notice of any Default (all such non-excluded communications
being referred to herein collectively as “Communications”), by transmitting the
Communications in an electronic/soft medium that is properly identified in a format
reasonably acceptable to the Administrative Agent to an electronic mail address as directed
by the Administrative Agent; provided for the avoidance of doubt the items described
in clauses (i) and (iii) above may be delivered via facsimile transmissions.
In addition, the Borrower agrees, and agrees to cause its Subsidiaries, to continue to
provide the Communications to the Administrative Agent or the Lenders, as the case may be,
in the manner specified in the Loan Documents but only to the extent requested by the
Administrative Agent.




     (b) The Borrower further agrees that the Administrative Agent may make the
Communications available to the Lenders by posting the Communications on Intralinks or a
substantially similar secure electronic transmission system (the “Platform”).




     (c) THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE INDEMNIFIED PARTIES DO
NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS OR THE ADEQUACY OF THE
PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO
WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE INDEMNIFIED PARTIES IN CONNECTION
WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL ANY PARTY HERETO HAVE ANY
LIABILITY TO ANY OBLIGOR, ANY LENDER OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR
NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING
OUT OF ANY OBLIGOR’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH
THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF SUCH PERSON IS FOUND IN A FINAL RULING
BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH INDEMNIFIED
PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.




     (d) The Administrative Agent agrees that the receipt of the Communications by the
Administrative Agent at the e-mail address set forth on Schedule II shall constitute
effective delivery of the Communications to the Administrative Agent for purposes of the
Loan Documents. Each Lender agrees that receipt of notice to it (as provided in the next
sentence) specifying that the Communications have been posted to the Platform shall
constitute effective delivery of the Communications to such Lender for purposes of the



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Loan Documents. Each Lender agrees to notify the Administrative Agent in writing
(including by electronic communication) from time to time of such Lender’s e-mail address to
which the foregoing notice may be sent by electronic transmission and that the foregoing
notice may be sent to such e-mail address.




     (e) Nothing herein shall prejudice the right of any Agent or any Lender to give any
notice or other communication pursuant to any Loan Document in any other manner specified in
such Loan Document.



ARTICLE X

MISCELLANEOUS PROVISIONS





               SECTION 10.1 Waivers, Amendments, etc. The provisions of each Loan Document (other
than Rate Protection Agreements or Letters of Credit, which shall be modified only in accordance
with their respective terms) may from time to time be amended, modified or waived, if such
amendment, modification or waiver is in writing and consented to by the Borrower and the Required
Lenders; provided that, no such amendment, modification or waiver shall:




     (a) modify Section 4.7, Section 4.8 (as it relates to sharing of
payments) or this Section, in each case, without the consent of each affected Lender;




     (b) increase the aggregate amount of any Loans required to be made by a Lender pursuant
to its Commitments, extend the final Commitment Termination Date of Loans made (or
participated in) by a Lender or extend the final Stated Maturity Date for any Lender’s Loan,
in each case without the consent of such Lender (it being agreed, however, that any vote to
rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of
amounts owing with respect to the Loans and other Obligations shall only require the vote of
the Required Lenders);




     (c) reduce (by way of forgiveness), the principal amount of or reduce the rate of
interest on any Lender’s Loan, reduce any fees described in Article III payable to
any Lender or extend the date on which interest, principal or fees are payable in respect of
such Lender’s Loans, in each case without the consent of such Lender (provided that,
the vote of Required Lenders shall be sufficient to waive the payment, or reduce the
increased portion, of interest accruing under Section 3.2.2 and such waiver shall
not constitute a reduction of the rate of interest hereunder);




     (d) reduce the percentage set forth in the definition of “Required Lenders” or modify
any requirement hereunder that any particular action be taken by all Lenders without the
consent of all Lenders;




     (e) increase the Stated Amount of any Letter of Credit unless consented to by the
Issuer of such Letter of Credit;




     (f) except as otherwise expressly provided in a Loan Document, release (i) the Borrower
from its Obligations under the Loan Documents or any Subsidiary



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Guarantor from its obligations under the Guaranty or (ii) all or substantially all of
the collateral under the Loan Documents, in each case without the consent of all Lenders; or




     (g) affect adversely the interests, rights or obligations of the Administrative Agent
(in its capacity as the Administrative Agent), the Collateral Agent (in its capacity as the
Collateral Agent) any Issuer (in its capacity as Issuer), or the Swing Line Lender (in its
capacity as Swing Line Lender) unless consented to by such Agent, such Issuer,or such Swing
Line Lender, as the case may be.


No failure or delay on the part of any Secured Party in exercising any power or right under any
Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any
such power or right preclude any other or further exercise thereof or the exercise of any other
power or right. No notice to or demand on any Obligor in any case shall entitle it to any notice
or demand in similar or other circumstances. No waiver or approval by any Secured Party under any
Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to
subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar
waiver or approval thereafter to be granted hereunder.



Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the
written consent of the Required Lenders, and the Borrower (a) to add one or more additional credit
facilities to this Agreement and to permit the extensions of credit from time to time outstanding
thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of
this Agreement and the other Loan Documents with the Obligations and (b) to include appropriately
the Lenders holding such credit facilities in any determination of the Required Lenders.



Further, notwithstanding anything to the contrary contained in Section 10.1, if within
sixty days following the Restatement Effective Date, the Administrative Agent and the Borrower
shall have jointly identified an obvious error or any error or omission of a technical or
immaterial nature, in each case, in any provision of the Loan Documents, then the Administrative
Agent and the Borrower shall be permitted to amend such provision and such amendment shall become
effective without any further action or consent of any other party to any Loan Document if the same
is not objected to in writing by the Required Lenders within five Business Days following receipt
of notice thereof.




               SECTION 10.2 Notices; Time. All notices and other communications provided under each
Loan Document shall be in writing or by facsimile (except to the extent provided below in this
Section 10.2 with respect to Issuance Requests and financial information) and addressed,
delivered or transmitted, if to the Borrower, an Agent, a Lender or an Issuer, to the applicable
Person at its address or facsimile number set forth on the signature pages hereto, Schedule
II hereto or set forth in the Lender Assignment Agreement, or at such other address or
facsimile number as may be designated by such party in a notice to the other parties. Any notice,
if mailed and properly addressed with postage prepaid or if properly addressed and sent by pre-paid
courier service, shall be deemed given when received; any notice, if transmitted by facsimile,
shall be deemed given when the confirmation of transmission thereof is received by the transmitter.
Except as set forth in Section 9.11 and below, electronic mail and Internet and intranet
websites may be used only to distribute routine communications by the Administrative



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Agent to the Lender, such as financial statements and other information as provided in
Section 7.1.1, for the distribution and execution of Loan Documents for execution by the
parties thereto and (to the extent provided herein, for the delivery of each Issuance Request) and
may not be used for any other purpose. Notwithstanding the foregoing, the parties hereto agree
that delivery of an executed counterpart of a signature page to this Agreement and each other Loan
Document by facsimile (or other electronic) transmission shall be effective as delivery of an
original executed counterpart of this Agreement or such other Loan Document. Unless otherwise
indicated, all references to the time of a day in a Loan Document shall refer to New York time.




               SECTION 10.3 Payment of Costs and Expenses. The Borrower agrees to pay within 20 days
of demand (to the extent invoiced together with reasonably detailed supporting documentation) all
reasonable out-of-pocket expenses of each Lead Arranger and each Agent (including the reasonable
fees and reasonable out-of-pocket expenses of counsel to the Lead Arrangers and Agents and of local
counsel, if any, who may be retained by or on behalf of the Lead Arrangers and Agents) and each
Issuer in connection with




     (a) the negotiation, preparation, execution and delivery of each Loan Document,
including schedules and exhibits, and any amendments, waivers, consents, supplements or
other modifications to any Loan Document as may from time to time hereafter be required,
whether or not the transactions contemplated hereby are consummated; and




     (b) the filing or recording of any Loan Document (including any Filing Statements) and
all amendments, supplements, amendment and restatements and other modifications to any
thereof, searches made following the Restatement Effective Date in jurisdictions where
Filing Statements (or other documents evidencing Liens in favor of the Secured Parties) have
been recorded and any and all other documents or instruments of further assurance required
to be filed or recorded by the terms of any Loan Document; and




     (c) the preparation and review of the form of any document or instrument relevant to
any Loan Document.


The Borrower further agrees to pay, and to save each Secured Party harmless from all liability for,
any stamp or other taxes which may be payable in connection with the execution or delivery of each
Loan Document, the Credit Extensions or the issuance of the Notes. The Borrower also agrees to
reimburse the Agents and the Secured Parties upon demand for all reasonable out-of-pocket expenses
(including reasonable attorneys’ fees and legal out of pocket expenses of counsel to the Agents and
the Secured Parties) incurred by the Agents and the Secured Parties in connection with (A) the
negotiation of any restructuring or “work-out” with the Borrower, whether or not consummated, of
any Obligations and (B) the enforcement of any Obligations; provided that the Borrower
shall not be required to reimburse the legal fees and expenses of more than one outside counsel (in
addition to any local counsel) for all Persons indemnified under this Section 10.3 unless,
as reasonably determined by such Person seeking indemnification hereunder or its counsel,
representation of all such indemnified persons by the same counsel would be inappropriate due to
actual or potential differing interests between them.







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               SECTION 10.4 Indemnification. In consideration of the execution and delivery of this
Agreement by each Secured Party, the Borrower hereby indemnifies, exonerates and holds each Secured
Party, each Co-Syndication Agent, each Co-Documentation Agent and each of their respective
officers, directors, employees, agents, trustees, fund advisors and Affiliates (collectively, the
“Indemnified Parties”) free and harmless from and against any and all actions, causes of
action, suits, losses, costs, liabilities and damages, and expenses incurred in connection
therewith (irrespective of whether any such Indemnified Party is a party to the action for which
indemnification hereunder is sought), including reasonable attorneys’ fees and disbursements,
whether incurred in connection with actions between or among the parties hereto or the parties
hereto and third parties (collectively, the “Indemnified Liabilities”), incurred by the
Indemnified Parties or any of them as a result of, or arising out of, or relating to




     (a) any transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of any Credit Extension, including all Indemnified Liabilities
arising in connection with the Transaction;




     (b) the entering into and performance of any Loan Document by any of the Indemnified
Parties (including any action brought by or on behalf of the Borrower as the result of any
determination by the Required Lenders pursuant to Article V not to fund any Credit
Extension, provided that, any such action is resolved in favor of such Indemnified
Party);




     (c) any investigation, litigation or proceeding related to any acquisition or proposed
acquisition by any Obligor or any Subsidiary thereof of all or any portion of the Capital
Securities or assets of any Person, whether or not an Indemnified Party is party thereto;




     (d) any investigation, litigation or proceeding related to any environmental cleanup,
audit, compliance or other matter relating to the protection of the environment or the
Release by any Obligor or any Subsidiary thereof of any Hazardous Material;




     (e) the presence on or under, or the escape, seepage, leakage, spillage, discharge,
emission, discharging or releases from, any real property owned or operated by any Obligor
or any Subsidiary thereof of any Hazardous Material (including any losses, liabilities,
damages, injuries, costs, expenses or claims asserted or arising under any Environmental
Law), regardless of whether caused by, or within the control of, such Obligor or Subsidiary;
or




     (f) each Lender’s Environmental Liability (the indemnification herein shall survive
repayment of the Obligations and any transfer of the property of any Obligor or its
Subsidiaries by foreclosure or by a deed in lieu of foreclosure for any Lender’s
Environmental Liability, regardless of whether caused by, or within the control of, such
Obligor or such Subsidiary);


except for Indemnified Liabilities arising for the account of any Indemnified Party by reason of
any Indemnified Party’s gross negligence, bad faith or willful misconduct as finally determined by
a court of competent jurisdiction. The Borrower shall not be required to reimburse the legal






100









 







fees and expenses of more than one outside counsel for all Indemnified Parties with respect to any
matter for which indemnification is sought unless, as reasonably determined by any such Indemnified
Party or its counsel, representation of all such Indemnified Parties would create an actual
conflict of interest. Each Obligor and its successors and assigns hereby waive, release and agree
not to make any claim or bring any cost recovery action against, any Indemnified Party under CERCLA
or any state equivalent, or any similar law now existing or hereafter enacted. It is expressly
understood and agreed that to the extent that any Indemnified Party is strictly liable under any
Environmental Laws, each Obligor’s obligation to such Indemnified Party under this indemnity shall
likewise be without regard to fault on the part of any Obligor with respect to the violation or
condition which results in liability of an Indemnified Party. If and to the extent that the
foregoing undertaking may be unenforceable for any reason, each Obligor agrees to make the maximum
contribution to the payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. To the extent that the Borrower fails to pay an amount required
to be paid by it to an Issuer under Section 10.3 or 10.4, each Revolving Loan
Lender severally agrees to pay to such Issuer such Revolving Loan Lender’s Revolving Loan
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment
is sought) of such unpaid amount, provided that such unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against such Issuer in its capacity as such.




               SECTION 10.5 Survival. The obligations of the Borrower under Sections 4.3,
4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations
of the Lenders under Section 9.1, shall in each case survive any assignment from one Lender
to another (in the case of Sections 10.3 and 10.4) and the occurrence of the
Termination Date. The representations and warranties made by each Obligor in each Loan Document
shall survive the execution and delivery of such Loan Document.



               SECTION 10.6 Severability. Any provision of any Loan Document which is prohibited or
unenforceable in any jurisdiction shall, as to such provision and such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining provisions
of such Loan Document or affecting the validity or enforceability of such provision in any other
jurisdiction.



               SECTION 10.7 Headings. The various headings of each Loan Document are inserted for
convenience only and shall not affect the meaning or interpretation of such Loan Document or any
provisions thereof.



               SECTION 10.8 Execution in Counterparts, Effectiveness, etc. This Agreement may be
executed by the parties hereto in several counterparts, each of which shall be an original and all
of which shall constitute together but one and the same agreement. This Agreement shall become
effective when counterparts hereof executed on behalf of the Borrower, each Agent and each Lender
(or notice thereof satisfactory to the Administrative Agent), shall have been received by the
Administrative Agent.



               SECTION 10.9 Governing Law; Entire Agreement. EACH LOAN DOCUMENT (OTHER THAN THE
LETTERS OF CREDIT, TO THE EXTENT SPECIFIED BELOW AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN A
LOAN



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DOCUMENT) WILL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK). EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO LAWS
OR RULES ARE DESIGNATED, THE INTERNATIONAL STANDBY PRACTICES (ISP98—INTERNATIONAL CHAMBER OF
COMMERCE PUBLICATION NUMBER 590 (THE “ISP RULES”)) AND, AS TO MATTERS NOT GOVERNED BY THE
ISP RULES, THE INTERNAL LAWS OF THE STATE OF NEW YORK. The Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject matter thereof and supersede any
prior agreements, written or oral, with respect thereto.




               SECTION 10.10 Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and assigns;
provided that, the Borrower may not assign or transfer its rights or obligations hereunder
without the consent of all Lenders. Each Affiliate of HSBC or any other Lender that has issued a
Letter of Credit hereunder shall be an express third party beneficiary of this Agreement and
entitled to enforce its rights hereunder (and under any other applicable Loan Documents) to the
same extent as if an Issuer party hereto.



               SECTION 10.11 Sale and Transfer of Credit Extensions; Participations in Credit Extensions;
Notes. Each Lender may assign, or sell participations in, its Loans, Letters of Credit and
Commitments to one or more other Persons in accordance with the terms set forth below.



     (a) Subject to clause (b), any Lender may assign to one or more Eligible Assignees all
or a portion of its rights and obligations under the Loan Documents (including all or a portion of
its Commitments and the Loans at the time owing to it); provided that:




     (i) except in the case of (A) an assignment of the entire remaining amount of the
assigning Lender’s Commitments and the Loans at the time owing to it or (B) an assignment to
a Lender, an Affiliate of a Lender or an Approved Fund with respect to a Lender, the
aggregate amount of the Commitments (which for this purpose includes Loans outstanding
thereunder) or principal outstanding balance of the Loans of the assigning Lender subject to
each such assignment (determined as of the date the Lender Assignment Agreement with respect
to such assignment is delivered to the Administrative Agent) shall not be less than
$1,000,000, unless the Administrative Agent and the Borrower, otherwise consent (which
consent shall not be unreasonably withheld or delayed);




     (ii) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement with respect to the
Loans and the Commitments assigned except that this clause (a)(ii) shall not
prohibit any Lender from assigning all or a portion of its rights and obligations among
separate tranches of Revolving Loans and New Term Loans on a non-pro rata
basis; and



102









 






     (iii) the parties to each assignment shall execute and deliver to the Administrative
Agent a Lender Assignment Agreement, together with, if the Eligible Assignee is not already
Lender, administrative details information with respect to such Eligible Assignee and
applicable tax forms.



     (b) Any assignment proposed pursuant to clause (a) to any Person shall be subject to
the prior written approval, not to be unreasonably withheld or delayed, of (i) the Administrative
Agent, unless the assignee is a Lender or an Affiliate of a Lender or an Approved Fund, and (ii) in
the case of any assignment of any Revolving Loan Commitment, the Borrower (unless (A) there is an
Event of Default that is continuing or (B) the assignee is a Lender or an Affiliate of a Lender or
an Approved Fund), the Swing Line Lender and each Issuer. If the consent of the Borrower to an
assignment or to an Eligible Assignee is required hereunder (including a consent to an assignment
which does not meet the minimum assignment thresholds specified in this Section), the Borrower
shall be deemed to have given its consent seven Business Days after the date notice thereof has
been delivered by the assigning Lender (through the Administrative Agent) to the Borrower, unless
such consent is expressly refused by the Borrower prior to such seventh Business Day.



     (c) Subject to acceptance and recording thereof by the Administrative Agent pursuant to
clause (d), from and after the effective date specified in each Lender Assignment
Agreement, (i) the Eligible Assignee thereunder shall (if not already a Lender) be a party hereto
and, to the extent of the interest assigned by such Lender Assignment Agreement, have the rights
and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender thereunder
shall (subject to Section 10.5) be released from its obligations under the Loan Documents,
to the extent of the interest assigned by such Lender Assignment Agreement (and, in the case of a
Lender Assignment Agreement covering all of the assigning Lender’s rights and obligations under the
Loan Documents, such Lender shall cease to be a party hereto, but shall (as to matters arising
prior to the effectiveness of the Lender Assignment Agreement) continue to be entitled to the
benefits of any provisions of the Loan Documents which by their terms survive the termination of
this Agreement). Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with the terms of this Section shall be treated for purposes of the
Loan Documents as a sale by such Lender of a participation in such rights and obligations in
accordance with clause (e).



     (d) The Administrative Agent shall record each assignment made in accordance with this Section
in the Register pursuant to clause (a) of Section 2.7. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time upon reasonable
prior notice to the Administrative Agent.



     (e) Any Lender may, without the consent of, or notice to, any Person, sell participations to
one or more Persons (other than individuals) (a “Participant”) in all or a portion of such
Lender’s rights or obligations under the Loan Documents (including all or a portion of its
Commitments or the Loans owing to it); provided that, (i) such Lender’s obligations under
the Loan Documents shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under the Loan Documents. Any



103









 




agreement or instrument pursuant to which a Lender sells a participation shall provide that
such Lender shall retain the sole right to enforce the rights and remedies of a Lender under the
Loan Documents and to approve any amendment, modification or waiver of any provision of the Loan
Documents; provided that, such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, take any action of the type described in clauses
(a) through (d) or clause (f) of Section 10.1 with respect to
Obligations participated in by that Participant. Subject to clause (f), the Borrower
agrees that each Participant shall be entitled to the benefits of Sections 4.3,
4.4, 4.5, 4.6, 7.1.1, 10.3 and 10.4 to the same
extent as if it were a Lender and had acquired its interest by assignment pursuant to clause
(c). To the extent permitted by law, each Participant also shall be entitled to the benefits
of Section 4.9 as though it were a Lender, but only if such Participant agrees to be
subject to Section 4.8 as though it were a Lender.




     (f) A Participant shall not be entitled to receive any greater payment under Section
4.3, 4.4, 4.5, 4.6, 10.3 or 10.4 than the applicable
Lender would have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made with the Borrower’s
prior written consent. A Participant that would be a Non-U.S. Lender if it were a Lender shall not
be entitled to the benefits of Section 4.6 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with the requirements set forth in Section 4.6 as though it were a
Lender. Any Lender that sells a participating interest in any Loan, Commitment or other interest
to a Participant under this Section shall indemnify and hold harmless the Borrower and the
Administrative Agent from and against any taxes, penalties, interest or other costs or losses
(including reasonable attorneys’ fees and expenses) incurred or payable by the Borrower or the
Administrative Agent as a result of the failure of the Borrower or the Administrative Agent to
comply with its obligations to deduct or withhold any Taxes from any payments made pursuant to this
Agreement to such Lender or the Administrative Agent, as the case may be, which Taxes would not
have been incurred or payable if such Participant had been a Non-U.S. Lender that was entitled to
deliver to the Borrower, the Administrative Agent or such Lender, and did in fact so deliver, a
duly completed and valid Form W-8BEN or W-8ECI (or applicable successor form) entitling such
Participant to receive payments under this Agreement without deduction or withholding of any United
States federal taxes.



     (g) Any Lender may, without the consent of any other Person, at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or
any central bank; provided that no such pledge or assignment of a security interest shall
release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee
for such Lender as a party hereto.



               SECTION 10.12 Other Transactions. Nothing contained herein shall preclude any Agent,
any Issuer or any other Lender from engaging in any transaction, in addition to those contemplated
by the Loan Documents, with the Borrower or any of its Affiliates in which the Borrower or such
Affiliate is not restricted hereby from engaging with any other Person.



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               SECTION 10.13 Forum Selection and Consent to Jurisdiction; Waivers. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, ANY LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE
LENDERS, ANY ISSUER OR THE BORROWER IN CONNECTION HEREWITH OR THEREWITH MAY BE BROUGHT AND
MAINTAINED IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK; PROVIDED THAT, ANY SUIT SEEKING ENFORCEMENT AGAINST ANY
COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE COLLATERAL AGENT’S OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE BORROWER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR NOTICES SPECIFIED IN SECTION
10.2. EACH PERSON PARTY HERETO HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF
ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY PERSON PARTY HERETO
HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS
(WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH PERSON HEREBY IRREVOCABLY WAIVES TO THE
FULLEST EXTENT PERMITTED BY LAW SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THE LOAN
DOCUMENTS. EACH AGENT, EACH LENDER, EACH ISSUER AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY HAVE TO CLAIM OR
RECOVER IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN THIS SECTION ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES.



               SECTION 10.14 Waiver of Jury Trial. EACH AGENT, EACH LENDER, EACH ISSUER AND THE
BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE TO THE FULLEST EXTENT PERMITTED BY
LAW ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, EACH LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF SUCH AGENT, SUCH LENDER, SUCH ISSUER
OR THE BORROWER IN CONNECTION THEREWITH. THE BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED
FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN
DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR EACH AGENT,
EACH LENDER AND EACH ISSUER ENTERING INTO THE LOAN DOCUMENTS.



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               SECTION 10.15 Patriot Act. Each Lender that is subject to Section 326 of the Patriot
Act and/or the Agents and/or the Lead Arrangers (each of the foregoing acting for themselves and
not acting on behalf of any of the Lenders) hereby notify the Borrower that pursuant to the
requirements of the Patriot Act, it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the Borrower and other
information that will allow such Lender, the Agents or the Lead Arrangers, as the case may be, to
identify the Borrower in accordance with the Patriot Act.



               SECTION 10.16 Judgment Currency. The Obligations of each Obligor in respect of any
sum due to any Secured Party under or in respect of any Loan Document shall, notwithstanding any
judgment in a currency (the “Judgment Currency”) other than the currency in which such sum
was originally denominated (the “Original Currency”), be discharged only to the extent that
on the Business Day following receipt by such Secured Party or any sum adjudged to be so due in the
Judgment Currency, such Secured Party, in accordance with normal banking procedures, purchases the
Original Currency with the Judgment Currency. If the amount of Original Currency so purchased is
less than the sum originally due to such Secured Party, the Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Lender, such Secured Party, as
the case may be, against such loss, and if the amount of Original Currency so purchased exceeds the
sum originally due to such Secured Party, as the case may be, such Secured Party, as the case may
be, agrees to remit such excess to the Borrower.



               SECTION 10.17 No Fiduciary Duty. Each Agent, each Co-Syndication Agent, each
Co-Documentation Agent, each Lead Arranger, each Lender and their Affiliates (collectively, solely
for purposes of this paragraph, the “Lenders”), may have economic interests that conflict
with those of the Borrower, its stockholders and/or its Affiliates. The Borrower agrees that
nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or
agency relationship or fiduciary or other implied duty between any Lender, on the one hand, and the
Borrower, its stockholders or its Affiliates, on the other. The Obligors acknowledge and agree
that (i) the transactions contemplated by the Loan Documents (including the exercise of rights and
remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on
the one hand, and the Borrower, on the other, and (ii) in connection therewith and with the process
leading thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in favor of the
Borrower, its stockholders or its Affiliates with respect to the transactions contemplated hereby
(or the exercise of rights or remedies with respect thereto) or the process leading thereto
(irrespective of whether any Lender has advised, is currently advising or will advise the Borrower,
its stockholders or its Affiliates on other matters) or any other obligation to the Borrower except
the obligations expressly set forth in the Loan Documents and (y) each Lender is acting solely as
principal and not as the agent or fiduciary of the Borrower, its management, stockholders,
creditors or any other Person. The Borrower acknowledges and agrees that the Borrower has
consulted its own legal and financial advisors to the extent it deemed appropriate and that it is
responsible for making its own independent judgment with respect to such transactions and the
process leading thereto. The Borrower agrees that it will not claim that any Lender has rendered
advisory services of any nature or respect, or owes a fiduciary or similar duty to the Borrower, in
connection with such transaction or the process leading thereto.




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               SECTION 10.18 Counsel Representation. EACH PARTY HERETO ACKNOWLEDGES AND AGREES
THAT IT HAS BEEN REPRESENTED BY COMPETENT COUNSEL IN THE NEGOTIATION OF THIS AGREEMENT, AND THAT
ANY RULE OR CONSTRUCTION OF LAW ENABLING SUCH PERSON TO ASSERT THAT ANY AMBIGUITIES OR
INCONSISTENCIES IN THE DRAFTING OR PREPARATION OF THE TERMS OF THIS AGREEMENT SHOULD DIMINISH ANY
RIGHTS OR REMEDIES OF ANY OTHER PERSON ARE HEREBY WAIVED.



               SECTION 10.19 Confidentiality. Each Secured Party agrees to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed (a)
to its Affiliates and to its Affiliates’ respective partners, directors, officers, employees,
agents, advisors and representatives (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory authority purporting to
have jurisdiction over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process (provided that except to the extent
prohibited by such subpoena or similar legal process, such Secured Party shall notify the Borrower
of such request or disclosure), (d) to any other party hereto, (e) to the extent reasonably
necessary, in connection with the exercise of any remedies hereunder or under any other Loan
Document or any action or proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder or in connection with the administration of any Loan
Document, (f) to market data collectors or other information services in relation to league table
reporting, (g) subject to an agreement containing provisions substantially the same as those of
this Section, to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to the
Borrower and its obligations, (h) with the written consent of the Borrower or (i) to the extent
such Information (i) becomes publicly available other than as a result of a breach of this
Section (or any other confidentiality obligation owed to the Borrower or any Subsidiary or their
Affiliates) or (ii) becomes available to any Secured Party or any of their respective Affiliates on
a nonconfidential basis from a source other than the Borrower or any Subsidiary and not in
violation of any confidentiality obligation owed to the Borrower or any Subsidiary by any Secured
Party or any Affiliate thereof. For purposes of this Section, “Information” means all
information received from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary
or any of their respective businesses, other than any such information that is available to any
Secured Party on a nonconfidential basis prior to disclosure by the Borrower or any Subsidiary.
Any Person required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information and in accordance with applicable law.



               SECTION 10.20 Resignation of Citi; Appointment of JPMorgan as Successor Swing Line
Lender. (a) Effective as of the Restatement Effective Date, Citi hereby resigns as
Administrative Agent, Collateral Agent and Swing Line Lender under the Original Credit Agreement
and the other Loan Documents (as defined in the Original Credit Agreement). The Required Lenders
and the Borrower hereby confirm that, on and after the



107









 




Restatement Effective Date, Citi shall be discharged from all of its duties and obligations as
administrative agent and collateral agent under the Original Credit Agreement and the other Loan
Documents (as defined in the Original Credit Agreement). The Borrower and the Lenders hereby waive
any requirement for prior notice of such resignation pursuant to Section 9.4 of the
Original Credit Agreement. For the avoidance of doubt, the provisions of Article IX of the
Original Credit Agreement shall continue to inure to the benefit of each Agent (as defined in the
Original Credit Agreement) as to any actions taken or omitted to be taken by it while it was an
Agent under the Loan Documents (as defined in the Original Credit Agreement), and Section 10.3 and
10.4 of the Original Credit Agreement shall continue to inure to the benefit of each such Agent,
including with respect to any actions taken or any costs and expenses incurred by Citi or its legal
counsel on or after the Restatement Effective Date (i) to deliver Collateral to the Administrative
Agent and the Collateral Agent under this Agreement and (ii) with respect to Section 7.1.11 of this
Agreement.




     (b) Effective as of the Restatement Effective Date, JPMorgan shall replace and succeed to the
rights, duties and benefits of Citi as Swing Line Lender. The Borrower consents to such
appointment of JPMorgan as the successor Swing Line Lender under this Agreement and the other Loan
Documents. The Required Lenders and the Borrower hereby confirm that, on and after the Restatement
Effective Date, JPMorgan shall have all rights, protections, duties and powers of the Swing Line
Lender under this Agreement and the other Loan Documents, and Citi shall be discharged from all of
its duties and obligations as swing line lender under the Original Credit Agreement and the other
Loan Documents (as defined in the Original Credit Agreement).



               SECTION 10.21 Effect of Amendment and Restatement. On the Restatement Effective Date,
the Original Credit Agreement shall be amended, restated and superseded in its entirety. The
parties hereto acknowledge and agree that (a) this Agreement and the other Loan Documents, whether
executed and delivered in connection herewith or otherwise, do not constitute a novation, payment
and reborrowing, or termination of the “Obligations” (as defined in the Original Credit Agreement)
under the Original Credit Agreement as in effect prior to the Restatement Effective Date and (b)
such “Obligations” are in all respects continuing (as amended and restated hereby) with only the
terms thereof being modified as provided in this Agreement.



               SECTION 10.22 Consent of Required Lenders. By the execution of this Agreement, each
Lender party to this Agreement consents to this amendment and restatement of the Original Credit
Agreement, as set forth herein, and the amendment and restatement, replacement or other
modification to any other Loan Documents, in each case, as so amended, amended and restated,
replaced or otherwise modified on or after the Restatement Effective Date in the form entered into
by the Obligors and the applicable Agent (it being understood and agreed by each of the parties
hereto that the “Revolving Loan Commitments” under the Original Credit Agreement of each “Revolving
Loan Lender” thereunder that is not also a Revolving Loan Lender under this Agreement shall be
terminated in full on and as of the Restatement Effective Date). Upon the receipt of written
consents from the Required Lenders (as defined in the Original Credit Agreement) pursuant to this
Section 10.22 and notwithstanding any provision to the contrary contained in the Original
Credit Agreement, the Original Credit Agreement (including the schedules and exhibits thereto)
shall be amended and restated in its entirety.



108









 





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



	 	 	 	 	 
	 	HANESBRANDS INC.


 	 
	 	By:  	/s/ Richard D. Moss
 	 
	 	 	Name:  	Richard D. Moss 	 
	 	 	Title:  	Senior Vice President and Treasurer 	 



	 	 	 	 	 
	 	Address: 1000 East Hanes Mill Road Winston-Salem, North Carolina 27105



Facsimile No.: 336-519-2705



Attention: Catherine A. Meeker

 	 
	 	 	 



[Signature Page to Credit Agreement]



 









 





	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,

as Administrative Agent, Collateral Agent and as
a Lender


 	 
	 	By:  	/s/ James A. Knight
 	 
	 	 	Name:  	James A. Knight 	 
	 	 	Title:  	Vice President 	 
	 
	 	J.P. MORGAN SECURITIES INC.,

as a Joint Lead Arranger and Joint Bookrunner


 	 
	 	By:  	/s/ David W. Dwyer
 	 
	 	 	Name:  	David W. Dwyer 	 
	 	 	Title:  	Executive Director 	 
	 



[Signature Page to Credit Agreement]



 









 





	 	 	 	 	 
	 	HSBC SECURITIES (USA) INC.,

as a Joint Lead Arranger and Joint Bookrunner

and a Co-Syndication Agent

 	 
	 	By:  	/s/ Richard Jackson
 	 
	 	 	Name:  	Richard Jackson 	 
	 	 	Title:  	Leveraged and Acquisition Finance 	 
	 
	 	HSBC BANK USA, NATIONAL ASSOCIATION,

as a Lender


 	 
	 	By:  	/s/ Robert Devir
 	 
	 	 	Name:  	Robert Devir 	 
	 	 	Title:  	Managing Director 	 
	 



[Signature Page to Credit Agreement]



 









 





	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

as Co-Syndication Agent and as a Lender


 	 
	 	By:  	/s/ Robert Hamman
 	 
	 	 	Name:  	Robert Hamman 	 
	 	 	Title:  	Vice President 	 
	 
	 	BANC OF AMERICA SECURITIES LLC,

as a Joint Lead Arranger and Joint Bookrunner


 	 
	 	By:  	/s/ E. Mark Hardison
 	 
	 	 	Name:  	Mark Hardison 	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page to Credit Agreement]



 









 





	 	 	 	 	 
	 	BARCLAYS BANK PLC,

as a Joint Lead Arranger and Joint Bookrunner, a

Co-Documentation Agent and as a Lender


 	 
	 	By:  	/s/ Ritam Bhalla
 	 
	 	 	Name:  	Ritam Bhalla 	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page to Credit Agreement]



 









 





	 	 	 	 	 
	 	GOLDMAN SACHS CREDIT PARTNERS L.P.,

as a Co-Documentation Agent and as a Lender


 	 
	 	By:  	/s/ Alexis Maged
 	 
	 	 	Name:  	Alexis Maged 	 
	 	 	Title:  	Authorized Signatory 	 
	 



[Signature Page to Credit Agreement]



 









 





	 	 	 	 	 
	 	United Overseas Bank Limited, New York Agency


 	 
	 	By:  	/s/ K. Jin Koh
 	 
	 	 	Name:  	K. Jin Koh 	 
	 	 	Title:  	General Manager 	 
	 
	 	By:  	                                              /s/ Mario Sheng
 	 
	 	 	Name:  	Mario Sheng 	 
	 	 	Title:  	AVP 	 
	 



[Signature Page to Credit Agreement]



 









 





	 	 	 	 	 
	 	ING Capital LLC


 	 
	 	By:  	                                              /s/ Jaron Stern
 	 
	 	 	Name:  	Jaron Stern 	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page to Credit Agreement]



 









 





	 	 	 	 	 
	 	PNC BANK, National Association, as a Lender,


 	 
	 	By:  	/s/ John Berry
 	 
	 	 	Name:  	John Berry 	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page to Credit Agreement]



 









 





	 	 	 	 	 
	 	NOTHERN TRUST COMPANY


 	 
	 	By:  	/s/ John C. Canty
 	 
	 	 	Name:  	John C. Canty 	 
	 	 	Title:  	Senior Vice President 	 
	 



[Signature Page to Credit Agreement]



 









 





	 	 	 	 	 
	 	ISRAEL DISCOUNT BANK OF NEW YORK


 	 
	 	By:  	/s/ David Acosta
 	 
	 	 	Name:  	David Acosta 	 
	 	 	Title:  	Senior Vice President 	 
	 	 	 
	 	By:  	                                              /s/ Mila Rashkovan
 	 
	 	 	Name:  	Mila Rashkovan 	 
	 	 	Title:  	Assistant Vice President 	 
	 



[Signature Page to Credit Agreement]



 









 




	 	 	 	 	 
	 	ROYAL BANK OF CANADA, as Lender


 	 
	 	By:  	/s/ G. David Cole
 	 
	 	 	Name:  	G. David Cole 	 
	 	 	Title:  	Authorized Signatory 	 
	 



[Signature Page to Credit Agreement]



 









 





	 	 	 	 	 
	 	Raymond James Bank, FSB


 	 
	 	By:  	/s/ Kathy Bennett
 	 
	 	 	Name:  	Kathy Bennett 	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page to Credit Agreement]



 









 





	 	 	 	 	 
	 	THE BANK OF NOVA SCOTIA


 	 
	 	By:  	/s/ David Mahmood
 	 
	 	 	Name:  	David Mahmood 	 
	 	 	Title:  	Managing Director 	 
	 



[Signature Page to Credit Agreement]



 









 





	 	 	 	 	 
	 	BRANCH BANKING AND TRUST COMPANY


 	 
	 	By:  	/s/ Michael P. Gwyn
 	 
	 	 	Name:  	Michael P. Gwyn 	 
	 	 	Title:  	Senior Vice President 	 
	 



[Signature Page to Credit Agreement]



 









 





	 	 	 	 	 
	 	FIFTH THIRD BANK, as a Lender


 	 
	 	By:  	/s/ Mary Ramsay
 	 
	 	 	Name:  	Mary Ramsay 	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page to Credit Agreement]



 









 





	 	 	 	 	 
	 	SIEMENS FINANCIAL SERVICES, INC.


as a Lender


 	 
	 	By:  	/s/ Douglas Maher
 	 
	 	 	Name:  	Douglas Maher 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	                                              /s/ Carol Walters
 	 
	 	 	Name:  	Carol Walters 	 
	 	 	Title:  	Vice President-Documentation 	 
	 



[Signature Page to Credit Agreement]



 









 





	 	 	 	 	 
	 	Capital One Leverage Financial Group


 	 
	 	By:  	/s/ Paul Dellova
 	 
	 	 	Name:  	Paul Dellova 	 
	 	 	Title:  	Senior Vice President 	 
	 



[Signature Page to Credit Agreement]



 









 






     Pursuant to Section 10.20 of the Agreement, the undersigned hereby resign as Administrative
Agent, Collateral Agent and Swing Line Lender.



	 	 	 	 	 
	 	CITICORP USA, INC.,

as resigning Administrative Agent and resigning

Swing Line Lender


 	 
	 	By:  	/s/ Patricia Guerra
 	 
	 	 	Name:  	Patricia Guerra 	 
	 	 	Title:  	Vice President 	 
	 
	 	CITIBANK, N.A.,

as resigning Collateral Agent


 	 
	 	By:  	/s/ Patricia Gallagher
 	 
	 	 	Name:  	Patricia Gallagher 	 
	 	 	Title:  	Vice President 	 
	 




 











 





DISCLOSURE SCHEDULES




TO 



AMENDED AND RESTATED CREDIT AGREEMENT



dated as of December 10, 2009,




among



HANESBRANDS INC.,

as the Borrower,



VARIOUS FINANCIAL INSTITUTIONS AND

OTHER PERSONS FROM TIME TO TIME

PARTY HERETO,

as the Lenders,



BARCLAYS BANK PLC and GOLDMAN SACHS CREDIT PARTNERS L.P.

as the Co-Documentation Agents,



BANK OF AMERICA, N.A. and HSBC SECURITIES (USA) INC.

as the Co-Syndication Agents,



and



JPMORGAN CHASE BANK, N.A.,

as the Administrative Agent and the Collateral Agent



 





J.P. MORGAN SECURITIES INC.,



BANC OF AMERICA SECURITIES LLC,



HSBC SECURITIES (USA) INC.,



and



BARCLAYS CAPITAL,



as Joint Lead Arrangers and Joint Bookrunners



 









 




SCHEDULE I




	 	 	 
	ITEM 6.8

	 	Existing Subsidiaries
	ITEM 6.9(a)

	 	Mortgaged Property
	ITEM 6.9(b)

	 	Owned Real Property
	ITEM 7.2.2(c)

	 	Ongoing Indebtedness
	ITEM 7.2.3(c)

	 	Ongoing Liens
	ITEM 7.2.5(a)

	 	Ongoing Investments
	ITEM 7.2.11(m)

	 	Permitted Dispositions
	 
	 	 
	SCHEDULE II

	 	Percentages, Libor Office; Domestic Office
	 
	 	 
	SCHEDULE III

	 	Existing Letters of Credit






 









 






ITEM 6.8. Existing Subsidiaries




Domestic Subsidiaries




BA International, L.L.C.

Caribesock, Inc.

Caribetex, Inc.

CASA International, LLC

Ceibena Del, Inc.

Hanes Menswear, LLC

Hanes Puerto Rico, Inc.

Hanesbrands Direct, LLC

Hanesbrands Distribution, Inc.

HBI Branded Apparel Limited, Inc.

HBI Branded Apparel Enterprises, LLC

HbI International, LLC

HBI SOURCING, LLC

Inner Self LLC

Jasper-Costa Rica, L.L.C.

Playtex Dorado, LLC

Playtex Industries, Inc.

Seamless Textiles, LLC

UPCR, Inc.

UPEL, Inc.




Foreign Subsidiaries




Bali Dominicana, Inc.

Bali Dominicana Textiles, S.A.

Bal-Mex S. de R.L. de C.V.

Bordados Industriales, S. A. de C.V.

Canadelle Limited Partnership

Canadelle Holding Corporation Limited

Cartex Manufacturera S. de R. L.

CASA International, LLC Holdings S.C.S.

Caysock, Inc.

Caytex, Inc.

Caywear, Inc.

Ceiba Industrial, S. De R.L.

Champion Products S. de R.L. de C.V.

Choloma, Inc.

Confecciones Atlantida S. de R.L.

Confecciones de Nueva Rosita S. de R.L. de C.V.

Confecciones El Pedregal Inc.

Confecciones El Pedregal S.A. de C.V.

Confecciones del Valle, S. de R.L.

Confecciones Jiboa S.A. de C.V.

Confecciones La Caleta, Inc.

Confecciones La Herradura S.A. de C.V.

Confecciones La Libertad, Ltda de C.V.

DFK International Limited

Dos Rios Enterprises, Inc.




 









 





Hanes Brands Incorporated de Costa Rica, S.A.

Hanes Caribe, Inc.

Hanes Choloma, S. de R. L.

Hanes Colombia, S.A.

Hanes de Centroamerica S.A.

Hanes de El Salvador, S.A. de C.V.

Hanes de Honduras S. de R.L. de C.V. *

Hanes Dominican, Inc.

Hanes Menswear Puerto Rico, Inc.

Hanes Panama Inc.

Hanesbrands Apparel India Private Limited

Hanesbrands Argentina S.A.

Hanesbrands Australia Pty Limited

Hanesbrands Brasil Textil Ltda.

Hanesbrands Canada NS ULC

Hanesbrands Caribbean Logistics, Inc.

Hanesbrands Dominicana, Inc.

Hanesbrands Dos Rios Textiles, Inc.

Hanesbrands El Salvador, Ltda. de C.V.

Hanesbrands Europe GmbH

Hanesbrands Holdings

Hanesbrands International (Shanghai) Co. Ltd.

Hanesbrands Japan Inc.

Hanesbrands (Nanjing) Textile Co., Ltd.

Hanesbrands Philippines Inc.

Hanesbrands Sourcing (India) Private Limited

Hanesbrands (HK) Limited

Hanesbrands ROH Asia Ltd.

Hanesbrands UK Limited

HBI Alpha Holdings, Inc.

Hanesbrands (Vietnam) Company Limited

HBI Beta Holdings, Inc.

HBI Compania de Servicios, S.A. de C.V.

HbI International Holdings S.à r.l.

HBI RH Mexico, S. De R.L. de C.V.

HBI Manufacturing (Thailand) Ltd.

HBI Risk Management Ltd.

HBI Servicios Administrativos de Costa Rica, S.A.

HBI Socks de Honduras, S. de R.L. de C.V.

HBI Sourcing Asia Limited

Indumentaria Andina S.A.

Industrias de Confecciones Poliandy, S.A. *

Industrias El Porvenir, S. de R.L. *

Industria Textilera del Este ITE, S.de R.L.

Industrias Internacionales de San Pedro S. de R.L. de C.V.

Inversiones Bonaventure S.A. de C.V.

J.E. Morgan de Honduras, S.A.

Jasper Honduras, S.A.

Jasper-Salvador, S.A. de C.V. *

Jogbra Honduras, S.A.

Madero Internacional S. de R.L. de C.V.

Manufacturera Ceibena S. de R.L.

Manufacturera Comalapa S.A. de C.V.




 









 





Manufacturera de Cartago, S.R.L.

Manufacturera San Pedro Sula, S. de R.L.

Monclova Internacional S. de R.L. de C.V.

Playtex Puerto Rico, Inc.

PT. HBI Sourcing Indonesia

PTX (D.R.), Inc.

Rinplay S. de R.L. de C.V.

Seamless Puerto Rico, Inc.

Servicios de Soporte Intimate Apparel, S. de R.L.

Socks Dominicana S.A.

Texlee El Salvador, Ltda. de C.V.

Textiles S&R, S.A. *

The Harwood Honduras Companies, S. de R.L.

UPEL Chinandega y Compania Limitada






 




			
	*	 	These companies are in the process of liquidation.






 












 





ITEM 6.9(a) Mortgaged Property




	 	 	 
	Facility Name	 	Address
	Clarksville

	 	Cline & Clark Rd

Clarksville, AR
	 
	Weeks

	 	401 Hanes Mill Rd

Winston Salem, NC
	 
	Eden

	 	136 Gant Road

Eden, North Carolina
	 
	 

	 	328 Gant Road

Eden, North Carolina
	 
	Oak Summit

	 	1000 Hanes Mill Road

Winston Salem, NC
	 
	Kernersville

	 	638 North Main Street

Kernersville, NC
	 
	Sanford

	 	2652 Dalrymple Street

Sanford, NC
	 
	Advance

	 	2016 Cornatzer Road

Advance NC
	 
	Martinsville VSC

	 	380 Beaver Creek Road

Martinsville, VA






 









 






ITEM 6.9(b) Owned Real Property




	 	 	 	 	 
	Facility Name	 	Address	 	Estimated Value
	Clarksville
	 	Cline & Clark Rd	 	 
	 
	 	Clarksville, AR	 	$2.0 million
	 
	 	 	 	 
	Weeks
	 	401 Hanes Mill Rd	 	 
	 
	 	Winston Salem, NC	 	$4.5 million
	 
	 	 	 	 
	Oak Summit
	 	1000 Hanes Mill Road	 	 
	 
	 	Winston Salem, NC	 	$30 million
	 
	 	 	 	 
	Kernersville
	 	638 North Main Street	 	 
	 
	 	Kernersville, NC	 	$4.0 million
	 
	 	 	 	 
	Martinsville VSC
	 	380 Beaver Creek Road	 	 
	 
	 	Martinsville, VA	 	$7.5 million
	 
	 	 	 	 
	Commerce
	 	219 Commerce Blvd	 	 
	 
	 	Kings Mountain, NC	 	$8.9 million
	 
	 	 	 	 
	Canterbury
	 	705 Canterbury Rd	 	 
	 
	 	Gastonia, NC	 	$7.1 million
	 
	 	 	 	 
	Northridge
	 	521 Northridge Park Dr.	 	 
	 
	 	Rural Hall, NC	 	$23.5 million
	 
	 	 	 	 






 









 




ITEM 7.2.2(c) Ongoing Indebtedness




	 	 	 	 	 	 	 
	Lender	 	Borrower	 	Total
	HSBC Securities (USA) Inc. — AR Securitization
	 	Hanesbrands Inc.	 	$	250,000,000.00	 
	HSBC
	 	HBI Manufacturing (Thailand) Ltd.	 	$	4,281,000.00	 
	Citibank
	 	Hanesbrands International (Shanghai) Co. Ltd	 	$	7,647,000.00	 
	Citibank
	 	Hanesbrands El Salvador Ltda de C.V.	 	$	20,960,000.00	 
	Banamex/Citibank
	 	Rinplay S. de R.L. de C.V.	 	$	11,868,000.00	 
	Citibank
	 	Hanesbrands Japan Inc.	 	$	1,083,000.00	 
	Kronos Global Payroll Time Clocks
	 	Hanesbrands Inc.	 	$	409,696.89	 
	Hitachi Hard Disk Storage Upgrade-Capital Lease
	 	Hanesbrands Inc.	 	$	64,438.17	 
	Hitachi Hard Disk Storage
	 	Hanesbrands Inc.	 	$	302,145.04	 
	IBM
	 	Hanesbrands Inc.	 	$	43,482.09	 
	AIG
	 	Hanesbrands El Salvador Ltda de C.V.	 	$	418,169.00	 
	AIG
	 	Hanesbrands El Salvador Ltda de C.V.	 	$	2,244,601.25	 
	AIG
	 	Hanesbrands El Salvador Ltda de C.V.	 	$	1,282,890.72	 





Intercompany Debt




	 	 	 	 	 	 	 
	Lender	 	Borrower	 	Total
	Canadelle Limited Partnership
	 	Hanesbrands Inc	 	$	47,853,229.60	 
	Hanesbrands International, LLC
	 	Hanesbrands International (Shanghai) Co. Ltd.	 	$	2,500,000.00	 







 










 





ITEM 7.2.3(c) Ongoing Liens





	1.	 	Lien on the shares of H.N. Fibers, Ltd. (an Israeli company owned by HbI International, LLC)
pursuant to the H.N. Fibers, Ltd. Memorandum of Articles.






	2.	 	Liens on Hanesbrands Inc.:





	 	 	 	 	 	 	 	 	 	 	 
	 	 		 	FILE	 	 	 	 	 	 
		 	FILING	 	NUMBER &	 	 	 	 	 	COLLATERAL
	JURISDICTION	 	TYPE	 	DATE	 	DEBTOR	 	SECURED PARTY	 	DESCRIPTION
	 	 	 	 	 	 	 	 	 	 	 
	Department of
Assessments &
Taxation, Maryland
searched thru
11/9/09

	 	UCC
	 	181283603

10/4/06
	 	Hanesbrands Inc.

1000 E. Hanes Mill Road

Winston-Salem, NC 27105
	 	Raymond Leasing
 Corporation

20 S. Canal Street

Greene, NY 13778
	 	Leased equipment.
	Department of
Assessments &
Taxation, Maryland
searched thru
11/9/09

	 	UCC
	 	181283764

10/4/06
	 	Hanesbrands Inc.

1000 E. Hanes Mill Road

Winston-Salem, NC 27105
	 	Raymond Leasing
 Corporation

20 S. Canal Street

Greene, NY 13778
	 	Leased equipment.
	Department of
Assessments &
Taxation, Maryland
searched thru
11/9/09

	 	UCC
	 	181288980

11/27/06
	 	Hanesbrands Inc.

1000 East Hanes Mill Road

Winston-Salem, NC 27105
	 	Tubular Textiles Machinery, Inc.

P.O. Box 2097 

Lexington, NC 27293
	 	Leased equipment
pursuant to lease
agreement C-1497,
Secured Party
leases to Debtor.
	Department of
Assessments &
Taxation, Maryland
searched thru
11/9/09

	 	UCC
	 	181326115

11/27/07
	 	Hanesbrands Inc.

1000 East Hanes Mill Road

Winston-Salem, NC 27105
	 	JPMorgan Chase Bank,
N.A., as Agent

Chase Tower, 10 South 
Dearborn Street

Chicago, IL 60603
	 	Blanket Lien.
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Additional Secured	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Party:	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	HBI Receivables LLC

1000 East Hanes Mill Road

Winston-Salem, NC 27105	 	 






 









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 		 	FILE	 	 	 	 	 	
	 	 	FILING	 	NUMBER &	 	 	 	 	 	COLLATERAL
	JURISDICTION	 	TYPE	 	DATE	 	DEBTOR	 	SECURED PARTY	 	DESCRIPTION
	 	 	 	 	 	 	 	 	 	 	 
	Department of
Assessments &
Taxation, Maryland
searched thru
11/9/09

	 	ASSIGN
	 	181326115

4/14/09
	 	Hanesbrands Inc.

1000 East Hanes Mill Road

Winston-Salem, NC 27105
	 	HSBC Securities (USA) Inc., as Agent

425 Fifth Avenue

New York, NY 10018
	 	Assignment of
financing statement
no. 181326115 to
HSBC Securities
(USA) Inc., as
Agent.
	Department of
Assessments &
Taxation, Maryland
searched thru
11/9/09

	 	UCC
	 	181332178

1/28/08
	 	Hanesbrands Inc.

1000 E. Hanes Mill Road

Winston-Salem, NC 27105
	 	IKON Financial SVCS

1738 Bass RD 

Macon, GA 31210-1043
	 	Leased equipment
pursuant to
Schedule No.
1016389A4 of the
Master Lease No.
1016389.
	Department of
Assessments &
Taxation, Maryland
searched thru
11/9/09

	 	UCC
	 	181332253

1/28/08
	 	Hanesbrands Inc.

1000 E. Hanes Mill Road

Winston-Salem, NC 27105
	 	IKON Financial SVCS

1738 Bass RD

Macon, GA 31210-1043
	 	Leased equipment
pursuant to
Schedule No.
1016389A6 of the
Master Lease No.
1016389.
	Department of
Assessments &
Taxation, Maryland
searched thru
11/9/09

	 	UCC
	 	181332261

1/28/08
	 	Hanesbrands Inc.

1000 E. Hanes Mill Road

Winston-Salem, NC 27105
	 	IKON Financial SVCS

1738 Bass RD 

Macon, GA 31210-1043
	 	Leased equipment
pursuant to
Schedule No.
1016389A7 of the
Master Lease No.
1016389.
	Department of
Assessments &
Taxation, Maryland
searched thru
11/9/09

	 	UCC
	 	181332278

1/28/08
	 	Hanesbrands Inc.

1000 E. Hanes Mill Road

Winston-Salem, NC 27105
	 	IKON Financial SVCS 

1738 Bass RD

Macon, GA 31210-1043
	 	Leased equipment
pursuant to
Schedule No.
1016389A5 of the
Master Lease No.
1016389.
	Department of
Assessments &
Taxation, Maryland
searched thru
11/9/09

	 	UCC
	 	181335255

3/4/08
	 	Hanesbrands Inc. 

1000 W. Hanes Mill Road

Winston-Salem, NC 27105
	 	IKON Financial SVCS

1738 Bass RD

Macon, GA 31210-1043
	 	Leased equipment.
	Department of
Assessments &
Taxation, Maryland
searched thru
11/9/09

	 	AMEND
	 	181335255

4/28/08
	 	Hanesbrands Inc.

1000 W. Hanes Mill Road

Winston-Salem, NC 27105
	 	IKON Financial SVCS

1738 Bass RD

Macon, GA 31210-1043
	 	Amendment to financing
statement no. 181335255
restating collateral
description.
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	Leased equipment
pursuant to
Schedule No.
1016389A9 of the
Master
Lease No.
1016389.






 









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 		 	FILE	 	 	 	 	 	 
	 	 	FILING	 	NUMBER &	 	 	 	 	 	COLLATERAL
	JURISDICTION	 	TYPE	 	DATE 	 	DEBTOR	 	SECURED PARTY	 	DESCRIPTION
	 	 	 	 	 	 	 	 	 	 	 
	Department of
Assessments &
Taxation, Maryland
searched thru
11/9/09

	 	UCC
	 	181338445

4/3/08
	 	Hanesbrands Inc.

1000 W. Hanes Mill Road

Winston-Salem, NC 27105
	 	IKON Financial SVCS

1738 Bass RD

Macon, GA 31210-1043
	 	Leased equipment
pursuant to
Schedule No.
1016389A14 of the
Master Lease No.
1016389.
	Department of
Assessments &
Taxation, Maryland
searched thru
11/9/09

	 	UCC
	 	181338692

4/8/08
	 	Hanesbrands Inc.

1000 W. Hanes Mill Road

Winston-Salem, NC 27105
	 	IKON Financial SVCS

1738 Bass RD

Macon, GA 31210-1043
	 	Leased equipment
pursuant to
Schedule No.
1016389A16 of the
Master Lease No.
1016389.
	Department of
Assessments &
Taxation, Maryland
searched thru
11/9/09

	 	UCC
	 	181339808

4/22/08
	 	Hanesbrands Inc.

450 W. Hanes Mill Road

Winston-Salem, NC 27105
	 	IKON Financial SVCS

1738 Bass RD

Macon, GA 31210-1043
	 	Leased equipment
pursuant to
Schedule No.
1016389A17 of the
Master Lease No.
1016389.
	Department of
Assessments &
Taxation, Maryland
searched thru
11/9/09

	 	UCC
	 	181340500

4/28/08
	 	Hanesbrands Inc.

450 W. Hanes Mill Road

Winston-Salem, NC 27105
	 	IKON Financial SVCS

1738 Bass RD

Macon, GA 31210-1043
	 	Leased equipment
pursuant to
Schedule No.
1016389A18 of the
Master Lease No.
1016389.
	Department of
Assessments &
Taxation, Maryland
searched thru
11/9/09

	 	UCC
	 	181344692

6/9/08
	 	Hanesbrands Inc.

450 W. Hanes Mill Road

Winston-Salem, NC 27105
	 	IKON Financial SVCS

1738 Bass RD

Macon, GA 31210-1043
	 	Leased equipment
pursuant to
Schedule No.
1016389R12 of the
Master Lease No.
1016389.
	Department of
Assessments &
Taxation, Maryland
searched thru
11/9/09

	 	UCC
	 	181345104

6/9/08
	 	Hanesbrands Inc.

1000 W. Hanes Mill Road

Winston-Salem, NC 27105
	 	Brother International
Corporation

100 Somerset Corp.
 Blvd., 8th Fl

Bridgewater, NJ 08807
	 	Consigned equipment.
	Department of
Assessments &
Taxation, Maryland
searched thru
11/9/09

	 	UCC
	 	181350385

8/13/08
	 	Hanesbrands Inc.

1000 E. Hanes Mill Road

Winston-Salem, NC 27105
	 	NMHG Financial
 Services, Inc.

44 Old Ridgebury Road

Danbury, CT 06810
	 	Leased equipment.






 









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 		 	FILE	 	 	 	 	 	
		 	FILING	 	NUMBER &	 	 	 	 	 	COLLATERAL
	JURISDICTION	 	TYPE	 	DATE	 	DEBTOR	 	SECURED PARTY	 	DESCRIPTION
	 	 	 	 	 	 	 	 	 	 	 
	Department of
Assessments &
Taxation, Maryland
searched thru
11/9/09

	 	UCC
	 	181351438

8/25/08
	 	Hanesbrands Inc.

1000 East Hanes Mill Road

Winston-Salem, NC 27105
	 	Tubular Textiles 
Machinery, Inc.

113 Woodside Drive

Lexington, NC 27293
	 	Leased equipment
pursuant to lease
agreement C-1518,
Secured Party
leases to Debtor.
	Department of
Assessments &
Taxation, Maryland
searched thru
11/9/09

	 	UCC
	 	181372068

6/5/09
	 	Hanesbrands Inc.

P.O. Box 3019

Winston-Salem, NC 27102
	 	Hitachi Data Systems
 Credit Corp.

750 Central Expressway 

Santa Clara, CA 95050
	 	All right, title
and interest in, to
and under the
Master Lease
Agreement No.
07LMR-017, Schedule
A-3, between the
Secured Party, as
Lessor and the
Debtor, as Lessee.







 












 





ITEM 7.2.5(a) Ongoing Investments





	1.	 	Subsidiaries as listed in ITEM 6.8 under the caption “Domestic Subsidiaries” (each of which
is a wholly-owned “Subsidiary” as defined in the Credit Agreement) and under the caption
“Foreign Subsidiaries,” along with the following companies in the respective percentage listed
below:






	 	(a)	 	H.N. Fibers, Ltd. (49% interest)






	 	(b)	 	Playtex Marketing Corporation (50% interest)






	2.	 	Indebtedness as listed in ITEM 7.2.2(c) under the caption “Intercompany Debt”




 









 











ITEM 7.2.11(m) Permitted Dispositions




	 	 	 
	Location of property	 	Description
	Eden, North Carolina

	 	Approximately 913,600 square foot building
	Winston-Salem, North Carolina

	 	Approximately 840,000 square foot building
	Mountain City, Tennessee

	 	Approximately 627,800 square foot building
	Galax, Virginia

	 	Approximately 424,500 square foot building
	Sanford, North Carolina

	 	Approximately 280,800 square foot building
	Barnwell, South Carolina

	 	Approximately 240,500 square foot building
	Advance, North Carolina

	 	Approximately 209,900 square foot building
	Tamaqua, Pennsylvania

	 	Approximately 132,100 square foot building
	Clemmons, North Carolina

	 	Approximately 100,000 square foot building
	Rural
Hall, North Carolina

	 	Approximately 930,500 square foot building
	Kings
Mountain, North Carolina

	 	Approximately 475,700 square foot building
	Gastonia,
North Carolina

	 	Approximately 380,300 square foot building
	Oak
Summit Business Park, Winston-Salem North Carolina

	 	Land-Approximately 8.64 acres






 









 





SCHEDULE II




PERCENTAGES;

NOTICE ADDRESS




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	REVOLVING LOAN	 	NEW TERM LOAN
	NAME OF LENDER	 	NOTICE ADDRESS	 	COMMITMENT	 	COMMITMENT
	 
	 	 	 	 	 	 	 	 	 	 
	JPMorgan Chase
Bank, N.A.

	 	JPMorgan Loan Services
	 	 	11.42	%	 	 	100	%
	 

	 	21 South Clark, 7th Fl

Chicago, Illinois 60603

Attention: Joyce King

Tel: (312) 385-7025

Fax: 1-888-292-9533 (f)

Email: jpm.agency.servicing.4@jpmchase.com	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Barclays Bank PLC

	 	Barclays Capital
	 	 	8.75	%	 	 	 	 
	 

	 	745 7th Avenue, 26th Floor

New York, NY 10019

Attention: Ritam Bhaila

Tel: (212) 526-1819

Fax: (212) 526-5115

Email: ritam.bhaila@barcap.com	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	RAYMOND JAMES BANK, FSB

	 	Raymond James Bank, FSB
	 	 	2.50	%	 	 	 	 
	 

	 	P.O. Box 11628

St. Petersburg, FL 33733-1628

Parcel delivery: 710 Carillon Parkway

St. Petersburg FL 33716

Attention: Kathy Bennett

Tel: (727)-567-4314

Fax: 1-866-205-1396

Email: RJBank-LoanOpsCorp@RaymondJames.com	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Capital One
Leverage Finance Corp.

	 	Capital One Leverage Finance Corp.
	 	 	2.50	%	 	 	 	 
	 

	 	265 Broadhollow Road

Melville, New York 11747

Attention: Jose Gutierrez

Tel: (631) 531-2781

Fax: (631) 531-2766	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Bank of America, N.A.

	 	Bank of America
	 	 	11.42	%	 	 	 	 
	 

	 	135 S. LaSalle Street, Suite IL4-I35-07-13

Chicago, IL 60603

Attention: Robert Hamman

Tel: (312) 904-7621

Fax: (312) 453-3547

Email: robert.hamman@baml.com	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	The Bank of Nova
Scotia

	 	The Bank of Nova Scotia
	 	 	3.75	%	 	 	 	 
	 

	 	One Liberty Plaza, 26th Floor

New York, NY 10006

Attention: Olivia Braun

Tel: (212) 225-5063

Fax: (212-225-5205

Email: olivia_braun@scotiacapital.com	 	 	 	 	 	 	 	 






 









 





2



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	REVOLVING LOAN	 	NEW TERM LOAN
	NAME OF LENDER	 	NOTICE ADDRESS	 	COMMITMENT	 	COMMITMENT
	 

	ING CAPITAL LLC

	 	ING CAPITAL LLC
	 	 	2.00	%	 	 	 	 
	 

	 	333 South Grand Avenue, Suite 4120

Los Angeles, CA 90071

Attention: John Mattox

Tel: (213) 346-3933

Fax: (213) 346-3991

Email: john.mattox@americasing.com	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	HSBC Bank USA, N.A.

	 	HSBC Bank USA, N.A.
	 	 	11.42	%	 	 	 	 
	 

	 	452 Fifth Avenue, 5th Floor

New York, NY 10018	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Goldman Sachs Credit Partners L.P.

	 	Goldman Sachs Credit Partners L.P.
	 	 	8.75	%	 	 	 	 
	 

	 	30 Hudson Street, 36th Floor

Jersey City, NJ 07302

Attention: Barbara Fabbri

Tel: (212) 902-5563

Fax: (212-357-4597	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Israel Discount
Bank of New York

	 	Israel Discount Bank of New York
	 	 	3.75	%	 	 	 	 
	 

	 	511 Fifth Avenue

New York, New York 10017	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Royal Bank of Canada

	 	Royal Bank of Canada
	 	 	7.50	%	 	 	 	 
	 

	 	3 World Financial Center, 12th Floor

New York, NY 10281-8098

Attention: David Cole

Tel: (212) 428-6404

Fax: (212) 428-6460

Email: david.cole@rbccm.com	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	The Northern Trust Company

	 	Northern Trust Company
	 	 	5.00	%	 	 	 	 
	 

	 	50 South La Salle Street — M27

Chicago, IL 60603

Attention: John C. Canty

Tel: (312) 444-7729

Fax: (312) 444-7028

Email: jc92@ntrs.com	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Branch Banking and
Trust Company

	 	Branch Banking and Trust Company
	 	 	7.50	%	 	 	 	 
	 

	 	110 S. Stratford Road

Winston-Salem, NC 27104

Attention: Michael P. Gwyn

Tel: (336) 733-1119

Fax: (336) 733-1134

Email: mgwyn@BBandT.com	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	United Overseas Bank Limited,

	 	United Overseas Bank Ltd., New York Agency
	 	 	1.87	%	 	 	 	 
	New York Agency

	 	592 Fifth Avenue, 10th Floor

New York, NY 10036

Attention: Daniel Chang

Tel: (212) 382-0088 Ext 37

Fax: (212) 382-1881

Email: Daniel.ChangKC@uobgroup.com	 	 	 	 	 	 	 	 






 









 





3



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	REVOLVING LOAN	 	NEW TERM LOAN
	NAME OF LENDER	 	NOTICE ADDRESS	 	COMMITMENT	 	COMMITMENT
	 
	 	 	 	 	 	 	 	 	 	 
	Siemens Financial Services, Inc.

	 	Siemens Financial Services, Inc.
	 	 	1.87	%	 	 	 	 
	 

	 	170 Wood Avenue South

Iselin, NJ 08830

Attention: Charmaine Robinson

Tel: (732) 590-6567

Fax: (919) 374-9105

Email: SFSPOPS.SFS@SIEMENS.COM	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Fifth Third Bank,

	 	Fifth Third Bank
	 	 	2.50	%	 	 	 	 
	an Ohio banking corporation

	 	222 S. Riverside Plaza 30th Floor

Chicago, IL 60606

Attention: Mitchell Early

Tel: (312) 704-5535

Fax: (312) 704-7365

Email: Mitchell.early@53.com	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	PNC Bank, National
Association

	 	PNC Bank, National Association
	 	 	7.5	%	 	 	 	 
	 

	 	249 Fifth Avenue

Pittsburgh, PA 15222

Attention: Jessica Fabrizi

Tel: (412) 768-7054

Fax: (412) 762-6484

Email: Jessica.fabrizi@pnc.com	 	 	 	 	 	 	 	 






NOTICE ADDRESS FOR ADMINISTRATIVE AGENT:




JPMorgan Loan Services

10 South Dearborn

Chicago, IL, 60603

Attention: Joyce King

Fax: 312-385-7096

Phone: 312-385-7025

E-mail: jpm.agency.servicing.4@jpmchase.com




NOTICE ADDRESS FOR THE BORROWER:




Hanesbrands Inc.

1000 East Hanes Mill Rd

Winston-Salem, NC 27105

Attn: General Counsel





 












 






SCHEDULE III




Existing Letters of Credit




See attached.







 









 








Schedule III — Existing Letters of Credit


Trade LC’s




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicant Name 	 	DC number	 	Issue date	 	 	 	DC Outstanding amt	 	 	Expiry date	 
	CANADELLE LP
	 	HKH  692353	 	20090826	 	USD	 	 	302.59	 	 	 	20091203	 
	CANADELLE LP
	 	HKH  692357	 	20091007	 	USD	 	 	43,340.14	 	 	 	20091224	 
	CANADELLE LP
	 	HKH  692356	 	20091007	 	USD	 	 	13,141.98	 	 	 	20091224	 
	CANADELLE LP
	 	HKH  692350	 	20090724	 	USD	 	 	138,920.22	 	 	 	20091231	 
	CANADELLE LP
	 	HKH  692355	 	20091007	 	USD	 	 	25,873.86	 	 	 	20100107	 
	CANADELLE LP
	 	HKH  692354	 	20090915	 	USD	 	 	191,425.50	 	 	 	20100113	 
	CANADELLE LP
	 	HKH  692358	 	20091016	 	USD	 	 	23,648.08	 	 	 	20100114	 
	CANADELLE LP
	 	0	 	IBCSLC890198HKH	 	USD	 	 	50,677.80	 	 	 	20091124	 
	CANADELLE LP
	 	DC HKH  692353	 	 BR SLC890652HKH	 	USD	 	 	10,086.18	 	 	 	20091202	 
	HANESBRANDS EUROPE GMBH
	 	HKH  705519	 	20090622	 	USD	 	 	152,839.91	 	 	 	20091215	 
	HANESBRANDS EUROPE GMBH
	 	HKH  705529	 	20090710	 	USD	 	 	108,240.03	 	 	 	20091215	 
	HANESBRANDS EUROPE GMBH
	 	HKH  705534	 	20090813	 	USD	 	 	114,941.06	 	 	 	20091215	 
	HANESBRANDS EUROPE GMBH
	 	HKH  705547	 	20090918	 	USD	 	 	34,284.41	 	 	 	20091215	 
	HANESBRANDS EUROPE GMBH
	 	HKH  705541	 	20090918	 	USD	 	 	450,957.54	 	 	 	20091215	 
	HANESBRANDS EUROPE GMBH
	 	HKH  705542	 	20090918	 	USD	 	 	111,818.86	 	 	 	20091215	 
	HANESBRANDS EUROPE GMBH
	 	HKH  705546	 	20090918	 	USD	 	 	37,266.39	 	 	 	20091215	 
	HANESBRANDS EUROPE GMBH
	 	HKH  705544	 	20090918	 	USD	 	 	81,343.65	 	 	 	20091215	 
	HANESBRANDS EUROPE GMBH
	 	HKH  705545	 	20090918	 	USD	 	 	37,454.24	 	 	 	20091215	 
	HANESBRANDS EUROPE GMBH
	 	HKH  705548	 	20090918	 	USD	 	 	9,776.03	 	 	 	20091222	 
	HANESBRANDS EUROPE GMBH
	 	HKH  705543	 	20090918	 	USD	 	 	1,617,225.82	 	 	 	20100115	 
	HANESBRANDS EUROPE GMBH
	 	HKH  705553	 	20091023	 	USD	 	 	534,266.74	 	 	 	20100115	 
	HANESBRANDS EUROPE GMBH
	 	HKH  705549	 	20091009	 	USD	 	 	33,957.00	 	 	 	20100115	 
	HANESBRANDS EUROPE GMBH
	 	HKH  705552	 	20091015	 	USD	 	 	166,562.18	 	 	 	20100115	 
	HANESBRANDS EUROPE GMBH
	 	HKH  705551	 	20091015	 	USD	 	 	2,584,982.30	 	 	 	20100115	 
	HANESBRANDS EUROPE GMBH
	 	HKH  705540	 	20090831	 	USD	 	 	280,051.08	 	 	 	20100205	 
	HANESBRANDS EUROPE GMBH
	 	HKH  705550	 	20091016	 	USD	 	 	66,465.32	 	 	 	20100215	 
	HANESBRANDS EUROPE GMBH
	 	DC HKH  705529	 	BR HBI890322HKH	 	USD	 	 	88,722.09	 	 	 	20091126	 
	HANESBRANDS EUROPE GMBH
	 	DC HKH  705540 	 	BR HBI890506HKH 	 	USD	 	 	69,167.24	 	 	 	20091201	 
	HANESBRANDS EUROPE GMBH
	 	DC HKH  705543 	 	BR HBI890508HKH 	 	USD	 	 	222,359.40	 	 	 	20091201	 
	HANESBRANDS EUROPE GMBH
	 	DC HKH  705534 	 	BR HBI890510HKH 	 	USD	 	 	83,038.72	 	 	 	20091201	 
	HANESBRANDS EUROPE GMBH
	 	DC HKH  705530 	 	BR HBI890514HKH 	 	USD	 	 	44,821.59	 	 	 	20091201	 






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicant Name 	 	DC number	 	Issue date	 	 	 	DC Outstanding amt	 	 	Expiry date	 
	HANESBRANDS EUROPE GMBH
	 	DC HKH  705535	 	BR HBI890536HKH 	 	USD	 	 	6,198.50	 	 	 	20091201	 
	HANESBRANDS EUROPE GMBH
	 	DC HKH  705535	 	BR HBI890588HKH 	 	USD	 	 	14,581.00	 	 	 	20091201	 
	HANESBRANDS EUROPE GMBH
	 	DC HKH  705536	 	BR HBI890594HKH 	 	USD	 	 	13,427.28	 	 	 	20091201	 
	HANESBRANDS EUROPE GMBH
	 	DC HKH  705501	 	BR HBI890618HKH 	 	USD	 	 	2,440.80	 	 	 	20091202	 
	HANESBRANDS EUROPE GMBH
	 	DC HKH  705545	 	BR HBI890733HKH 	 	USD	 	 	20,874.00	 	 	 	20091203	 
	HANESBRANDS EUROPE GMBH
	 	DC HKH  705537	 	BR HBI890734HKH 	 	USD	 	 	8,798.70	 	 	 	20091203	 
	HANESBRANDS EUROPE GMBH
	 	DC HKH  705529	 	BR HBI890735HKH 	 	USD	 	 	10,089.27	 	 	 	20091203	 
	HANESBRANDS EUROPE GMBH
	 	DC HKH  705519	 	BR HBI890736HKH 	 	USD	 	 	2,935.62	 	 	 	20091203	 
	HANESBRANDS EUROPE GMBH
	 	DC HKH  705536	 	BR HBI890757HKH 	 	USD	 	 	13,164.00	 	 	 	20091203	 
	HANESBRANDS
INC-OUTERWEAR DIVISION
	 	HKH  680344	 	20090625	 	USD	 	 	1,941.49	 	 	 	20091130	 
	HANESBRANDS
INC-OUTERWEAR DIVISION
	 	HKH  680345	 	20091125	 	USD	 	 	80,461.62	 	 	 	20100224	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684540	 	20091008	 	USD	 	 	2,709.61	 	 	 	20091128	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684546	 	20091015	 	USD	 	 	260.19	 	 	 	20091128	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684543	 	20091008	 	USD	 	 	1,270.26	 	 	 	20091128	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684542	 	20091008	 	USD	 	 	905.05	 	 	 	20091205	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684547	 	20091015	 	USD	 	 	4,698.68	 	 	 	20091205	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684541	 	20091008	 	USD	 	 	1,586.16	 	 	 	20091205	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684544	 	20091015	 	USD	 	 	85.78	 	 	 	20091212	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684548	 	20091015	 	USD	 	 	128,402.09	 	 	 	20091212	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684562	 	20091109	 	USD	 	 	164,069.96	 	 	 	20091212	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684560	 	20091104	 	USD	 	 	180,893.29	 	 	 	20091212	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684556	 	20091104	 	USD	 	 	42,808.80	 	 	 	20091212	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684549	 	20091023	 	USD	 	 	193,239.00	 	 	 	20091219	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684551	 	20091023	 	USD	 	 	133,225.21	 	 	 	20091219	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684557	 	20091104	 	USD	 	 	161,931.94	 	 	 	20091219	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684552	 	20091023	 	USD	 	 	5,867.04	 	 	 	20091219	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684554	 	20091028	 	USD	 	 	42,438.36	 	 	 	20091226	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684558	 	20091104	 	USD	 	 	105,597.21	 	 	 	20091226	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684559	 	20091104	 	USD	 	 	245,126.87	 	 	 	20091226	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684555	 	20091104	 	USD	 	 	192,136.51	 	 	 	20100102	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684561	 	20091109	 	USD	 	 	108,982.59	 	 	 	20100102	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684553	 	20091028	 	USD	 	 	262,511.55	 	 	 	20100102	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684563	 	20091112	 	USD	 	 	168,391.80	 	 	 	20100102	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684564	 	20091112	 	USD	 	 	98,739.96	 	 	 	20100109	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684565	 	20091112	 	USD	 	 	72,970.80	 	 	 	20100109	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684566	 	20091112	 	USD	 	 	129,585.16	 	 	 	20100109	 






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicant Name 	 	DC number	 	Issue date	 	 	 	DC Outstanding amt	 	 	Expiry date	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684567	 	20091112	 	USD	 	 	310,300.69	 	 	 	20100109	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684568	 	20091124	 	USD	 	 	188,693.94	 	 	 	20100116	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684569	 	20091124	 	USD	 	 	138,768.18	 	 	 	20100116	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	HKH  684570	 	20091124	 	USD	 	 	165,422.23	 	 	 	20100116	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	DC HKH  684544	 	BR SLC890823HKH	 	USD	 	 	8,927.20	 	 	 	20091203	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	DC HKH  684542	 	BR SLC890844HKH	 	USD	 	 	61,870.24	 	 	 	20091203	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	DC HKH  684556	 	BR SLC890821HKH	 	USD	 	 	33,691.20	 	 	 	20091204	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	DC HKH  684546	 	BR SLC890822HKH	 	USD	 	 	3,119.84	 	 	 	20091204	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	DC HKH  684543 	 	BR SLC890824HKH	 	USD	 	 	70,427.84	 	 	 	20091204	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	DC HKH  684547 	 	BR SLC890843HKH	 	USD	 	 	357,988.00	 	 	 	20091204	 
	HANESBRANDS
INC-UNDERWEAR DIVISION
	 	DC HKH  684541 	 	BR SLC890916HKH	 	USD	 	 	53,726.40	 	 	 	20091204	 






	 	 	 	 	 	 	 	 	 	 	 
	Standby
LC’s	 	 	 	 	 	 	 	Beneficiary	 
	HANESBRANDS INC.
	 	SDCMTN551270	 	USD	 	6,400,000.00	 	 AIG       
	HANESBRANDS INC.
	 	 00333982(S-628808) 	 	USD	 	500,000.00	 	 Safety National       
	HANESBRANDS INC.
	 	SLT343989	 	USD	 	1,219,000.00	 	 Travelers Indemnity Co      
	HANESBRANDS INC.
	 	SLT333983	 	USD	 	1,600,000.00	 	 State of Pennsylvania       
	HANESBRANDS INC.
	 	SLT751117	 	USD	 	147,000.00	 	 Arrowood Indemnity Company  







 












 





EXHIBIT A-1




FORM OF REVOLVING NOTE




			
	$                    
	 	[DATE]






     FOR VALUE RECEIVED, HANESBRANDS INC., a Maryland corporation (the “Borrower”),
promises to pay to the order of [Name of Lender] (the “Lender”) on the Stated Maturity Date
the principal sum of up to [                                        ] ($[                    ]) or, if less, the aggregate
unpaid principal amount of all Revolving Loans shown on the schedule attached hereto (and any
continuation thereof) made (or continued) by the Lender pursuant to that certain Amended and
Restated Credit Agreement, dated as of December [                    ], 2009 (as amended, supplemented, amended and
restated or otherwise modified from time to time, the “Credit Agreement”), among the
Borrower, the Lenders, Barclays Bank PLC and Goldman Sachs Credit Partners L.P., as the
Co-Documentation Agents, Bank of America, N.A. and HSBC Securities (USA) Inc., as the
Co-Syndication Agents, JPMorgan Chase Bank, N.A., as the Administrative Agent and the Collateral
Agent, and JPMorgan Securities Inc., Banc of America Securities LLC, HSBC Securities (USA) Inc. and
Barclays Capital, as the Joint Lead Arrangers and Joint Bookrunners. Terms used in this Revolving
Note, unless otherwise defined herein, have the meanings provided in the Credit Agreement.



     The Borrower also promises to pay interest on the unpaid principal amount hereof from time to
time outstanding from the date hereof until maturity (whether by acceleration or otherwise) and,
after maturity, until paid, at the rates per annum and on the dates specified in the Credit
Agreement.



     Payments of both principal and interest are to be made pursuant to the terms of the Credit
Agreement.



     This Revolving Note is one of the Revolving Notes referred to in, and evidences Indebtedness
incurred under, the Credit Agreement, to which reference is made for a description of the security
for this Revolving Note and for a statement of the terms and conditions on which the Borrower is
permitted and required to make prepayments and repayments of principal of the Indebtedness
evidenced by this Revolving Note and on which such Indebtedness may be declared to be immediately
due and payable.



     All parties hereto, to the extent permitted by applicable law, whether as makers, endorsers or
otherwise, severally waive presentment for payment, demand, protest and notice of dishonor.



 









 





     THIS REVOLVING NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH
PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).



	 	 	 	 	 
	 	HANESBRANDS INC.


 	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



REVOLVING LOANS AND PRINCIPAL PAYMENTS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Amount of	 	 	 	Amount of Principal	 	Unpaid Principal	 	 	 	 
	 	 	Loan Made	 	 	 	Repaid	 	Balance	 	 	 	 
	 	 	Alternate	 	LIBO	 	Interest	 	Alternate	 	LIBO	 	Alternate	 	LIBO	 	 	 	Notation
	Date	 	Base Rate	 	Rate	 	Period	 	Base Rate	 	Rate	 	Base Rate	 	Rate	 	Total	 	Made By
	 





 











 





EXHIBIT A-2




FORM OF NEW TERM NOTE





	$                    	[DATE]




     FOR VALUE RECEIVED, HANESBRANDS INC., a Maryland corporation (the “Borrower”),
promises to pay to the order of [NAME OF LENDER] (the “Lender”) on the Stated Maturity Date
the principal sum of                     DOLLARS ($                    ) or, if less, the aggregate unpaid
principal amount of all New Term Loans shown on the schedule attached hereto (and any continuation
thereof) made (or continued) by the Lender pursuant to that certain Amended and Restated Credit
Agreement, dated as of December [___], 2009 (as amended, supplemented, amended and restated or
otherwise modified from time to time, the “Credit Agreement”), among the Borrower, the
Lenders, Barclays Bank PLC and Goldman Sachs Credit Partners L.P., as the Co-Documentation Agents,
Bank of America, N.A. and HSBC Securities (USA) Inc., as the Co-Syndication Agents, JPMorgan Chase
Bank, N.A., as the Administrative Agent and the Collateral Agent, and JPMorgan Securities Inc.,
Banc of America Securities LLC, HSBC Securities (USA) Inc. and Barclays Capital, as the Joint Lead
Arrangers and Joint Bookrunners. Terms used in this New Term Note, unless otherwise defined
herein, have the meanings provided in the Credit Agreement.



     The Borrower also promises to pay interest on the unpaid principal amount hereof from time to
time outstanding from the date hereof until maturity (whether by acceleration or otherwise) and,
after maturity, until paid, at the rates per annum and on the dates specified in the Credit
Agreement.



     Payments of both principal and interest are to be made pursuant to the terms of the Credit
Agreement.



     This New Term Note is one of the New Term Notes referred to in, and evidences Indebtedness
incurred under, the Credit Agreement, to which reference is made for a description of the security
for this New Term Note and for a statement of the terms and conditions on which the Borrower is
permitted and required to make prepayments and repayments of principal of the Indebtedness
evidenced by this New Term Note and on which such Indebtedness may be declared to be immediately
due and payable. All parties hereto, to the extent permitted by applicable law, whether as makers,
endorsers, or otherwise, severally waive presentment for payment, demand, protest and notice of
dishonor.



     THIS LOAN HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) FOR PURPOSES OF SECTIONS 1271
ET SEQ. OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. THE ISSUE DATE OF THIS SECURITY IS
[___], [___]. FOR INFORMATION REGARDING THE ISSUE PRICE, THE YIELD TO MATURITY, THE AMOUNT OF
OID PER $1,000 OF PRINCIPAL AMOUNT AND, IF APPLICABLE, THE COMPARABLE YIELD AND PROJECTED PAYMENT
SCHEDULE, PLEASE CONTACT [___] AT [___], ATTENTION: [___].



 









 




     THIS NEW TERM NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH
PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).




	 	 	 	 	 
	 
	 	HANESBRANDS INC.	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



NEW TERM LOANS AND PRINCIPAL PAYMENTS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Amount of New Term	 	 	 	 	 	 	Amount of Principal	 	 	Unpaid Principal	 	 	 	 	 	 	 	 
	 	 	 	 	Loan Made	 	 	 	 	 	 	Repaid	 	 	Balance	 	 	 	 	 	 	 	 
	 	 	 	 	Alternate	 	 	LIBO	 	 	Interest	 	 	Alternate	 	 	LIBO	 	 	Alternate	 	 	LIBO	 	 	 	 	 	 	Notation	 
	Date	 	 	Base Rate	 	 	Rate	 	 	Period	 	 	Base Rate	 	 	Rate	 	 	Base Rate	 	 	Rate	 	 	Total	 	 	Made By	 






 











 





EXHIBIT A-3




FORM OF SWING LINE NOTE




			
	$                    
	 	[DATE]






     FOR VALUE RECEIVED, the undersigned, HANESBRANDS INC., a Maryland corporation (the
“Borrower”), promises to pay to the order of [NAME OF LENDER] (the “Lender”) on the
Stated Maturity Date for Swing Line Loans the principal sum of                      DOLLARS
($                    ) or, if less, the aggregate unpaid principal amount of all Swing Line Loans made by
the Lender pursuant to the Amended and Restated Credit Agreement, dated as of December [___], 2009
(as amended, supplemented, amended and restated or otherwise modified from time to time, the
“Credit Agreement”), among the Borrower, the Lenders, Barclays Bank PLC and Goldman Sachs
Credit Partners L.P., as the Co-Documentation Agents, Bank of America, N.A. and HSBC Securities
(USA) Inc., as the Co-Syndication Agents, JPMorgan Chase Bank, N.A., as the Administrative Agent
and the Collateral Agent, and JPMorgan Securities Inc., Banc of America Securities LLC, HSBC
Securities (USA) Inc. and Barclays Capital, as the Joint Lead Arrangers and Joint Bookrunners.
Terms used in this Swing Line Note, unless otherwise defined herein, have the meanings provided in
the Credit Agreement.



     The Borrower also promises to pay interest on the unpaid principal amount hereof from time to
time outstanding from the date hereof until maturity (whether by acceleration or otherwise) and,
after maturity, until paid, at the rates per annum and on the dates specified in the Credit
Agreement.



     Payments of both principal and interest are to be made pursuant to the terms of the Credit
Agreement.



     This Swing Line Note is the Swing Line Note referred to in, and evidences Indebtedness
incurred under, the Credit Agreement, to which reference is made for a description of the security
for this Swing Line Note and for a statement of the terms and conditions on which the Borrower is
permitted and required to make prepayments and repayments of principal of the Indebtedness
evidenced by this Swing Line Note and on which such Indebtedness may be declared to be immediately
due and payable.



     All parties hereto, to the extent permitted by applicable law, whether as makers, endorsers,
or otherwise, severally waive presentment for payment, demand, protest and notice of dishonor.



 









 





     THIS SWING LINE NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.



	 	 	 	 	 
	  
	 	HANESBRANDS INC.
 	 
	  
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 





	 	 	 	 	 



SWING LINE LOANS AND PRINCIPAL PAYMENTS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Amount of Swing	 	 	Amount of Principal	 	 	Outstanding	 	 	 	 
	Date	 	 	Line Loan	 	 	Payment	 	 	Principal Balance	 	 	Notation Made By	 






 











 





EXHIBIT B-1




FORM OF BORROWING REQUEST




JPMorgan Chase Bank, N.A.,

as Administrative Agent

JPMorgan Loan Services

10 South Dearborn

Chicago, IL 60603

Attention: Joyce King

Fax: 312-385-7096

Phone: 312-385-7025

E-mail: jpm.agency.servicing.4@jpmchase.com




HANESBRANDS INC.



Ladies and Gentlemen:




     This Borrowing Request is delivered to you pursuant to Section 2.3 of the Amended and Restated
Credit Agreement, dated as of December [___], 2009 (as amended, supplemented, amended and restated
or otherwise modified from time to time, the “Credit Agreement”), among the Borrower, the
Lenders, Barclays Bank PLC and Goldman Sachs Credit Partners L.P., as the Co-Documentation Agents,
Bank of America, N.A. and HSBC Securities (USA) Inc., as the Co-Syndication Agents, JPMorgan Chase
Bank, N.A., as the Administrative Agent and the Collateral Agent, and JPMorgan Securities Inc.,
Banc of America Securities LLC, HSBC Securities (USA) Inc. and Barclays Capital, as the Joint Lead
Arrangers and Joint Bookrunners. Terms used herein, unless otherwise defined herein, have the
meanings provided in the Credit Agreement.



     The Borrower hereby requests that a [Revolving Loan] [New Term Loan] [Swing Line Loan] be made
in the aggregate principal amount of $[_____________] on _____, ___as a [Base Rate
Loan] [LIBO Rate Loan having an Interest Period of ___[months] [weeks]].



     The Borrower hereby acknowledges that, pursuant to Section 5.2.2 of the Credit Agreement, each
of the delivery of this Borrowing Request and the acceptance by the Borrower of the proceeds of the
Loans requested hereby constitutes a representation and warranty by the Borrower that, on the date
of the making of such Loans, and both before and after giving effect thereto, all statements set
forth in Section 5.2.1 of the Credit Agreement are true and correct.



     The Borrower agrees that if prior to the time of the Borrowing requested hereby any matter
certified to herein by it will not be true and correct to the extent set forth in Section 5.2.1 of
the Credit Agreement at such time as if then made, it will promptly so notify the Administrative
Agent. Except to the extent, if any, that prior to the time of the Borrowing requested hereby the
Administrative Agent shall receive written notice to the contrary from the Borrower, each matter
certified to herein shall be deemed once again to be certified as true and



 









 




correct to the extent set forth in Section 5.2.1 of the Credit Agreement at the date of such
Borrowing as if then made.




     Please wire transfer the proceeds of the Borrowing to the accounts of the following persons at
the financial institutions indicated respectively:



	 	 	 	 	 	 	 	 	 
	 	 	Person to be Paid	 	 
	Amount to	 	 	 	 	 	Name, Address, etc.
	be Transferred	 	Name	 	Account No.	 	Of Transferee Lender
	$

	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Attention:	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Attention:	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	$

	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Attention:	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Balance of such
proceeds

	 	The Borrower
	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Attention:	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 





 









 




     IN WITNESS WHEREOF, the Borrower has caused this Borrowing Request to be executed and
delivered, and the certifications and warranties contained herein to be made, by its duly
Authorized Officer, solely in such capacity and not as an individual,
this ________day of
__________, ____.



	 	 	 	 	 
	 	





HANESBRANDS INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 












 





EXHIBIT B-2




FORM OF ISSUANCE REQUEST




JPMorgan Chase Bank, N.A.,

  as Administrative Agent

Letter of Credit Department

10 South Dearborn

Chicago, IL 60603

Attention: Carolyn Edwards

Fax: 312-732-2729

Phone: 312-732-2621

E-mail: carolyn.x.edwards@jpmchase.com




HSBC Bank USA, National Association

  as an Issuer

[   ]

[   ]

Attention: [   ]

Fax: [   ]

Phone: [   ]

Email: [   ]1




[NAME OF ANY ADDITIONAL ISSUER,

  as an Issuer

[   ]

[   ]

Attention: [   ]

Fax: [   ]

Phone: [   ]

Email: [   ]]




HANESBRANDS INC.



Ladies and Gentlemen:




     This Issuance Request is delivered to you pursuant to Section 2.6 of that certain Amended and
Restated Credit Agreement, dated as of December [___], 2009 (as amended, supplemented, amended and
restated or otherwise modified from time to time, the “Credit Agreement”), among the
Borrower, the Lenders, Barclays Bank PLC and Goldman Sachs Credit Partners L.P., as the
Co-Documentation Agents, Bank of America, N.A. and HSBC Securities (USA) Inc., as the
Co-Syndication Agents, JPMorgan Chase Bank, N.A., as the Administrative Agent and the Collateral
Agent, and JPMorgan Securities Inc., Banc of America Securities LLC,





 




			
	1	 	To obtain proper contact information.




 









 









HSBC Securities (USA) Inc. and Barclays Capital, as the Joint Lead Arrangers and Joint
Bookrunners. Terms used herein, unless otherwise defined herein, have the meanings provided in the
Credit Agreement.




     The Borrower hereby requests that on
                    
                    
___,                     
 (the “Date of Issuance”),2
[NAME OF ISSUER] (the “Issuer”), [issue a [Standby]
[Commercial] Letter of Credit in the initial Stated Amount of $       
                   
               with a Stated Expiry
Date (as defined therein) of                
                    
      ___,              
       ] [extend the Stated Expiry Date
3,4
(as defined under Letter of Credit No. ___, issued on           
                     
          ___,          
           , in the initial
Stated Amount of $                   
                     )
 to a revised Stated Expiry Date (as defined therein) of            
                     
        ___,           
          ].



     The beneficiary of the requested Letter of
Credit will be                     
                    
                  
  , and such
Letter of Credit will be in support of                
                     
                     
   .



     The Borrower hereby acknowledges that, pursuant to Section 5.2.2 of the Credit Agreement, each
of the delivery of this Issuance Request and the acceptance by the Borrower of the [issuance]
[extension] of the Letter of Credit requested hereby constitutes a representation and warranty by
the Borrower that, on the date of such [issuance] [extension], and both before and after giving
effect thereto, all statements set forth in Section 5.2.1 of the Credit Agreement are true and
correct in all material respects (unless stated to relate solely to an earlier date, in which case
such representations and warranties shall be true and correct in all material respects as of such
earlier date).



     The Borrower agrees that if prior to the time of the [issuance] [extension] of the Letter of
Credit requested hereby any matter certified to herein by it will not be true and correct in all
material respects at such time as if then made, it will promptly so notify the Administrative
Agent. Except to the extent, if any, that prior to the time of the [issuance] [extension] of the
Letter of Credit requested hereby the Administrative Agent shall receive written notice to the
contrary from the Borrower, each matter certified to herein shall be deemed once again to be
certified as true and correct in all material respects at the date of such [issuance] [extension]
as if then made.





 




			
	2	 	Insert date of Issuance Request which shall
be on or before 10:00 a.m. on a Business Day, not less than three nor more than
ten Business Days’ notice, in the case of an initial issuance of a Letter of
Credit and not less than three Business Days’ prior notice, in the case of a
request for the extension of the Stated Expiry Date of a Standby Letter of
Credit (in each case, unless a shorter notice period is agreed to by the
relevant Issuer, in its sole discretion)
	 
	3	 	Each Standby Letter of Credit shall by its
terms be stated to expire no later than the earlier to occur of (i) five
Business Days prior to the Revolving Loan Commitment Termination Date or (ii)
unless otherwise agreed to by the Issuer, in its sole discretion, one year from
the date of issuance (provided that each Standby Letter of Credit may, with the
consent of the Issuer in its sole discretion, provide for automatic renewals
for one year periods (which in no event shall extend beyond the Revolving Loan
Commitment Termination Date).
	 
	4	 	Each Commercial Letter of Credit shall by its
terms be stated to expire on a date no later than the earlier to occur of (i)
five Business Days prior to the Revolving Loan Commitment Termination Date or
(ii) unless otherwise agreed to by the Issuer, in its sole discretion, 180 days
from the date of its issuance.




 









 










     IN WITNESS WHEREOF, the Borrower has caused this Issuance Request to be executed and
delivered, and the certifications and warranties contained herein to be made, by its duly
Authorized Officer, solely in such capacity and not as an individual, this                      day of
                                        ,                     .



	 	 	 	 	 
	 	HANESBRANDS INC.

 	 
	  
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 











 





EXHIBIT C




FORM OF CONTINUATION/CONVERSION NOTICE




JPMorgan Chase Bank, N.A.,

as Administrative Agent

JPMorgan Loan Services

10 South Dearborn

Chicago, IL 60603

Attention: Joyce King

Fax: 312-385-7096

Phone: 312-385-7025

E-mail: jpm.agency.servicing.4@jpmchase.com




HANESBRANDS INC.



Ladies and Gentlemen:




     This Continuation/Conversion Notice is delivered to you pursuant to Section 2.4 of the Amended
and Restated Credit Agreement, dated as of December [ ], 2009 (as amended, supplemented, amended
and restated or otherwise modified from time to time, the “Credit Agreement”), among the
Borrower, the Lenders, Barclays Bank PLC and Goldman Sachs Credit Partners L.P., as the
Co-Documentation Agents, Bank of America, N.A. and HSBC Securities (USA) Inc., as the
Co-Syndication Agents, JPMorgan Chase Bank, N.A., as the Administrative Agent and the Collateral
Agent, and JPMorgan Securities Inc., Banc of America Securities LLC, HSBC Securities (USA) Inc. and
Barclays Capital, as the Joint Lead Arrangers and Joint Bookrunners. Terms used herein, unless
otherwise defined herein, have the meanings provided in the Credit Agreement.



     The Borrower hereby requests that on                      ___, ___5,




     (1) $                    6 of the presently outstanding principal amount of the
[Revolving Loans] [New Term Loans] originally made on                      ___, ___, presently
being maintained as [Base Rate Loans] [LIBO Rate Loans],




     (2) be [converted into] [continued as],





 




			
	5	 	Insert date of Continuation/Conversion Notice
which shall be on or before 10:00 a.m. on a Business Day and not less than
three nor more than five Business Days’ notice, (A) to convert any Base Rate
Loan into one or more LIBO Rate Loans or (B) before the last day of the then
current Interest Period with respect thereto, to continue any LIBO Rate Loan as
a LIBO Rate Loan; provided that in the absence of prior notice as
required above (which notice may be delivered telephonically followed by
written confirmation within 24 hours thereafter by delivery of a
Continuation/Conversion Notice), with respect to any LIBO Rate Loan at least
three Business Days before the last day of the then current Interest Period
with respect thereto, such LIBO Rate Loan shall, on such last day,
automatically convert to a Base Rate Loan.
	 
	6	 	Minimum of $1,000,000 and integral multiples
of $1,000,000.




 









 











     (3) [LIBO Rate Loans having an Interest Period of ___[weeks] [months]]7
[Base Rate Loans].




     [The undersigned hereby certifies that no Event of Default has occurred and is
continuing on the date of the proposed [conversion] [continuation]]8





 




			
	7	 	Insert appropriate interest rate option and,
if applicable, the number of weeks (one or two) if available, or months (one,
two, three or six, or if available nine or twelve) with respect to LIBO Rate
Loans.
	 
	8	 	Insert this sentence only in the event of a
conversion from a Base Rate Loan to a LIBO Rate Loan or a continuation of a
LIBO Rate Loan.




 









 










     IN WITNESS WHEREOF, the Borrower has caused this Continuation/Conversion Notice to be executed
and delivered by its duly Authorized Officer, solely in such capacity and not as an individual,
this ___day of                     , ___.



	 	 	 	 	 
	 	  	 	 
	 	HANESBRANDS INC.


 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 











 





EXHIBIT D




FORM OF LENDER ASSIGNMENT AGREEMENT




[DATE]




HANESBRANDS INC.,
   
as the Borrower

1000 East Hanes Mill Rd

Winston Salem, NC 27105

Attn: General Counsel




JPMorgan Chase Bank, N.A.,
   
as Administrative Agent

JPMorgan Loan Services

10 South Dearborn

Chicago, IL 60603

Attention: Joyce King

Fax: 312-385-7096

Phone: 312-385-7025

E-mail: jpm.agency.servicing.4@jpmchase.com




HANESBRANDS INC.




Ladies and Gentlemen:




     This Lender Assignment Agreement (this “Assignment and Acceptance”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
“Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement identified
below, receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and
Conditions set forth in Annex 1 attached hereto (the “Standard Terms and
Conditions”) are hereby agreed to be incorporated herein by reference and made a part of this
Assignment and Acceptance.



     For
an agreed consideration, the Assignor  hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent (as defined below) as contemplated below (i)
all of the Assignor’s rights, benefits, obligations, liabilities and indemnities in its capacity as
a Lender under (and in connection with) the Credit Agreement and any other Loan Documents to the
extent related to the amount and percentage interest identified below of all of such outstanding
rights and obligations of the Assignor under the respective facilities identified below (including
without limitation any Letters of Credit Outstanding and Swing Line Loans) and (ii) to the extent
permitted to be assigned under applicable law, all claims, suits, causes of



 









 





action and any other right of the Assignor (in its capacity as a Lender) against any Person,
whether known or unknown, arising under or in connection with the Credit Agreement, the other Loan
Documents or in any way based on or related to any of the foregoing, including, but not limited to,
contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or
in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the
rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to
herein collectively as, the “Assigned Interest”). Such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this Assignment and Acceptance,
without representation or warranty by the Assignor.




     This Assignment and Acceptance shall be effective as of the Effective Date [upon the written
consent of the Administrative Agent]1 [, each Issuer, the Swing Line Lender]2
[and the Borrower (as defined below); provided that the Borrower shall be deemed to have
given its consent seven Business Days after the date notice thereof has been delivered by the
Assignor (through the Administrative Agent) to the Borrower, unless such consent is expressly
refused by the Borrower prior to such seventh Business Day]3 being subscribed in the
space indicated below.



	 	 	 	 	 	 	 
	1.

	 	Assignor:
	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	2.

	 	Assignee:	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	 	 	[and is an Affiliate/Approved Fund of [identify Lender] 4]






	 	 	 	 	 
	3.

	 	Borrower:
	 	HANESBRANDS INC. (the “Borrower”)
	 
	 	 	 	 
	4.

	 	Administrative Agent:
	 	JPMORGAN CHASE BANK, N.A., as the administrative agent under the Credit
Agreement (the “Administrative Agent”)
	 
	 	 	 	 
	5.

	 	Credit Agreement:
	 	Amended and Restated Credit Agreement, dated as of December [___], 2009 (as
amended, supplemented, amended and restated or otherwise modified from
time to time, the “Credit Agreement”), among the Borrower, the Lenders,
Barclays Bank PLC and Goldman Sachs Credit Partners L.P., as the
Co-Documentation Agents, Bank of America, N.A. and








 




			
	1	 	Administrative Agent consent required for
assignments (i) to an Eligible Assignee that is not a Lender, an Approved Fund
or an Affiliate of a Lender and (ii) pursuant to clause (a)(i) of Section 10.11
of the Credit Agreement.
	 
	2	 	Consent of each Issuer and the Swing Line
Lender is required for assignments of Revolving Loan Commitments to an Eligible
Assignee that is not a Lender, an Approved Fund or an Affiliate of a Lender.
	 
	3	 	Borrower consent required (i) pursuant to
clause (a)(i) of Section 10.11 of the Credit Agreement and (ii) so long as no
Event of Default has occurred and is continuing, for assignments of Revolving
Loan Commitments to an Eligible Assignee that is not a Lender, an Approved Fund
or an Affiliate of a Lender.
	 
	4	 	Select as applicable.




 









 









			
	 	 	HSBC Securities (USA) Inc., as the Co-Syndication Agents,
JPMorgan Chase Bank, N.A., as the Administrative Agent and the
Collateral Agent, and JPMorgan Securities Inc., Banc of America
Securities LLC, HSBC Securities (USA) Inc. and Barclays Capital,
as the Joint Lead Arrangers and Joint Bookrunners.





6. Assigned Interest:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Aggregate Amount of	 	Amount of	 	 
	 	 	Commitment/Loans	 	Commitment/Loans	 	Percentage Assigned
	Facility Assigned	 	for all Lenders	 	Assigned	 	of Commitment/Loans
	[Revolving Loan 

Commitment/Revolving 

Loans]

	 	 	$	 	 	 	$	 	 	 	%	 
	[New Term Loan]

	 	 	$	 	 	 	$	 	 	 	%	 






	 	 	 	 	 
	Effective Date:

	 	 
	 	[DATE]






 









 






     The terms set forth in this Assignment and Acceptance are hereby agreed to as of the Effective
Date:



	 	 	 	 	 
	 	  	 	 
	 	ASSIGNOR

[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 	  	 	 
	 	  	 	 
	 	ASSIGNEE

[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



[Consented to and] Accepted:

JPMORGAN CHASE BANK, N.A.,
   
as the Administrative Agent [and the Swing Line Lender]




	 	 	 	 	 
	 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 
	[Consented to:

HANESBRANDS INC.,   

  as the Borrower

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:]	 	 	 
	 
	[Consented to:

HSBC Bank USA, National Association,

as an Issuer

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:]	 	 	 
	 
	[[NAME OF ANY ADDITIONAL ISSUER],

as an Issuer

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:]	 	 	 
	 




 











 





ANNEX 1




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ACCEPTANCE




          1. Representations and Warranties.




          1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the
transactions contemplated hereby; and (b) except as provided in clause (a) above, assumes no
responsibility with respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower or any of its Subsidiaries or Affiliates
or any other Person obligated in respect of any Loan Document or (iv) the performance or observance
by the Borrower or any of its Subsidiaries or Affiliates or any other Person of any of their
respective obligations under any Loan Document.




          1.2 Assignee. The Assignee (a) represents and warrants that (i) it has full power and
authority, and has taken all action necessary, to execute and deliver this Assignment and
Acceptance and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it is an Eligible Assignee under the Credit Agreement (subject to receipt of
such consents as may be required under the Credit Agreement), (iii) from and after the Effective
Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to
the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has
received a copy of the Credit Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 5.1.6 or 7.1.1 thereof, as applicable, and such other
documents and information as it has deemed appropriate to make its own credit analysis and decision
to enter into this Assignment and Acceptance and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance on the
Administrative Agent or any other Lender, and (v) if it is a Non-U.S. Lender, attached to this
Assignment and Acceptance is any documentation required to be delivered by it pursuant to the terms
of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it
will, independently and without reliance on the Administrative Agent, the Collateral Agent, the
Assignor or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be performed by it as a
Lender.




          2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts which have accrued to but excluding the






 









 







Effective Date and to the Assignee for amounts which have accrued from and after the Effective
Date.




          3. General Provisions. This Assignment and Acceptance shall be binding upon, and inure
to the benefit of, the parties hereto and their respective successors and assigns. This Assignment
and Acceptance may be executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this Assignment and
Acceptance by telecopy or facsimile (or other electronic) transmission shall be effective as
delivery of a manually executed counterpart of this Assignment and Acceptance. This Assignment and
Acceptance shall be deemed to be a contract made under, governed by, and construed in accordance
with, the laws of the State of New York (including for such purposes Sections 5-1401 and 5-1402 of
the General Obligations Law of the State of New York) without regard to conflicts of laws
principles.





 












 





EXHIBIT E




FORM
OF COMPLIANCE CERTIFICATE


HANESBRANDS INC.




     This Compliance Certificate is delivered pursuant to clause (c) of Section 7.1.1 of the
Amended and Restated Credit Agreement, dated as of December [___], 2009 (as amended, supplemented,
amended and restated or otherwise modified from time to time, the “Credit Agreement”),
among the Borrower, the Lenders, Barclays Bank PLC and Goldman Sachs Credit Partners L.P., as the
Co-Documentation Agents, Bank of America, N.A. and HSBC Securities (USA) Inc., as the
Co-Syndication Agents, JPMorgan Chase Bank, N.A., as the Administrative Agent and the Collateral
Agent, and JPMorgan Securities Inc., Banc of America Securities LLC, HSBC Securities (USA) Inc. and
Barclays Capital, as the Joint Lead Arrangers and Joint Bookrunners. Terms used herein that are
defined in the Credit Agreement, unless otherwise defined herein, have the meanings provided (or
incorporated by reference) in the Credit Agreement.



     The Borrower hereby certifies, represents and warrants as follows in respect of the period
(the “Computation Period”) commencing on              
                      
                       

   ,            
          and ending
on
           
           
            
            
              
 ,          
           
(such latter date being the “Computation Date”) and with respect to the Computation Date:



          1. Defaults. As of the Computation Date, no Default had occurred and was continuing.
1




          2. Financial Covenants.




               a. Leverage Ratio. The Leverage Ratio on the Computation Date was                                         , as
computed on Attachment 1 hereto. The maximum Leverage Ratio permitted pursuant to clause
(a) of Section 7.2.4 of the Credit Agreement on the Computation Date was                                         .



               b. Interest Coverage Ratio. The Interest Coverage Ratio on the Computation Date was
                                        , as computed on Attachment 2 hereto. The minimum Interest Coverage Ratio
permitted pursuant to clause (b) of Section 7.2.4 of the Credit Agreement on the Computation Date
was                                         .



          3. 2 [Excess Cash Flow: The Excess Cash Flow was $                                        ,
as computed on Attachment 3 hereto.] Such amount multiplied by the Applicable
Percentage (which is                     % based on the Leverage Ratio set forth above) is $                    . Such amount minus
the






 




			
	1	 	If a Default has occurred, specify the details
of such default and the action that the Borrower or other Obligor has taken or
proposes to take with respect thereto.
	 
	2	 	Use in the case of a Compliance Certificate
delivered pursuant to clause (c) of Section 7.1.1 of the Credit Agreement if
applicable.




 









 









aggregate amount of all voluntary prepayments of Loans (but including Revolving Loans and
Swing Line Loans only to the extent there was a corresponding reduction of the Revolving Loan
Commitment Amount pursuant to Section 2.2.1 of the Credit Agreement) made during the Computation
Period (which was $                    ) is equal to $                    . As a result, 3[we are required to make a
mandatory prepayment in such amount] 4[we are not required to make a mandatory
prepayment of Excess Cash Flow].




          4. Subsidiaries: Except as set forth below, no Subsidiary has been formed or acquired
since the delivery of the last Compliance Certificate. The formation and/or acquisition of such
Subsidiary was in compliance with Section 7.1.8 of the Credit Agreement.




     [Insert names of any new entities.]



          5. Neither the Borrower nor any Obligor has changed its legal name or jurisdiction of
organization, during the Computation Period, except as indicated on Attachment 4 hereto.






 




			
	3	 	Use if amount is positive.
	 
	4	 	Use if amount is zero or less.




 









 










     IN WITNESS WHEREOF, the Borrower has caused this Compliance Certificate to be executed and
delivered, and the certification and warranties contained herein to be made, by the treasurer,
chief financial or accounting Authorized Officer of the Borrower, solely in such capacity and not
as an individual, as of                  
         
     
         ,
 20        .



	 	 	 	 	 
	 	HANESBRANDS INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



Attachment 1




(to
__/__/__ Compliance

Certificate)




LEVERAGE RATIO

on                     

(the “Computation Date”)



Leverage Ratio:




	 	 	 	 	 
	1.

	 	Total Debt: on the Computation Date, in each case exclusive
of (a) intercompany Indebtedness between the Borrower and its
Subsidiaries, (b) any Contingent Liability in respect of any
of the foregoing, (c) any Permitted Factoring Facility, (d)
any Commercial Letter of Credit, (e) any Letter of Credit or
other credit support relating to the termination of agreements
with respect to Hedging Obligations, in each case under this
clause (e), incurred in connection with or as a result of the
Transaction and (f) any Open Account Paying Agreements, the
outstanding principal amount of all Indebtedness of the
Borrower and its Subsidiaries, comprised of:
	 	 






	 	 	 	 	 	 	 
	(a)

	all obligations of such Person for borrowed
money or advances and all obligations of such
Person evidenced by bonds, debentures, notes or
similar instruments
	 	$
 

	 	 
	 
	(b)

	all monetary obligations, contingent or
otherwise, relative to the face amount of all
letters of credit, whether or not drawn, and
banker’s acceptances issued for the account of
such Person
	 	$
 

	 	 
	 
	(c)

	all Capitalized Lease Liabilities of such
Person
	 	$
 

	 	 
	 
	(d)

	monetary obligations arising under Synthetic
Leases
	 	$
 

	 	 
	 
	(e)

	all obligations of such Person pursuant to any
Permitted Securitization (other than Standard
Securitization Undertakings) or any Permitted
Factoring Facility.	 	 	 	 
	 
	(f)

	TOTAL DEBT: The sum of
Item 1(a) through
1(e)
	 	$
 

	 	 






	 	 	 	 	 	 	 
	2.

	 	Net Income (the aggregate of all amounts which would be
included as net income on the consolidated financial
statements of the Borrower and its Subsidiaries for the
Computation Period)
	 	$
 

	 	 
	 
	3.

	 	to the extent deducted in determining Net Income, amounts
	 	$
 

	 	 






 









 






	 	 	 	 	 	 	 
	 

	 	attributable to amortization (including amortization of
goodwill and other intangible assets)	 	 	 	 
	 
	 	 	 	 	 	 
	4.

	 	to the extent deducted in determining Net Income, Federal,
state, local and foreign income withholding, franchise, state
single business unitary and similar Tax expense
	 	$
 

	 	 
	 
	 	 	 	 	 	 
	5.

	 	to the extent deducted in determining Net Income, Interest
Expense (the aggregate interest expense (both, without
duplication, when accrued or paid and net of interest income
paid during such period to the Borrower and its Subsidiaries)
of the Borrower and its Subsidiaries for such applicable
period, including the portion of any payments made in respect
of Capitalized Lease Liabilities allocable to interest expense
but excluding interest expense attributable to a Permitted
Factoring Facility)
	 	$
 

	 	 
	 
	 	 	 	 	 	 
	6.

	 	to the extent deducted in determining Net Income,
depreciation of assets
	 	$
 

	 	 
	 
	 	 	 	 	 	 
	7.

	 	to the extent deducted in determining Net Income, all
non-cash charges, including all non-cash charges associated
with announced restructurings, whether announced previously or
in the future
	 	$
 

	 	 
	 
	 	 	 	 	 	 
	8.

	 	to the extent deducted in determining Net Income, net cash
restructuring charges associated with or related to any
contemplated restructurings in an aggregate amount not to
exceed $120,000,000 since September 5, 2006 	 	$
 

	 	 
	 
	 	 	 	 	 	 
	9.

	 	to the extent deducted in determining Net Income, all
amounts in respect of extraordinary losses
	 	$
 

	 	 
	 
	 	 	 	 	 	 
	10.

	 	to the extent deducted in determining Net Income, non-cash
compensation expense, or other non-cash expenses or charges,
arising from the sale of stock, the granting of stock options,
the granting of stock appreciation rights and similar
arrangements (including any repricing, amendment,
modification, substitution or change of any such stock, stock
option, stock appreciation rights or similar arrangements)
	 	$
 

	 	 
	 
	 	 	 	 	 	 
	11.

	 	to the extent included in determining Net Income, any
financial advisory fees, accounting fees, legal fees and other
similar advisory and consulting fees, cash charges in respect
of strategic market reviews, management bonuses and early
retirement of Indebtedness, and related out-of-pocket expenses
incurred by the Borrower or any of its Subsidiaries as a
result of the Transaction, including fees and expesnes in
connection with the issuance, redemption or exchange of the
	 	$
 

	 	 







 











 





	 	 	 	 	 	 	 
	 	 	 	 	2016 Senior Notes, all
determined in accordance with GAAP
	 	 
	 	 	 	 	 
	 	 
	 	12.	 	 	to the extent included in determining Net
Income, non-cash or unrealized losses on
agreements with respect to Hedging Obligations

	 	$                    
	 	 	 	 	 
	 	 
	 	13.	 	 	to the extent included in determining Net
Income and to the extent non-recurring and not
capitalized, any financial advisory fees,
accounting fees, legal fees and similar
advisory and consulting fees and related costs
and expenses of the Borrower and its
Subsidiaries incurred as a result of Permitted
Acquisitions, Investments, Restricted
Payments, Dispositions permitted under the
Credit Agreement and the issuance of Capital
Securities or Indebtedness permitted under the
Credit Agreement, all determined in accordance
with GAAP and in each case eliminating any
increase or decrease in income resulting from
non-cash accounting adjustments made in
connection with the related Permitted
Acquisition or Dispositions

	 	$                    
	 	 	 	 	 
	 	 
	 	14.	 	 	to the extent included in determining Net
Income, unrealized losses on agreements with
respect to Hedging Obligations and the related
tax losses and any costs, fees and expenses
related to the termination thereof, in each
case incurred in connection with or as a
result of the Transaction
	 	 
	 	 	 	 	 
	 	 
	 	15.	 	 	to the extent included in determining Net
Income, and to the extent the related loss is
not added back pursuant to Item 22 , all
proceeds of business interruption insurance
policies

	 	$                    
	 	 	 	 	 
	 	 
	 	16.	 	 	to the extent included in determining Net
Income, expenses incurred by the Borrower or
any Subsidiary to the extent reimbursed in
cash by a third party

	 	$                    
	 	 	 	 	 
	 	 
	 	17.	 	 	to the extent included in determining Net
Income, extraordinary, unusual or
non-recurring cash charges not to exceed
$10,000,000 in any Fiscal Year

	 	$                    
	 	 	 	 	 
	 	 
	 	18.	 	 	to the extent included in determining Net
Income, all amounts in respect of
extraordinary gains

	 	$                    
	 	 	 	 	 
	 	 
	 	19.	 	 	to the extent included in determining Net
Income, non-cash gains on agreements with
respect to Hedging Obligations

	 	$                    
	 	 	 	 	 
	 	 
	 	20.	 	 	to the extent included in determining Net
Income, reversals (in whole or in part) of any
restructuring charges previously treated as
Non-Cash Restructuring Charges in any prior
period

	 	$                    
	 	 	 	 	 
	 	 
	 	21.	 	 	to the extent included in determining Net
Income, gains on agreements with respect to
Hedging Obligations and any
	 	 






 









 






	 	 	 	 	 	 	 
	 	 	 	 	releated tax
gains, in each case incurred in connection
with or as a result of the Transaction
	 	 
	 	 	 	 	 
	 	 
	 	22.	 	 	to the extent included in determining Net
Income, non-cash items increasing such Net
Income for such period, other than (A) the
accrual of revenue consistent with past
practice and (B) the reversal in such period
of an accrual of, or cash reserve for, cash
expenses in a prior period, to the extent such
accrual or reserve did not increase EBITDA in
a prior period

	 	$                    
	 	 	 	 	 
	 	 
	 	23.	 	 	EBITDA: The sum of Items 2 through 17
minus Items 18 through 22

	 	$                    
	 	 	 	 	 
	 	 
	 	23.	 	 	LEVERAGE RATIO: ratio of Item 1 to Item 23

	 	:1.00







 









 






Attachment 2

(to __/__/__ Compliance

Certificate)




INTEREST COVERAGE RATIO

on                     

(the “Computation Date”)




     Interest Coverage Ratio:



	 	 	 	 	 	 	 
	  1.	 	 	EBITDA
(see Item 22 of Attachment 1)

	 	$                    
	 	 	 	 	 
	 	 
	  2.	 	 	Interest Expense of the Borrower and its
Subsidiaries (see Item 5 of Attachment 1)

	 	$                    
	 	 	 	 	 
	 	 
	  3.	 	 	INTEREST
COVERAGE RATIO: ratio of Item 1 to Item 2

	 	     :1.00  







 












 





Attachment 3

(to __/__/__ Compliance

Certificate)




EXCESS
CASH FLOW17

on the Computation Date




	 	 	 	 	 	 
	1.	 	 	EBITDA
(see Item 22 of Attachment 1)

	 	$                    
	 	 	 	 
	 	 
	2.	 	 	Interest Expense actually paid in cash by the Borrower and
its Subsidiaries

	 	$                    
	 	 	 	 
	 	 
	3.	 	 	scheduled principal repayments with respect to the
permanent reduction of Indebtedness, to the extent actually
made under the Credit Agreement

	 	$                    
	 	 	 	 
	 	 
	4.	 	 	all Federal, state, local and foreign income withholding,
franchise, state single business unitary and similar Taxes
actually paid in cash or payable (only to the extent related
to Taxes associated with such Fiscal Year) by the Borrower and
its Subsidiaries

	 	$                    
	 	 	 	 
	 	 
	5.	 	 	Capital Expenditures to the extent (x) actually made by the
Borrower and its Subsidiaries in such Fiscal Year or (y)
committed to be made by the Borrower and its Subsidiaries and
that are permitted to be carried forward to the next
succeeding Fiscal Year pursuant to Section 7.2.7 of the Credit
Agreement18

	 	$                    
	 	 	 	 
	 	 
	6.	 	 	the portion of the purchase price paid in cash with respect
to Permitted Acquisitions to the extent such Permitted
Acquisition was made in connection with the Borrower’s
offshore migration of its supply chain

	 	$                    
	 	 	 	 
	 	 
	7.	 	 	to the extent permitted to be included in the calculation
of EBITDA for such Fiscal Year, the amount of Cash
Restructuring Charges actually so included in such calculation

	 	$                    
	 	 	 	 
	 	 
	8.	 	 	without
duplication to any amounts deducted in preceding
Item 2 through Item 7, all items added back to EBITDA pursuant
to clause (b) of the definition of EBITDA in the Credit
Agreement
	 	 








 




			
	17	 	Use in the case of a Compliance Certificate
delivered concurrently with the financial information pursuant to clause (b) of
Section 7.1.1 of the Credit Agreement.
	 
	18	 	The amounts deducted from Excess Cash Flow
pursuant to clause (y) of Item 5 shall not thereafter be
deducted in the determination of Excess Cash Flow for the Fiscal Year during
which such payments were actually made.




 









 










	 	 	 	 	 	 
	 	 	 	that represent amounts actually paid in cash

	 	$                    
	 	 	 	 
	 	 
	9.	 	 	The
sum of Items 2 through 8

	 	$                    
	 	 	 	 
	 	 
	10.	 	 	EXCESS
CASH FLOW: Item 1 less Item 9

	 	$                    






 









 






Attachment 4

(to __/__/__ Compliance

Certificate)




CHANGE OF LEGAL NAME OR JURISDICTION OF INCORPORATION




	 	 	 
	Name of Borrower or Other Obligor

	 	New Legal Name or Jurisdiction of
Incorporation







 









 






EXHIBIT F




FORM OF

AMENDED AND RESTATED GUARANTY




     This AMENDED AND RESTATED GUARANTY (as amended, supplemented, amended and restated or
otherwise modified from time to time, this “Guaranty”), dated as of December [  ], 2009 is
made by HANESBRANDS INC., a Maryland corporation (the “Borrower”) and each U.S. Subsidiary
of the Borrower, from time to time party to this Guaranty (each individually, a “Subsidiary
Guarantor” and, together with the Borrower, each individually, a “Guarantor” and
collectively, the “Guarantors”), in favor of JPMORGAN CHASE BANK, N.A., as administrative
agent (together with its successor(s) thereto in such capacity, the “Administrative Agent”)
for each of the Secured Parties (capitalized terms used herein have the meanings set forth in or
incorporated by reference in Article I).



     WHEREAS, the Borrower, Citicorp USA, Inc., as administrative agent, and the other agents and
lenders party thereto entered into that certain Credit Agreement dated as of September 5, 2006 (the
“Existing Credit Agreement”);



     WHEREAS, pursuant to the Existing Credit Agreement, a Guaranty (the “Existing
Guaranty”), dated as of September 5, 2006, was entered into among the Borrower, the other
guarantors party thereto and Citicorp USA, Inc., as the administrative agent for the secured
parties referred to therein;



     WHEREAS, pursuant to an Amended and Restated Credit Agreement, dated as of December [  ],
2009 and (as amended, supplemented, amended and restated or otherwise modified from time to time,
the “Credit Agreement”), among the Borrower, the Lenders, Barclays Bank PLC and Goldman
Sachs Credit Partners L.P., as the Co-Documentation Agents, Bank of America, N.A. and HSBC
Securities (USA) Inc., as the Co-Syndication Agents, the Administrative Agent, the Collateral
Agent, and J.P. Morgan Securities Inc., Bank of America Securities LLC, HSBC Securities (USA) Inc.
and Barclays Capital as the Joint Lead Arrangers and Joint Bookrunners, the Lenders and the Issuers
have extended Commitments to make Credit Extensions to the Borrower; and



     WHEREAS, as a condition precedent to the making of the Credit Extensions under the Credit
Agreement, each Guarantor is required to execute and deliver this Guaranty;



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, each Guarantor agrees, for the benefit of each Secured Party, that the
Existing Guaranty is hereby amended and restated as of the Restatement Effective Date to read in
its entirety as follows:



 









 





ARTICLE I




DEFINITIONS



     SECTION 1.1. Certain Terms. The following terms (whether or not underscored) when
used in this Guaranty, including its preamble and recitals, shall have the following meanings (such
definitions to be equally applicable to the singular and plural forms thereof):



     “Administrative Agent” is defined in the preamble.



     “Borrower” is defined in the preamble.



     “Credit Agreement” is defined in the third recital.



     “Existing Credit Agreement” is defined in the first recital.



     “Existing Guaranty” is defined in the second recital.



     “Guarantor” and “Guarantors” are defined in the preamble.



     “Guaranty” is defined in the preamble.



     “Non-USD Currency” means a currency other than U.S. Dollars.



     “Secured Obligations” means, collectively, the Obligations, the Cash Management
Obligations and all Indebtedness of any Foreign Subsidiary or Obligor, as applicable, permitted
under clause (n) of Section 7.2.2 of the Credit Agreement owing to a Foreign Capital Lender.



     SECTION 1.2. Credit Agreement Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Guaranty, including its preamble and recitals, have
the meanings provided in the Credit Agreement.



ARTICLE II




GUARANTY PROVISIONS



     SECTION 2.1. Guaranty. Each Guarantor hereby jointly and severally absolutely,
unconditionally and irrevocably




     SECTION 2.1.1 guarantees the full and punctual payment when due, whether at stated
maturity, by required prepayment, declaration, acceleration, demand or otherwise, of all
Secured Obligations of the Borrower and its Subsidiaries now or hereafter existing, whether
for principal, interest (including interest accruing at the then applicable rate provided in
the Credit Agreement after the occurrence of any Event of Default set forth in Section 8.1.9
of the Credit Agreement, whether or not a claim for post-filing or post-petition interest is
allowed under applicable law following the institution of a



2









 






proceeding under bankruptcy, insolvency or similar laws), fees, Reimbursement
Obligations, expenses or otherwise (including all such amounts which would become due but
for the operation of the automatic stay under Section 362(a) of the United States Bankruptcy
Code, 11 U.S.C. §362(a), and the operation of Sections 502(b) and 506(b) of the United
States Bankruptcy Code, 11 U.S.C. §502(b) and §506(b)); and




     SECTION 2.1.2 indemnifies and holds harmless each Secured Party for any and all costs
and reasonable out-of-pocket expenses (including reasonable attorneys’ fees) incurred by
such Secured Party in enforcing any rights under this Guaranty (in each case to the same
extent the Secured Parties are indemnified and held harmless pursuant to Sections
10.3 and 10.4 of the Credit Agreement);


provided, however, that each Guarantor shall only be liable under this Guaranty for
the maximum amount of such liability that can be hereby incurred without rendering this Guaranty,
as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer, and not for any greater amount. This Guaranty constitutes a guaranty of
payment when due and not of collection, and each Guarantor specifically agrees that to the extent
permitted by applicable law it shall not be necessary or required that any Secured Party exercise
any right, assert any claim or demand or enforce any remedy whatsoever against the Borrower or any
of its Subsidiaries or any other Person before or as a condition to the obligations of such
Guarantor hereunder.




     SECTION 2.2. Reinstatement, etc. Each Guarantor hereby jointly and severally agrees
that this Guaranty shall continue to be effective or be reinstated, as the case may be, if at any
time any payment (in whole or in part) of any of the Secured Obligations is invalidated, declared
to be fraudulent or preferential, set aside, rescinded or must otherwise be restored by any Secured
Party, including upon the occurrence of any Default set forth in Section 8.1.9 of the Credit
Agreement or otherwise, all as though such payment had not been made.



     SECTION 2.3. Guaranty Absolute, etc. To the extent permitted by applicable law, this
Guaranty shall in all respects be a continuing, absolute, unconditional and irrevocable guaranty of
payment, and shall remain in full force and effect until the Termination Date has occurred. Each
Guarantor jointly and severally guarantees that the Secured Obligations will be paid strictly in
accordance with the terms of each Loan Document or other applicable agreement under which they
arise, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of any Secured Party with respect thereto. The liability
of each Guarantor under this Guaranty shall be joint and several, absolute, unconditional and
irrevocable to the extent permitted by applicable law irrespective of:




     SECTION 2.3.1 any lack of validity, legality or enforceability of any Loan Document or
other applicable agreement under which such Secured Obligations arise;




     SECTION 2.3.2 the failure of any Secured Party




     (a) to assert any claim or demand or to enforce any right or remedy against the
Borrower or any of its Subsidiaries or any other Person (including any



3









 






other guarantor) under the provisions of any Loan Document or other applicable
agreement under which such Secured Obligations arise or otherwise, or




     (b) to exercise any right or remedy against any other guarantor (including any
Guarantor) of, or collateral securing, any Secured Obligations;




     SECTION 2.3.3 any change in the time, manner or place of payment of, or in any other
term of, all or any part of the Secured Obligations, or any other extension, compromise or
renewal of any Secured Obligation;




     SECTION 2.3.4 any reduction, limitation, impairment or termination of any Secured
Obligations for any reason (other than the occurrence of the Termination Date), including
any claim of waiver, release, surrender, alteration or compromise, and shall not be subject
to (and each Guarantor hereby waives to the extent permitted by law, any right to or claim
of) any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of
the invalidity, illegality, nongenuineness, irregularity, compromise, unenforceability of,
or any other event or occurrence affecting, any Secured Obligations or otherwise (other than
the occurrence of the Termination Date);




     SECTION 2.3.5 any amendment to, rescission, waiver, or other modification of, or any
consent to or departure from, any of the terms of any Loan Document or other applicable
agreement under which such Secured Obligations arise;




     SECTION 2.3.6 any addition, exchange or release of any collateral or of any Person that
is (or will become) a guarantor (including a Guarantor hereunder) of the Secured
Obligations, or any surrender or non-perfection of any collateral, or any amendment to or
waiver or release or addition to, or consent to or departure from, any other guaranty held
by any Secured Party securing any of the Secured Obligations;




     SECTION 2.3.7 any law, regulation, decree or order of any jurisdiction, or any other
event, affecting any term of any Secured Obligation or any Secured Party’s rights with
respect thereto, including (i) the application of any such law, regulation, decree or order,
including any prior approval, which would prevent the remittance of funds outside of such
jurisdiction or the unavailability of Dollars in any legal exchange market in such
jurisdiction in accordance with normal commercial practice, (ii) a declaration of banking
moratorium or any suspension of payments by banks in such jurisdiction or the imposition by
such jurisdiction or any Governmental Authority thereof of any moratorium on, the required
rescheduling or restructuring of, or required approval of payments on, any indebtedness in
such jurisdiction, (iii) any expropriation, confiscation, nationalization or requisition by
such country or any Governmental Authority that directly or indirectly deprives any
Guarantor of any assets or their use or of the ability to operate its business or a material
part thereof, or (iv) any war (whether or not declared), insurrection, revolution, hostile
act, civil strife or similar events occurring in such jurisdiction which has the same effect
as the events described in clause (i), (ii) or (iii) above (in each
of the cases contemplated in clauses (i) through (iv) above, to the extent
occurring or existing on or at any time after the date of this Guaranty); or



4









 






     SECTION 2.3.8 any other circumstance which might otherwise constitute a defense
available to, or a legal or equitable discharge of, the Borrower or any of its Subsidiaries,
any surety or any guarantor (other than payment or performance of the Secured Obligations,
in each case in full and, with respect to payments, in cash).



     SECTION 2.4. Setoff. Each Secured Party shall, upon the occurrence and during the
continuance of any Event of Default described in clauses (a) through (d) of Section 8.1.9 of the
Credit Agreement or, with the consent of the Required Lenders, upon the occurrence and during the
continuance of any other Event of Default, have the right to appropriate and apply to the payment
of the Secured Obligations owing to it (if then due and payable), any and all balances, credits,
deposits, accounts or moneys of such Guarantor then or thereafter maintained with such Secured
Party (other than payroll, trust or tax accounts); provided that, any such appropriation
and application shall be subject to the provisions of Section 4.8 of the Credit Agreement. Each
Secured Party agrees promptly to notify the applicable Guarantor and the Administrative Agent after
any such appropriation and application made by such Secured Party; provided that, the
failure to give such notice shall not affect the validity of such setoff and application. The
rights of each Secured Party under this Section are in addition to other rights and remedies
(including other rights of setoff under applicable law or otherwise) which such Secured Party may
have.



     SECTION 2.5. Waiver, etc. Each Guarantor hereby waives, to the extent permitted by
law, promptness, diligence, notice of acceptance and any other notice with respect to any of the
Secured Obligations and this Guaranty and any requirement that any Secured Party protect, secure,
perfect or insure any Lien, or any property subject thereto, or exhaust any right or take any
action against the Borrower or any of its Subsidiaries or any other Person (including any other
guarantor) or entity or any collateral securing the Secured Obligations, as the case may be.



     SECTION 2.6. Postponement of Subrogation, etc. Each Guarantor agrees that it will, to
the extent permitted by law, not exercise any rights which it may acquire by way of rights of
subrogation under any Loan Document or other applicable agreement under which such Secured
Obligations arise to which it is a party, nor shall any Guarantor seek any contribution or
reimbursement from the Borrower or any of its Subsidiaries in respect of any payment made under any
Loan Document or other applicable agreement under which such Secured Obligations arise or
otherwise, until following the Termination Date. Any amount paid to any Guarantor on account of
any such subrogation rights prior to the Termination Date shall be held in trust for the benefit of
the Secured Parties and shall immediately be paid and turned over to the Administrative Agent for
the benefit of the Secured Parties in the exact form received by such Guarantor (duly endorsed in
favor of the Administrative Agent, if required), to be credited and applied against the outstanding
Secured Obligations, in accordance with Section 2.7; provided, however,
that if any Guarantor has made payment to the Secured Parties of all or any part of the Secured
Obligations and the Termination Date has occurred, then at such Guarantor’s request, the
Administrative Agent (on behalf of the Secured Parties) will, at the expense of such Guarantor,
execute and deliver to such Guarantor appropriate documents (without recourse and without
representation or warranty) necessary to evidence the transfer by subrogation to such Guarantor of
an interest in the Secured Obligations resulting from such payment. In furtherance of the
foregoing, at all times prior to the Termination Date, each Guarantor shall refrain from taking any
action or commencing any proceeding against the Borrower or any of its Subsidiaries (or its
successors or assigns, whether in connection with a bankruptcy proceeding or otherwise)



5









 




to recover any amounts in respect of payments made under this Guaranty to any Secured Party
other than as required by applicable law to preserve such rights.




     SECTION 2.7. Payments; Application. Each Guarantor hereby agrees with each Secured
Party as follows to the extent permitted by applicable law:




     SECTION 2.7.1 Each Guarantor agrees that all payments made by such Guarantor hereunder
will be made to the Administrative Agent, without set-off, counterclaim or other defense
(other than the defense of payment or performance) and in accordance with Sections 4.6 and
4.7 of the Credit Agreement, free and clear of and without deduction for any Taxes, each
Guarantor hereby agreeing to comply with and be bound by the provisions of Sections 4.6 and
4.7 of the Credit Agreement in respect of all payments made by it hereunder and the
provisions of which Sections are hereby incorporated into and made a part of this Guaranty
by this reference as if set forth herein; provided, that references to the
“Borrower” in such Sections shall also be deemed to be references to each Subsidiary
Guarantor.




     SECTION 2.7.2 All payments made hereunder shall be applied upon receipt as set forth in
Section 4.7 of the Credit Agreement.



     SECTION 2.8. Place and Currency of Payment. Each Guarantor agrees that all payments
made by such Guarantor hereunder will be made to the Administrative Agent in Dollars at 399 Park
Avenue, New York, New York or such other location as the Administrative Agent shall so designate
from time to time.



ARTICLE III




REPRESENTATIONS AND WARRANTIES



     In order to induce the Secured Parties to enter into the Credit Agreement and make Credit
Extensions thereunder, and to induce the Secured Parties to enter into Rate Protection Agreements
and provide services giving rise to Cash Management Obligations, each Guarantor represents and
warrants to each Secured Party as set forth below.



     SECTION 3.1. Credit Agreement Representations and Warranties. The representations and
warranties contained in Article VI of the Credit Agreement, insofar as the representations and
warranties contained therein are applicable to any Guarantor and its properties, are true and
correct in all material respects as of the date hereof, unless stated to relate solely to an
earlier date, each such representation and warranty set forth in such Article (insofar as
applicable as aforesaid) and all other terms of the Credit Agreement to which reference is made
therein, together with all related definitions and ancillary provisions, being hereby incorporated
into this Guaranty by this reference as though specifically set forth in this Article.



     SECTION 3.2. Financial Condition, etc. Each Guarantor has knowledge of each other
Obligor’s financial condition and affairs and that it has adequate means to obtain from each such
Obligor on an ongoing basis information relating thereto and to such Obligor’s ability to pay and
perform the Secured Obligations, and agrees to assume the responsibility for keeping, and to keep,
so informed for so long as this Guaranty is in effect. Each Guarantor acknowledges and



6









 




agrees that the Secured Parties shall have no obligation to investigate the financial
condition or affairs of any Obligor for the benefit of such Guarantor nor to advise such Guarantor
of any fact respecting, or any change in, the financial condition or affairs of any other Obligor
that might become known to any Secured Party at any time, whether or not such Secured Party knows
or believes or has reason to know or believe that any such fact or change is unknown to such
Guarantor, or might (or does) materially increase the risk of such Guarantor as a guarantor, or
might (or would) affect the willingness of such Guarantor to continue as a guarantor of the Secured
Obligations.




     SECTION 3.3. Best Interests. It is in the best interests of each Guarantor (other
than the Borrower) to execute this Guaranty inasmuch as such Guarantor will, as a result of being a
Subsidiary of the Borrower, derive substantial direct and indirect benefits from the Credit
Extensions made from time to time to the Borrower by the Lenders and the Issuers pursuant to the
Credit Agreement and the execution and delivery of Rate Protection Agreements between the Borrower,
other Obligors and certain Secured Parties, and each Guarantor agrees that the Secured Parties are
relying on this representation in agreeing to make Credit Extensions to the Borrower.



ARTICLE IV




COVENANTS, ETC.



     Each Guarantor covenants and agrees that, at all times prior to the Termination Date, it will
perform, comply with and be bound by all of the agreements to which it is a party, covenants and
obligations contained in the Credit Agreement which are applicable to such Guarantor or its
properties, each such agreement, covenant and obligation contained in the Credit Agreement and all
other terms of the Credit Agreement to which reference is made in this Article, together with all
related definitions and ancillary provisions, being hereby incorporated into this Guaranty by this
reference as though specifically set forth in this Article.



ARTICLE V




MISCELLANEOUS PROVISIONS



     SECTION 5.1. Loan Document. This Guaranty is a Loan Document executed pursuant to the
Credit Agreement and shall (unless otherwise expressly indicated herein) be construed, administered
and applied in accordance with the terms and provisions thereof, including Article X thereof.



     SECTION 5.2. Binding on Successors, Transferees and Assigns; Assignment. This
Guaranty shall remain in full force and effect until the Termination Date has occurred, shall be
jointly and severally binding upon each Guarantor and its successors, transferees and assigns and
shall inure to the benefit of and be enforceable by each Secured Party and its successors,
transferees and permitted assigns; provided, however, that no Guarantor may (unless
otherwise permitted under the terms of the Credit Agreement) assign any of its obligations
hereunder without the prior written consent of all Lenders.



7









 





     SECTION 5.3. Amendments, etc. No amendment to or waiver of any provision of this
Guaranty, nor consent to any departure by any Guarantor from its obligations under this Guaranty,
shall in any event be effective unless the same shall be in writing and signed by the
Administrative Agent (on behalf of the Lenders or the Required Lenders, as the case may be,
pursuant to Section 10.1 of the Credit Agreement) and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which given.



     SECTION 5.4. Notices. All notices and other communications provided for hereunder
shall be in writing or by facsimile and addressed, delivered or transmitted to the appropriate
party at the address or facsimile number of such party (in the case of any Subsidiary Guarantor, in
care of the Borrower) set forth on Schedule II to the Credit Agreement or at such other address or
facsimile number as may be designated by such party in a notice to the other party. Any notice, if
mailed and properly addressed with postage prepaid or if properly addressed and sent by pre-paid
courier service, shall be deemed given when received; any such notice, if transmitted by facsimile,
shall be deemed given when the confirmation of transmission thereof is received by the transmitter.



     SECTION 5.5. Additional Guarantors. Upon the execution and delivery by any other
Person of a supplement in the form of Annex I hereto, such Person shall become a
“Guarantor” hereunder with the same force and effect as if it were originally a party to this
Guaranty and named as a “Guarantor” hereunder. The execution and delivery of such supplement shall
not require the consent of any other Guarantor hereunder (except to the extent a consent has been
obtained), and the rights and obligations of each Guarantor hereunder shall remain in full force
and effect notwithstanding the addition of any new Guarantor as a party to this Guaranty.



     SECTION 5.6. Release of Guarantor. Upon the occurrence of the Termination Date, this
Guaranty and all obligations of each Guarantor hereunder shall terminate, without delivery of any
instrument or performance of any act by any party. In addition, at the request of the Borrower,
and at the sole expense of the Borrower, a Subsidiary Guarantor shall be automatically released
from its obligations hereunder in the event that the Capital Securities of such Subsidiary
Guarantor are Disposed of in a transaction permitted by the Credit Agreement; provided,
that the Borrower shall have delivered to the Administrative Agent, prior to the date of the
proposed release, a written request for release identifying the relevant Subsidiary Guarantor. The
Administrative Agent agrees to deliver to the Borrower, at the Borrower’s sole expense, such
documents as the Borrower may reasonably request to evidence such termination and release.



     SECTION 5.7. No Waiver; Remedies. In addition to, and not in limitation of,
Sections 2.3 and 2.5, no failure on the part of any Secured Party to exercise, and
no delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.



     SECTION 5.8. Section Captions. Section captions used in this Guaranty are for
convenience of reference only, and shall not affect the construction of this Guaranty.



8









 





     SECTION 5.9. Severability. Wherever possible each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Guaranty shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Guaranty.



     SECTION 5.10. Judgment Currency. The Secured Obligations of each Guarantor in respect
of any sum due to any Secured Party under or in respect of this Guaranty shall, notwithstanding any
judgment in a currency (the “Judgment Currency”) other than the currency in which such sum
was originally denominated (the “Original Currency”), be discharged only to the extent that
on the Business Day following receipt by such Secured Party of any sum adjudged to be so due in the
Judgment Currency, such Secured Party, in accordance with normal banking procedures, purchases the
Original Currency with the Judgment Currency. If the amount of Original Currency so purchased is
less than the sum originally due to such Secured Party, such Guarantor agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Secured Party against such
loss, and if the amount of Original Currency so purchased exceeds the sum originally due to such
Secured Party, such Secured Party agrees to remit such excess to such Guarantor.



     SECTION 5.11. Governing Law, Entire Agreement, etc. THIS GUARANTY WILL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR
SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
This Guaranty and the other Loan Documents constitute the entire understanding among the parties
hereto with respect to the subject matter hereof and thereof and supersede any prior agreements,
written or oral, with respect thereto.



     SECTION 5.12. Forum Selection and Consent to Jurisdiction. ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, ANY LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE
AGENT, THE LENDERS, THE ISSUER OR ANY GUARANTOR IN CONNECTION HEREWITH OR THEREWITH MAY BE BROUGHT
AND MAINTAINED IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT’S
OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND.
EACH GUARANTOR IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID,
OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR NOTICES SPECIFIED
FOR THE BORROWER IN SECTION 10.2 OF THE CREDIT AGREEMENT. EACH GUARANTOR HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR
HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED
TO ABOVE AND ANY CLAIM THAT



9









 




ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY
GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID
OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH GUARANTOR HEREBY
IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW SUCH IMMUNITY IN RESPECT OF ITS
OBLIGATIONS UNDER THE LOAN DOCUMENTS.




     SECTION 5.13. Waiver of Jury Trial. THE ADMINISTRATIVE AGENT (ON BEHALF OF ITSELF AND
EACH OTHER SECURED PARTY) AND EACH GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, EACH LOAN DOCUMENT,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE
ADMINISTRATIVE AGENT, SUCH LENDER, THE ISSUER OR SUCH GUARANTOR IN CONNECTION THEREWITH. EACH
GUARANTOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS
PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT, EACH LENDER AND THE ISSUER
ENTERING INTO THE LOAN DOCUMENTS.



     SECTION 5.14. Counterparts. This Guaranty may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of which shall
constitute together but one and the same agreement. Delivery of an executed counterpart of a
signature page to this Guaranty by facsimile (or other electronic transmission) shall be effective
as delivery of a manually executed counterpart of this Guaranty.



10









 





     IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly executed and delivered
by its Authorized Officer, solely in such capacity and not as an individual, as of the date first
above written.



	 	 	 	 	 
	 	



HANESBRANDS INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	HBI BRANDED APPAREL LIMITED, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	HANESBRANDS DIRECT, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	UPEL, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CARIBETEX, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




[Signature Page to Guaranty]




 









 








	 	 	 	 	 
	 	



SEAMLESS TEXTILES, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	BA INTERNATIONAL, L.L.C.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	HBI INTERNATIONAL, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	HBI BRANDED APPAREL ENTERPRISES, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CASA INTERNATIONAL, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	UPCR, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Guaranty]




 









 








	 	 	 	 	 
	 	

HBI SOURCING, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CEIBENA DEL, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	HANESBRANDS DISTRIBUTION, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CARIBESOCK, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	HANES PUERTO RICO, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	PLAYTEX INDUSTRIES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Guaranty]




 









 








	 	 	 	 	 
	 	

INNER SELF LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	PLAYTEX DORADO, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	HANES MENSWEAR, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	JASPER-COSTA RICA, L.L.C.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Guaranty]





 









 








	 	 	 	 	 
	ACCEPTED AND AGREED FOR ITSELF

AND ON BEHALF OF THE SECURED PARTIES:





JPMORGAN CHASE BANK, N.A.,

  as Administrative Agent

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



[Signature Page to Guaranty]





 











 





ANNEX I to

the Guaranty




     THIS
SUPPLEMENT, dated as of                           ,       (this “Supplement”), is to the
Amended and Restated Guaranty, dated as of December [  ], 2009 (as amended, supplemented, amended
and restated or otherwise modified from time to time, the “Guaranty”), among the Guarantors
(such capitalized term, and other terms used in this Supplement, to have the meanings set forth or
incorporated by reference in Article I of the Guaranty) from time to time party thereto, in favor
of JPMORGAN CHASE BANK, N.A., as administrative agent (together with its successor(s) thereto in
such capacity, the “Administrative Agent”) for each of the Secured Parties.



W I T N E S S E T H:




     WHEREAS, pursuant to the provisions of Section 5.5 of the Guaranty, each of the undersigned is
becoming a Subsidiary Guarantor under the Guaranty; and



     WHEREAS, each of the undersigned desires to become a “Guarantor” under the Guaranty in order
to induce the Secured Parties to continue to extend Credit Extensions under the Credit Agreement;



     NOW, THEREFORE, in consideration of the premises, and for other consideration (the receipt and
sufficiency of which is hereby acknowledged), each of the undersigned agrees, for the benefit of
each Secured Party, as follows.



     (i) Party to Guaranty, etc. In accordance with the terms of the Guaranty, by its
signature below, each of the undersigned hereby irrevocably agrees to become a Subsidiary Guarantor
under the Guaranty with the same force and effect as if it were an original signatory thereto and
each of the undersigned hereby (a) agrees to be bound by and comply with all of the terms and
provisions of the Guaranty applicable to it as a Subsidiary Guarantor and (b) represents and
warrants that the representations and warranties made by it as a Subsidiary Guarantor thereunder
are true and correct in all material respects as of the date hereof, unless stated to relate solely
to an earlier date. In furtherance of the foregoing, each reference to a “Guarantor” and/or
“Guarantors” in the Guaranty shall be deemed to include each of the undersigned.



     (ii) Representations. Each of the undersigned hereby represents and warrants that
this Supplement has been duly authorized, executed and delivered by it and that this Supplement and
the Guaranty constitute the legal, valid and binding obligation of each of the undersigned,
enforceable (except, in any case, as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights generally and by principles
of equity) against it in accordance with its terms.



     (iii) Full Force of Guaranty. Except as expressly supplemented hereby, the Guaranty
shall remain in full force and effect in accordance with its terms.



 









 





     (iv) Severability. Wherever possible each provision of this Supplement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Supplement shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Supplement or the Guaranty.



     (v) Indemnity; Fees and Expenses, etc. Without limiting the provisions of any other
Loan Document, each of the undersigned agrees to reimburse the Administrative Agent for its
reasonable out-of-pocket expenses incurred in connection with this Supplement, including reasonable
attorney’s fees and out-of-pocket expenses of the Administrative Agent’s counsel.



     (vi) Governing Law, Entire Agreement, etc. THIS SUPPLEMENT WILL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH
PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK). This
Supplement and the other Loan Documents constitute the entire understanding among the parties
hereto with respect to the subject matter hereof and thereof and supersede any prior agreements,
written or oral, with respect thereto.



     (vii) Counterparts. This Supplement may be executed by the parties hereto in several
counterparts, each of which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement. Delivery of an executed counterpart of a signature page
to this Supplement by facsimile (or other electronic transmission) shall be effective as delivery
of a manually executed counterpart of this Supplement.



2









 





     IN WITNESS WHEREOF, each of the undersigned has caused this Supplement to be duly executed and
delivered by its Authorized Officer as of the date first above written.



	 	 	 	 	 
	 	[NAME OF ADDITIONAL SUBSIDIARY]

 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[NAME OF ADDITIONAL SUBSIDIARY]

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[NAME OF ADDITIONAL SUBSIDIARY]

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



ACCEPTED AND AGREED FOR ITSELF

AND ON BEHALF OF THE SECURED PARTIES:




JPMORGAN CHASE BANK, N.A.,

   as Administrative Agent




	 	 	 	 
	 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 



 









 






	 	 	 	 	 



EXHIBIT G




FORM OF

AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT





     This AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT, dated as of December [  ], 2009 (as
amended, supplemented, amended and restated or otherwise modified from time to time, this
“Security Agreement”), is made by HANESBRANDS INC., a Maryland corporation (the
“Borrower”), and each Subsidiary Guarantor (terms used in the preamble and the recitals
have the definitions set forth in or incorporated by reference in Article I) from time to
time a party to this Security Agreement (each individually a “Grantor” and collectively,
the “Grantors”), in favor of JPMORGAN CHASE BANK, N.A., a national banking association
organized under the laws of the United States, as the administrative and the collateral agent
(together with its successor(s) thereto in such capacities, the “Administrative Agent” and
the “Collateral Agent”, respectively) for each of the Secured Parties.



     WHEREAS, the Borrower, Citicorp USA, Inc., as administrative agent, and the other agents and
lenders party thereto entered into that certain Credit Agreement dated as of September 5, 2006 (the
“Existing Credit Agreement”);



     WHEREAS, pursuant to the Existing Credit Agreement, a Pledge and Security Agreement (the
“Existing Security Agreement”), dated as of September 5, 2006, was entered into among the
Borrower, the other grantors party thereto and Citicorp USA, Inc., as the administrative agent and
Citibank, N.A. as the collateral agent for each of the secured parties referred to therein;



     WHEREAS, pursuant to an Amended and Restated Credit Agreement, dated as of December [  ],
2009 (as further amended, supplemented, amended and restated or otherwise modified from time to
time, the “Credit Agreement”), among the Borrower, the Lenders, Barclays Bank PLC and
Goldman Sachs Credit Partners L.P. as the Co-Documentation Agents, Bank of America, N.A. and HSBC
Securities (USA) Inc., as the Co-Syndication Agents, the Administrative Agent, the Collateral
Agent, and J.P. Morgan Securities Inc., Bank of America Securities LLC, HSBC Securities (USA) Inc.
and Barclays Capital as the Joint Lead Arrangers and Joint Bookrunners, the Lenders and the Issuers
have extended Commitments to make Credit Extensions to the Borrower; and



     WHEREAS, as a condition precedent to the making of the Credit Extensions under the Credit
Agreement, each Grantor is required to execute and deliver this Security Agreement;



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, each Grantor agrees, for the benefit of each Secured Party, that the Existing
Security Agreement is hereby amended and restated as of the Restatement Effective Date to read in
its entirety as follows:



 









 





ARTICLE I

DEFINITIONS




     SECTION 1.1. Certain Terms. The following terms (whether or not underscored) when
used in this Security Agreement, including its preamble and recitals, shall have the following
meanings (such definitions to be equally applicable to the singular and plural forms thereof):



     “Administrative Agent” is defined in the preamble.



     “Borrower” is defined in the preamble.



     “Collateral” is defined in Section 2.1.



     “Collateral Account” is defined in clause (b) of Section 4.3.



     “Collateral Agent” is defined in the preamble.



     “Computer Hardware and Software Collateral” means all of the Grantors’ right, title
and interest in and to:




     (a) all computer and other electronic data processing hardware, integrated computer
systems, central processing units, memory units, display terminals, printers, features,
computer elements, card readers, tape drives, hard and soft disk drives, cables, electrical
supply hardware, generators, power equalizers, accessories and all peripheral devices and
other related computer hardware, including all operating system software, utilities and
application programs in whatsoever form;




     (b) all software programs (including both source code, object code and all related
applications and data files), designed for use on the computers and electronic data
processing hardware described in clause (a) above;




     (c) all firmware associated therewith;




     (d) all documentation (including flow charts, logic diagrams, manuals, guides,
specifications, training materials, charts and pseudo codes) with respect to such hardware,
software and firmware described in the preceding clauses (a) through (c);
and




     (e) all rights with respect to all of the foregoing, including copyrights, licenses,
options, warranties, service contracts, program services, test rights, maintenance rights,
support rights, improvement rights, renewal rights and indemnifications and any
substitutions, replacements, improvements, error corrections, updates, additions or model
conversions of any of the foregoing;


provided that the foregoing shall not include Excluded Collateral.




     “Control Agreement” means an authenticated record in form and substance reasonably
satisfactory to the Collateral Agent that provides for the Collateral Agent to have “control” (as
defined in the UCC) over certain Collateral as provided herein.



2









 





     “Copyright Collateral” means all of the Grantors’ right, title and interest in and to:




     (a) all U.S. copyrights, registered or unregistered and whether published or
unpublished, now or hereafter in force including copyrights registered or applied for in the
United States Copyright Office, and registrations and recordings thereof and all
applications for registration thereof, whether pending or in preparation and all extensions
and renewals of the foregoing (“Copyrights”), including the Copyrights which are the
subject of a registration or application referred to in Item A of Schedule
V;




     (b) all express or implied Copyright licenses and other agreements for the grant by or
to such Grantor of any right to use any items of the type referred to in clause (a) above
(each a “Copyright License”), including each Copyright License referred to in
Item B of Schedule V;




     (c) the right to sue for past, present and future infringements of any of the
Copyrights owned by such Grantor, and for breach or enforcement of any Copyright License;
and




     (d) all proceeds of, and rights associated with, the foregoing (including Proceeds,
licenses, royalties, income, payments, claims, damages and proceeds of infringement suits);


provided that the foregoing shall not include Excluded Collateral.




     “Credit Agreement” is defined in the third recital.



     “Distributions” means all dividends paid on Capital Securities, liquidating dividends
paid on Capital Securities, shares (or other designations) of Capital Securities resulting from (or
in connection with the exercise of) stock splits, reclassifications, warrants, options, non-cash
dividends, mergers, consolidations, and all other distributions on or with respect to any Capital
Securities constituting Collateral.



     “Excluded Accounts” means payroll accounts, petty cash accounts, pension fund
accounts, 401(k) accounts, zero-balance accounts and other accounts that any Grantor may hold in
trust for others.



     “Excluded Collateral” is defined in Section 2.1.



     “Existing Credit Agreement” is defined in the first recital.



     “Existing Security Agreement” is defined in the second recital.



     “General Intangibles” means all “general intangibles” and all “payment intangibles”,
each as defined in the UCC, and shall include all interest rate or currency protection or hedging
arrangements, all tax refunds, all licenses, permits, concessions and authorizations and all
Intellectual Property Collateral (in each case, regardless of whether characterized as general
intangibles under the UCC).



3









 





     “Grantor” and “Grantors” are defined in the preamble.



     “Intellectual Property” means Trademarks, Patents, Copyrights, Trade Secrets and all
other similar types of intellectual property under any law, statutory provision or common law
doctrine in the United States.



     “Intellectual Property Collateral” means, collectively, the Computer Hardware and
Software Collateral, the Copyright Collateral, the Patent Collateral, the Trademark Collateral and
the Trade Secrets Collateral.



     “Owned Intellectual Property Collateral” means all Intellectual Property Collateral
that is owned by the Grantors.



     “Patent Collateral” means all of the Grantors’ right, title and interest in and to:




     (a) inventions and discoveries, whether patentable or not, all letters patent and
applications for United States letters patent, including all United States patent
applications in preparation for filing, including all reissues, divisions, continuations,
continuations-in-part, extensions, renewals and reexaminations of any of the foregoing,
including all patents issued by, or patent applications filed with, the United States Patent
and Trademark Office (“Patents”), including each Patent and Patent application
referred to in Item A of Schedule III;




     (b) all Patent licenses, and other agreements for the grant by or to such Grantor of
any right to use any items of the type referred to in clause (a) above (each a
“Patent License”), including each Patent License referred to in Item B of
Schedule III;




     (c) the right to sue third parties for past, present and future infringements of any
Patent or Patent application, and for breach or enforcement of any Patent License; and




     (d) all proceeds of, and rights associated with, the foregoing (including Proceeds,
licenses, royalties, income, payments, claims, damages and proceeds of infringement suits);


provided that the foregoing shall not include Excluded Collateral.




     “Permitted Liens” means all Liens permitted by Section 7.2.3 of the Credit Agreement
or any other Loan Document.



     “Secured Obligations” means, collectively, the Obligations, the Cash Management
Obligations and all Indebtedness of any Foreign Subsidiary or Obligor, as applicable, permitted
under clause (n) of Section 7.2.2 of the Credit Agreement owing to a Foreign Working Capital
Lender.



     “Securities Act” is defined in clause (a) of Section 6.2.



     “Security Agreement” is defined in the preamble.



4









 





     “Trademark Collateral” means all of the Grantors’ right, title and interest in and to:




     (a) (i) all United States trademarks, trade names, corporate names, company names,
business names, fictitious business names, trade styles, service marks, certification marks,
collective marks, logos and other source or business identifiers, and all goodwill of the
business associated therewith, now existing or hereafter adopted or acquired, whether
currently in use or not, all registrations and recordings thereof and all applications in
connection therewith, whether pending or in preparation for filing, including registrations,
recordings and applications in the United States Patent and Trademark Office, and all
common-law rights relating to the foregoing, and (ii) the right to obtain all reissues,
extensions or renewals of the foregoing (collectively referred to as “Trademarks”),
including those Trademarks referred to in Item A of Schedule IV;




     (b) all Trademark licenses and other agreements for the grant by or to such Grantor of
any right to use any Trademark (each a “Trademark License”), including each
Trademark License referred to in Item B of Schedule IV; and




     (c) all of the goodwill of the business connected with the use of, and symbolized by
the Trademarks described in clause (a) and, to the extent applicable, clause
(b);




     (d) the right to sue third parties for past, present and future infringements or
dilution of the Trademarks described in clause (a) and, to the extent applicable,
clause (b) or for any injury to the goodwill associated with the use of any such
Trademark or for breach or enforcement of any Trademark License; and




     (e) all proceeds of, and rights associated with, the foregoing (including Proceeds,
licenses, royalties, income, payments, claims, damages and proceeds of infringement suits);


provided that the foregoing shall not include Excluded Collateral.




     “Trade Secrets Collateral” means all of the Grantors’ right, title and interest
throughout the world in and to (a) all common law and statutory trade secrets and all other
confidential, proprietary or useful information and all know how (collectively referred to as
“Trade Secrets”) obtained by or used in or contemplated at any time for use in the business
of a Grantor, whether or not such Trade Secret has been reduced to a writing or other tangible
form, including all Documents and things embodying, incorporating or referring in any way to such
Trade Secret, (b) all Trade Secret licenses and other agreements for the grant by or to such
Grantor of any right to use any Trade Secret (each a “Trade Secret License”) including the
right to sue for and to enjoin and to collect damages for the actual or threatened misappropriation
of any Trade Secret and for the breach or enforcement of any such Trade Secret License, and (d) all
proceeds of, and rights associated with, the foregoing (including Proceeds, licenses, royalties,
income, payments, claims, damages and proceeds of infringement suits);


provided that the foregoing shall not include Excluded Collateral.





5











 






     SECTION 1.2. Credit Agreement Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Security Agreement, including its preamble and
recitals, have the meanings provided in the Credit Agreement.



     SECTION 1.3. UCC Definitions. When used herein the terms Account, Certificate of
Title, Certificated Securities, Chattel Paper, Commercial Tort Claim, Commodity Account, Commodity
Contract, Deposit Account, Document, Electronic Chattel Paper, Equipment, Goods, Instrument,
Inventory, Investment Property, Letter-of-Credit Rights, Payment Intangibles, Proceeds, Promissory
Notes, Securities Account, Security Entitlement, Supporting Obligations and Uncertificated
Securities have the meaning provided in Article 8 or Article 9, as applicable, of the UCC. Letters
of Credit has the meaning provided in Section 5-102 of the UCC.



ARTICLE II

SECURITY INTEREST




     SECTION 2.1. Grant of Security Interest. Each Grantor hereby grants to the Collateral
Agent, for its benefit and the ratable benefit of each other Secured Party, a continuing security
interest in all of such Grantor’s right, title and interest in and to the following property,
whether now or hereafter existing, owned or acquired by such Grantor, and wherever located,
(collectively, the “Collateral”):




     (a) Accounts;




     (b) Chattel Paper;




     (c) Commercial Tort Claims listed on Item I of Schedule II (as such
schedule may be amended or supplemented from time to time);




     (d) Deposit Accounts;




     (e) Documents;




     (f) General Intangibles;




     (g) Goods;




     (h) Instruments;




     (i) Investment Property;




     (j) Letter-of-Credit Rights and Letters of Credit;




     (k) Supporting Obligations;




     (l) all books, records, writings, databases, information and other property relating
to, used or useful in connection with, evidencing, embodying, incorporating or referring to,
any of the foregoing in this Section;



6








 






     (m) all Proceeds and products of the foregoing and, to the extent not otherwise
included, all payments under insurance (whether or not the Collateral Agent is the loss
payee thereof); and




     (n) all other property and rights of every kind and description and interests therein.



     Notwithstanding the foregoing, the term “Collateral” shall not include the following
(collectively, the “Excluded Collateral”):




     (i) any General Intangibles, healthcare insurance receivables or other rights
arising under any contracts, instruments, licenses or other documents as to which
the grant of a security interest would (A) constitute a violation of a valid and
enforceable restriction in favor of a third party on such grant, unless any required
consent shall have been obtained, (B) give any other party to such contract,
instrument, license or other document the right to terminate its obligations
thereunder, or (C) otherwise cause such Grantor to lose material rights thereunder;




     (ii) Investment Property consisting of Capital Securities of a direct Foreign
Subsidiary of such Grantor, in excess of 65% of the total combined voting power of
all Capital Securities of each such direct Foreign Subsidiary, except that such 65%
limitation shall not apply to a direct Foreign Subsidiary that (x) is treated as a
partnership under the Code or (y) is not treated as an entity that is separate from
(A) such Grantor; (B) any Person that is treated as a partnership under the Code or
(C) any “United States person” (as defined in Section 7701(a)(30) of the Code);




     (iii) any Investment Property (other than Equity Interests of a Subsidiary) of
any of the Grantors to the extent that applicable law or the organizational
documents or other applicable agreements among the investors of such Person with
respect to any such Investment Property (A) does not permit the grant of a security
interest in such interest or an assignment of such interest or requires the consent
of any third party to permit such grant of a security interest or assignment or (B)
would, following the grant of a security interest or assignment hereunder, would
cause any other Person (other than the Borrower or any of its Subsidiaries) to have
the right to purchase such Investment Property;




     (iv) any real or personal property, the granting of a security interest in
which would be void or illegal under any applicable governmental law, rule or
regulation, or pursuant thereto would result in, or permit the termination of, such
asset;




     (v) any real or personal property subject to a Permitted Lien (other than Liens
in favor of the Collateral Agent) to the extent that the grant of other Liens on
such asset (A) would result in a breach or violation of, or constitute a default
under, the agreement or instrument governing such Permitted Lien, (B)



7








 






would result in the loss of use of such asset, (C) would permit the holder of
such Permitted Lien to terminate such Grantor’s use of such asset or (D) would
otherwise result in a loss of material rights of such Grantor in such asset;




     (vi) any Excluded Accounts; or




     (vii) any applications for United States trademark registration pursuant to IS
U.S.L. §1051(b) (i.e., an intent-to-use application), until such time as such
registration is granted or, if earlier, the date of first use of the trademark, at
which point such application or registration shall constitute Collateral.



     SECTION 2.2. Security for Secured Obligations. This Security Agreement and the
Collateral in which the Collateral Agent for the benefit of the Secured Parties is granted a
security interest hereunder by the Grantors secure the payment and performance of all of the
Secured Obligations.



     SECTION 2.3. Grantors Remain Liable. Anything herein to the contrary notwithstanding,
to the extent permitted by applicable law:




     (a) the Grantors will remain liable under the contracts and agreements included in the
Collateral to the extent set forth therein, and will perform all of their duties and
obligations under such contracts and agreements to the same extent as if this Security
Agreement had not been executed;




     (b) the exercise by the Collateral Agent of any of its rights hereunder will not
release any Grantor from any of its duties or obligations under any such contracts or
agreements included in the Collateral; and




     (c) no Secured Party will have any obligation or liability under any contracts or
agreements included in the Collateral by reason of this Security Agreement, nor will any
Secured Party be obligated to perform any of the obligations or duties of any Grantor
thereunder or to take any action to collect or enforce any claim for payment assigned
hereunder.



     SECTION 2.4. Distributions on Pledged Shares. In the event that any Distribution with
respect to any Capital Securities pledged hereunder is permitted to be paid (in accordance with
Section 7.2.6 of the Credit Agreement), such Distribution or payment may be paid directly to the
applicable Grantor. If any Distribution is made in contravention of Section 7.2.6 of the Credit
Agreement, such Grantor shall hold the same segregated and for the benefit of the Collateral Agent
until paid to the Collateral Agent in accordance with Section 4.1.5.



     SECTION 2.5. Security Interest Absolute, etc. To the extent permitted by applicable
law, this Security Agreement shall in all respects be a continuing, absolute, unconditional and
irrevocable grant of security interest, and shall remain in full force and effect until the
Termination Date. To the extent permitted by applicable law, all rights of the Secured Parties and
the security interests granted to the Collateral Agent (for its benefit and the ratable benefit of
each other Secured Party) hereunder, and all obligations of the Grantors hereunder, shall, in each
case, be absolute, unconditional and irrevocable, irrespective of:



8








 






     (a) any lack of validity, legality or enforceability of any Loan Document or other
applicable agreement under which such Secured Obligations arise;




     (b) the failure of any Secured Party (i) to assert any claim or demand or to enforce
any right or remedy against the Borrower or any of its Subsidiaries or any other Person
(including any other Grantor) under the provisions of any Loan Document or other applicable
agreement under which such Secured Obligations arise or otherwise, or (ii) to exercise any
right or remedy against any other guarantor (including any other Grantor) of, or Collateral
securing, any Secured Obligations;




     (c) any change in the time, manner or place of payment of, or in any other term of, all
or any part of the Secured Obligations, or any other extension, compromise or renewal of any
Secured Obligations;




     (d) any reduction, limitation, impairment or termination of any Secured Obligations for
any reason (other than the occurrence of the Termination Date), including any claim of
waiver, release, surrender, alteration or compromise, and shall not be subject to (and each
Grantor hereby waives (to the extent permitted by law) any right to or claim of) any defense
or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality, nongenuineness, irregularity, compromise, unenforceability of, or any other
event or occurrence affecting, any Secured Obligations or otherwise;




     (e) any amendment to, rescission, waiver, or other modification of, or any consent to
or departure from, any of the terms of any Loan Document or other applicable agreement under
which such Secured Obligations arise;




     (f) any addition, exchange or release of any Collateral or of any Person that is (or
will become) a Grantor (including the Grantors hereunder) of the Secured Obligations, or any
surrender or non-perfection of any Collateral, or any amendment to or waiver or release or
addition to, or consent to or departure from, any other guaranty held by any Secured Party
securing any of the Secured Obligations; or




     (g) any other circumstance (other than payment or performance of the Secured
Obligations, in each case in full and, with respect to payments, in cash) which might
otherwise constitute a defense available to, or a legal or equitable discharge of, the
Borrower or any of its Subsidiaries, any surety or any guarantor.



     SECTION 2.6. Postponement of Subrogation. Each Grantor agrees that it will not
exercise any rights against another Grantor which it may acquire by way of rights of subrogation
under any Loan Document or other applicable agreement under which such Secured Obligations arise to
which it is a party until the Termination Date. No Grantor shall seek any contribution or
reimbursement from the Borrower or any of its Subsidiaries, in respect of any payment made under
any Loan Document or other applicable agreement under which such Secured Obligations arise or
otherwise, until following the Termination Date. Any amount paid to such Grantor on account of any
such subrogation rights prior to the Termination Date shall be held in trust for the benefit of the
Secured Parties and shall immediately be paid and turned over to the Collateral Agent for the
benefit of the Secured Parties in the exact form received by such Grantor (duly



9








 




endorsed in favor of the Collateral Agent, if required), to be credited and applied against
the outstanding Secured Obligations in accordance with Section 6.1; provided that
if such Grantor has made payment to the Secured Parties of all or any part of the Secured
Obligations and the Termination Date has occurred, then upon such Grantor’s notice to the
Collateral Agent of such payment and request, the Collateral Agent (on behalf of the Secured
Parties) will, at the expense of such Grantor, execute and deliver to such Grantor appropriate
documents (without recourse and without representation or warranty) necessary to evidence the
transfer by subrogation to such Grantor of an interest in the Secured Obligations resulting from
such payment. In furtherance of the foregoing, at all times prior to the Termination Date, such
Grantor shall refrain from taking any action or commencing any proceeding against the Borrower or
any of its Subsidiaries (or its successors or assigns, whether in connection with a bankruptcy
proceeding or otherwise) to recover any amounts in respect of payments made under this Security
Agreement to any Secured Party.




ARTICLE III

REPRESENTATIONS AND WARRANTIES




     In order to induce the Secured Parties to enter into the Credit Agreement and make Credit
Extensions thereunder, and to induce the Secured Parties to enter into Rate Protection Agreements
and provide services giving rise to Cash Management Obligations, after giving effect to the
Transaction, the Grantors represent and warrant to each Secured Party as set forth below.



     SECTION 3.1. As to Capital Securities of the Subsidiaries, Investment Property.




     (a) With respect to any direct U.S. Subsidiary of any Grantor that is




     (i) a corporation, business trust, joint stock company or similar Person, all
Capital Securities issued by such Subsidiary is duly authorized and validly issued,
fully paid and non-assessable; and




     (ii) a partnership or limited liability company, no Capital Securities issued
by such Subsidiary (A) is dealt in or traded on securities exchanges or in
securities markets, (B) expressly provides that such Capital Securities is a
security governed by Article 8 of the UCC or (C) is held in a Securities Account,
except, with respect to this clause (a)(ii), Capital Securities (x) for
which the the Collateral Agent is the registered owner or (y) with respect to which
the issuer has agreed in an authenticated record with such Grantor and the
Collateral Agent to comply with any written instructions of the Collateral Agent
without the consent of such Grantor; provided that the Grantor shall have
the right to provide instructions to such issuer until such issuer receives notice
of sole control from the Collateral Agent during the continuance of an Event of
Default; provided further that upon the cure or waiver of all Events
of Default, the Grantor shall have the right to give instructions to the issuer.



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     (b) Subject to Section 7.1.11 of the Credit Agreement, each Grantor has delivered all
Certificated Securities constituting Collateral held by such Grantor on the Restatement
Effective Date to the Collateral Agent, together with duly executed undated blank stock
powers, or other equivalent instruments of transfer reasonably acceptable to the Collateral
Agent.




     (c) Subject to the permitted update to Schedule I pursuant to Section 7.1.11 of
the Credit Agreement, as of the Restatement Effective Date, the percentage of the issued and
outstanding Capital Securities of each Subsidiary pledged by each Grantor hereunder is as
set forth on Schedule I.



     SECTION 3.2. Grantor Name, Location, etc.




     (a) As of the Restatement Effective Date, the jurisdiction in which each Grantor is
located for purposes of Sections 9-301 and 9-307 of the UCC is set forth in Item A
of Schedule II.




     (b) As of the Restatement Effective Date, each Grantor’s organizational identification
number is set forth in Item B of Schedule II.




     (c) During the four months preceding the Restatement Effective Date, no Grantor has
been known by any legal name different from the one set forth on the signature page hereto,
nor has such Grantor been the subject of any merger or other corporate reorganization,
except as set forth in Item C of Schedule II hereto.




     (d) As of the Restatement Effective Date, each Grantor’s federal taxpayer
identification number is (and, during the four months preceding the date hereof, such
Grantor has not had a federal taxpayer identification number different from that) set forth
in Item D of Schedule II hereto.




     (e) As of the Restatement Effective Date, no Grantor is a party to any federal, state
or local government contract with a value individually in excess of $2,000,000, except as
set forth in Item E of Schedule II hereto.




     (f) As of the Restatement Effective Date, no Grantor maintains any Deposit Accounts
(other than Excluded Accounts), Securities Accounts or Commodity Accounts with any Person,
in each case, except as set forth on Item F of Schedule II.




     (g) As of the Restatement Effective Date, no Grantor is the beneficiary of any Letters
of Credit, except as set forth on Item G of Schedule II.




     (h) As of the Restatement Effective Date, no Grantor has Commercial Tort Claims (x) in
which a suit has been filed by such Grantor and (y) where the amount of damages reasonably
expected to be claimed individually exceeds $2,000,000, except as set forth on Item
H of Schedule II.




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     (i) As of the Restatement Effective Date, the name set forth on the signature page
attached hereto is the true and correct legal name (as defined in the UCC) of each Grantor.



     SECTION 3.3. Ownership, No Liens, etc. Each Grantor owns its Collateral free and
clear of any Lien, except for any security interest (a) created by this Security Agreement and (b)
in the case of Collateral other than Certificated Securities, a Permitted Lien. No effective UCC
financing statement or other filing similar in effect covering all or any part of the Collateral is
on file in any recording office, except those filed in favor of the Collateral Agent relating to
this Security Agreement, those filed pursuant to the Existing Security Agreement (which shall have
been amended to be in favor of the Collateral Agent for the benefit of the Secured Parties),
Permitted Liens, filings which have not been authorized by the applicable Grantor or as to which a
duly authorized termination statement relating to such UCC financing statement or other instrument
has been delivered to the Collateral Agent on the Restatement Effective Date.



     SECTION 3.4. Possession of Inventory, Control; etc.




     (a) Each Grantor has, and agrees that it will maintain, exclusive possession of its
Documents, Instruments, Promissory Notes (not otherwise delivered to the Collateral Agent),
Goods, Equipment and Inventory maintained in the U.S., other than (i) Equipment and
Inventory in transit or out for repair or refurbishing in the ordinary course of business,
(ii) Equipment and Inventory that is in the possession or control of a consignee,
warehouseman, bailee agent or other Person (other than an Affiliate of such Grantor) located
in the United States in the ordinary course of business; provided that, to the
extent the fair market value (as determined in good faith by an Authorized Officer of the
applicable Grantor) in any U.S. location exceeds $5,000,000 and following notice from the
Collateral Agent (at the request of the Required Lenders) following the occurrence and
during the continuance of an Event of Default such Grantor shall promptly notify such
Persons of the security interest created in favor of the Secured Parties pursuant to this
Security Agreement, and such Grantor shall use commercially reasonable efforts to cause such
party to authenticate a record acknowledging that it holds possession of such Collateral for
the Secured Parties’ benefit and waives or subordinates any Lien held by it against such
Collateral, (iii) Instruments or Promissory Notes that have been delivered to the Collateral
Agent pursuant to Section 3.5 or are not otherwise required to be delivered
hereunder and (iv) such other Documents, Instruments, Promissory Notes, Goods, Equipment and
Inventory with a fair market value (as determined in good faith by an Authorized Officer of
the applicable Grantor) of $2,000,000 in the aggregate. To each Grantor’s knowledge as of
the date hereof, in the case of Equipment or Inventory described in clause (ii)
above, no lessor or warehouseman of any premises or warehouse upon or in which such
Equipment or Inventory is located has (A) issued any warehouse receipt or other receipt in
the nature of a warehouse receipt in respect of any such Equipment or Inventory, (B) issued
any Document for any such Equipment or Inventory, (C) received notification of any Secured
Party’s interest (other than the security interest granted hereunder) in any such Equipment
or Inventory or (D) received notification of any Lien on any such Equipment or Inventory
(other than Permitted Liens).



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     (b) Each Grantor is the sole entitlement holder of its Accounts and no other Person
(other than the Collateral Agent pursuant to this Security Agreement or any other Person
with respect to Permitted Liens) has control or possession of, or any other interest in, any
of its Accounts or any other securities or property credited thereto.



     SECTION 3.5. Negotiable Documents, Instruments and Chattel Paper. Each Grantor has
delivered to the Collateral Agent possession of all originals of all Documents, Instruments,
Promissory Notes, and tangible Chattel Paper with an individual fair market value (as determined in
good faith by an Authorized Officer of the applicable Grantor) of at least $2,000,000 owned or held
by the Grantor on the Restatement Effective Date.



     SECTION 3.6. Intellectual Property Collateral.




     (a) In respect of the Intellectual Property Collateral as of the Restatement Effective
Date:




     (i) set forth in Item A of Schedule III hereto is a complete
and accurate list of all issued and applied-for U.S. Patents owned by the Grantors
and set forth in Item B of Schedule III hereto is a complete and
accurate list of all Patent Licenses;




     (ii) set forth in Item A of Schedule IV hereto is a complete
and accurate list all U.S. registered and applied-for U.S. Trademarks owned by the
Grantors, including those that are registered, or for which an application for
registration has been made, with the United States Patent and Trademark Office and
set forth in Item B of Schedule IV hereto is a complete and accurate
list all Trademark Licenses; and




     (iii) set forth in Item A of Schedule V hereto is a complete
and accurate list of all registered and applied-for U.S. Copyrights owned by the
Grantors, and set forth in Item B of Schedule V hereto is a complete
and accurate list of all Copyright Licenses and a complete and accurate list of all
Copyright Licenses that are exclusive licenses granted to the Grantors in respect of
any Copyright that is registered with the United States Copyright Office.




     (b) Except as disclosed on Schedules III through V, in respect of each
Grantor:




     (i) the Owned Intellectual Property Collateral is valid, subsisting, unexpired
and enforceable (except, in any case, as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors’ rights generally and by principles of equity) and has not been abandoned
or adjudged invalid or unenforceable (except, in any case, as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors’ rights generally and by principles of equity), in whole or in
part, except where the loss or expiration of such Owned Intellectual Property
Collateral would not be expected to have a Material Adverse Effect;



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     (ii) such Grantor is the sole and exclusive owner of the entire and
unencumbered right, title and interest in and to the Owned Intellectual Property
Collateral (except for the Permitted Liens) and no written claim which has a
reasonable likelihood of an adverse determination and if adversely determined
against any Grantor would reasonably be expected to have a Material Adverse Effect,
has been made that such Grantor is or may be, in conflict with, infringing,
misappropriating, diluting, misusing or otherwise violating any of the rights of any
third party or that challenges the ownership, use, protectability, registerability,
validity, enforceability of any Owned Intellectual Property Collateral or, to such
Grantor’s knowledge, any other Intellectual Property Collateral and, to such
Grantor’s knowledge neither such Grantor nor the Intellectual Property Collateral
conflict with, infringe, misappropriate or dilute or otherwise violate the rights of
any third party;




     (iii) such Grantor has made all necessary filings and recordations (in its
reasonable business judgment) to protect its interest in any Owned Intellectual
Property Collateral that is material to the operations or business of such Grantor,
including recordations of its interests in the United States Patents, the United
States registered Trademarks and applications thereof and the United States
registered Copyrights and applications thereof in the United States Patent and
Trademark Office and the United States Copyright Office, and has used proper
statutory notice, as applicable, in connection with its use of any Patent, Trademark
or Copyright;




     (iv) such Grantor has taken all commercially reasonable steps to safeguard its
Trade Secrets and to its knowledge (A) none of the Trade Secrets of such Grantor has
been used, divulged, disclosed or appropriated for the benefit of any other Person
other than such Grantor which could reasonably be expected to result in a Material
Adverse Effect; (B) no employee, independent contractor or agent of such Grantor has
misappropriated any Trade Secrets of any other Person in the course of the
performance of his or her duties as an employee, independent contractor or agent of
such Grantor which could reasonably be expected to result in a Material Adverse
Effect; and (C) no employee, independent contractor or agent of such Grantor is in
default or breach of any term of any employment agreement, non-disclosure agreement,
assignment of inventions agreement or similar agreement or contract relating in any
way to the protection, ownership, development, use or transfer of such Grantor’s
Intellectual Property Collateral, which could reasonably be expected to result in a
Material Adverse Effect;




     (v) no action by such Grantor is currently pending or threatened in writing
which asserts that any third party is infringing, misappropriating, diluting,
misusing or voiding any Owned Intellectual Property Collateral and, to such
Grantor’s knowledge, no third party is infringing upon, misappropriating, diluting,
misusing or voiding any Intellectual Property owned or used by such Grantor in any
material respect, in each case except as would not have a Material Adverse Effect;



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     (vi) no settlement or consents, covenants not to sue, nonassertion assurances,
or releases have been entered into by such Grantor or to which such Grantor is bound
that adversely affects its rights to own or use any material Intellectual Property
Collateral;




     (vii) except for the Permitted Liens, such Grantor has not made a previous
assignment, sale, transfer or agreement constituting a present or future assignment,
sale or transfer of any material Intellectual Property Collateral for purposes of
granting a security interest or as collateral that has not been terminated or
released or, subject to Section 4.5(g), will be terminated or released on the
Restatement Effective Date;




     (viii) such Grantor has executed and delivered to the Collateral Agent,
Intellectual Property Collateral security agreements for all United States
registered and applied for Copyrights, Patents and Trademarks owned by such Grantor
that constitute Collateral, including all Copyrights, Patents and Trademarks on
Schedules III, IV or V (as such schedules may be amended or
supplemented from time to time);




     (ix) such Grantor uses adequate standards of quality in the manufacture,
distribution, and sale of all products sold and in the provision of all services
rendered under or in connection with any Trademarks and has taken all commercially
reasonable action necessary to ensure that all licensees of any Trademarks owned by
such Grantor use such adequate standards of quality, in each case except as would
not have a Material Adverse Effect;




     (x) the consummation of the transactions contemplated by the Credit Agreement
and this Security Agreement will not result in the termination or material
impairment of any of the Intellectual Property Collateral necessary for the conduct
of such Grantor’s business;




     (xi) all employees, independent contractors and agents who have contributed to
the creation or development of any Owned Intellectual Property Collateral have been
a party to an enforceable assignment agreement with such Grantor in accordance with
applicable laws, according and granting exclusive ownership of such Owned
Intellectual Property Collateral to such Grantor, in each case except as could not
reasonably be expected to have a Material Adverse Effect; and




     (xii) such Grantor owns directly or is entitled to use by license or otherwise,
all Intellectual Property Collateral with respect to any of the foregoing reasonably
necessary for such Grantor’s business, in each case except as could not reasonably
be expected to have a Material Adverse Effect.



     SECTION 3.7. Validity, etc.




     (a) This Security Agreement creates a valid security interest in the Collateral
securing the payment of the Secured Obligations.



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     (b) Each Grantor has filed or caused to be filed all UCC-1 financing statements and has
amended or caused to be amended all UCC-1 financing statements previously filed in
connection with the Existing Credit Agreement, in each case listing the Collateral Agent as
“Secured Party”, in the filing office for each Grantor’s jurisdiction of organization listed
in Item A of Schedule II (collectively, the “Filing Statements”) (or
has authorized the Administrative Agent to file the Filing Statements suitable for timely
and proper filing in such offices) and has taken all other actions necessary to obtain
control of the Collateral (to the extent required herein or in the Credit Agreement) as
provided in Sections 9-104, 9-105, 9-106 and 9-107 of the UCC.




     (c) Upon the filing of the Filing Statements with the appropriate agencies therefor the
security interests created under this Security Agreement shall constitute a perfected
security interest in the Collateral described on such Filing Statements in favor of the
Collateral Agent on behalf of the Secured Parties to the extent that a security interest
therein may be perfected by filing pursuant to the relevant UCC, prior to all other Liens,
except for Permitted Liens.



     SECTION 3.8. Authorization, Approval, etc. Except as have been obtained or made and
are in full force and effect, no authorization, approval or other action by, and no notice to or
filing with, any Governmental Authority or any other third party is required either




     (a) for the grant by the Grantors of the security interest granted hereby or for the
execution, delivery and performance of this Security Agreement by the Grantors;




     (b) for the perfection or maintenance of the security interests hereunder including the
first priority (subject to Permitted Liens) nature of such security interest to the extent
each Grantor is required to perfect a security interest hereunder in such Collateral (except
with respect to the Filing Statements or, with respect to Owned Intellectual Property
Collateral, the recordation of any agreements with the United States Patent and Trademark
Office or the United States Copyright Office) or the exercise by the Collateral Agent of its
rights and remedies hereunder; or




     (c) for the exercise by the Collateral Agent of the voting or other rights provided for
in this Security Agreement, or, except (i) with respect to any securities issued by a
Subsidiary of the Grantors, as may be required in connection with a disposition of such
securities by laws affecting the offering and sale of securities generally, the remedies in
respect of the Collateral pursuant to this Security Agreement, (ii) any “change of control”
or similar filings required by state licensing agencies and (iii) with respect to any
interest in a limited liability company, as may be required to become a member and/or vote
such interest.



     SECTION 3.9. Best Interests. It is in the best interests of each Grantor (other than
the Borrower) to execute this Security Agreement inasmuch as such Grantor will, as a result of
being a Subsidiary of the Borrower, derive substantial direct and indirect benefits from the Credit
Extensions made from time to time to the Borrower by the Lenders and the Issuer pursuant to the
Credit Agreement, and each Grantor acknowledges that the Secured Parties are relying on this



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representation in agreeing to make such Credit Extensions pursuant to the Credit Agreement to
the Borrower.




ARTICLE IV

COVENANTS




     Each Grantor covenants and agrees that, until the Termination Date, such Grantor will perform,
comply with and be bound by the obligations set forth below.



     SECTION 4.1. As to Investment Property, etc.



     SECTION 4.1.1. Capital Securities of Subsidiaries. No Grantor will allow any of its
U.S. Subsidiaries:




     (a) that is a corporation, business trust, joint stock company or similar Person, after
the date hereof to issue Uncertificated Securities;




     (b) that is a partnership or limited liability company, to (i) issue Capital Securities
that are to be dealt in or traded on securities exchanges or in securities markets, (ii) expressly provide in its Organic Documents that its Capital Securities are
securities governed by Article 8 of the UCC unless such Capital Securities have been
delivered to the Collateral Agent on the Restatement Effective Date or, to the extent such
Organic Documents are modified to provide that such Capital Securities are securities
governed by Article 8 of the UCC such Capital Securities, together with duly executed
undated blank instruments of transfer reasonably acceptable to the Collateral Agent, are
delivered to the Collateral Agent on or prior to the date of such modification, or
(iii) place such Subsidiary’s Capital Securities in a Securities Account unless such
Securities Account is subject to a Control Agreement; and




     (c) to issue Capital Securities in addition to or in substitution for the Capital
Securities pledged hereunder, except to such Grantor (and such Capital Securities are
immediately pledged and delivered to the Collateral Agent pursuant to the terms of this
Security Agreement).



     SECTION 4.1.2. Investment Property (other than Certificated Securities).




     (a) Other than Excluded Accounts, with respect to any Deposit Accounts, Securities
Accounts, Commodity Accounts, Commodity Contracts or Security Entitlements constituting
Investment Property owned or held by any Grantor with an intermediary who is not a Secured
Party, such Grantor will, upon notice from the Collateral Agent (at the request of the
Required Lenders) following the occurrence and during the continuance of an Event of
Default, take commercially reasonable efforts to cause the intermediary maintaining such
Investment Property to execute a Control Agreement relating to such Investment Property
pursuant to which such intermediary agrees to comply with the Collateral Agent’s
instructions with respect to such Investment Property upon the Collateral Agent’s notice of
sole control following the occurrence and



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during the continuance of an Event of Default; provided that the Administrative
Agent agrees to instruct the Collateral Agent to promptly rescind such notice upon the cure
or waiver of all Events of Default.




     (b) With respect to any Uncertificated Securities (other than Uncertificated Securities
credited to a Securities Account and any Capital Securities in a Foreign Subsidiary which
are uncertificated) constituting Investment Property owned or held by any Grantor, at the
request of the Aministrative Agent, such Grantor will take commercially reasonable efforts
to cause the issuer of such securities to either (i) register the Collateral Agent as the
registered owner thereof on the books and records of the issuer or (ii) execute a Control
Agreement relating to such Investment Property pursuant to which the issuer agrees to comply
with the Collateral Agent’s instructions with respect to such Uncertificated Securities upon
notice of sole control following the occurrence and during the continuance of an Event of
Default; provided that the Administrative Agent agrees to instruct the Collateral
Agent to promptly rescind such notice upon the cure or waiver of all Events of Default.



     SECTION 4.1.3. Certificated Securities (Stock Powers). Subject to Section 7.1.11 of
the Credit Agreement and applicable local law regarding the retention of certificates representing
Equity Interests in the appropriate jurisdiction, each Grantor agrees that all Certificated
Securities, including the Capital Securities delivered by such Grantor pursuant to this Security
Agreement, will be accompanied by duly executed undated blank stock powers, or other equivalent
instruments of transfer reasonably acceptable to the Collateral Agent.



     SECTION 4.1.4. Continuous Pledge. Subject to Section 7.1.11 of the Credit Agreement
and applicable local law regarding the retention of certificates representing Equity Interests in
the appropriate jurisdiction, each Grantor will (subject to the terms of the Credit Agreement and
the requirements hereunder) deliver to the Collateral Agent and at all times keep pledged to the
Collateral Agent pursuant hereto, on a first-priority, perfected basis (subject to Permitted Liens)
in accordance with all applicable U.S. laws, all Investment Property, all Dividends and
Distributions with respect thereto, all Payment Intangibles to the extent they are evidenced by a
Document, Instrument, Promissory Note or Chattel Paper, and all interest and principal with respect
to such Payment Intangibles, and all Proceeds and rights from time to time received by or
distributable to such Grantor in respect of any of the foregoing, in each case to the extent such
asset constitutes Collateral. Each Grantor agrees that it will, promptly following receipt
thereof, deliver to the Collateral Agent possession of all originals of negotiable Documents,
Instruments, Promissory Notes and Chattel Paper that it acquires following the Restatement
Effective Date to the extent otherwise required hereunder.



     SECTION 4.1.5. Voting Rights; Dividends, etc. Each Grantor agrees promptly upon
receipt of notice from the Administrative Agent of the Administrative Agent’s or Collateral Agent’s
intent to seek remedies under this Section 4.1.5 after the occurrence and continuance of a
Specified Default:




     (a) so long as such Specified Default shall continue, to deliver (properly endorsed
where required hereby or requested by the Administrative Agent) to the Collateral Agent all
Dividends and Distributions with respect to Investment Property



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constituting Collateral, all interest, principal, other cash payments on Payment
Intangibles, and all Proceeds of the Collateral, in each case thereafter received by such
Grantor, all of which shall be held by the Collateral Agent as additional Collateral; and




     (b) with respect to Collateral consisting of general partner interests or limited
liability company interests, upon the occurrence and continuance of a Specified Default and
so long as the Collateral Agent has notified such Grantor of the Collateral Agent’s
intention to exercise its voting power (pursuant to the written direction of the
Administrative Agent) under this clause,




     (i) that the Collateral Agent may exercise (to the exclusion of such Grantor)
the voting power and all other incidental rights of ownership with respect to any
Investment Property constituting Collateral and such Grantor hereby grants the
Collateral Agent an irrevocable proxy, exercisable under such circumstances, to vote
such Investment Property; and




     (ii) to promptly deliver to the Collateral Agent such additional proxies and
other documents as may be necessary to allow the Collateral Agent to exercise such
voting power.


All dividends, Distributions, interest, principal, cash payments, Payment Intangibles and Proceeds
that may at any time and from time to time be held by such Grantor, but which such Grantor is then
obligated to deliver to the Collateral Agent, shall, until delivery to the Collateral Agent, be
held by such Grantor separate and apart from its other property for the benefit of the Collateral
Agent. The Collateral Agent agrees that unless a Specified Default shall have occurred and be
continuing and the Collateral Agent shall have given the notice referred to in clause (b),
such Grantor will have the exclusive voting power with respect to any Investment Property
constituting Collateral and the Collateral Agent will, upon the written request of such Grantor,
promptly deliver such proxies and other documents, if any, as shall be reasonably requested by such
Grantor which are necessary to allow such Grantor to exercise that voting power; provided
that no vote shall be cast, or consent, waiver, or ratification given, or action taken by such
Grantor that would impair any such Collateral (except to the extent expressly permitted by the
Credit Agreement) or be inconsistent with or violate any provision of any Loan Document. After any
and all Events of Default have been cured or waived, (i) each Grantor shall have the right to
exercise the voting, managerial and other consensual rights and powers that it would otherwise be
entitled to pursuant to this Section 4.1.5 and receive the payments, proceeds, dividends,
distributions, monies, compensation, property, assets, instruments or rights which it would be
authorized to receive and retain pursuant to this Section 4.1.5 and (ii) within ten
Business Days after notice of such cure or waiver, the Collateral Agent shall repay and deliver to
each Grantor all cash and monies that such Grantor is entitled to retain pursuant to this
Section 4.1.5 which was not applied in repayment of the Secured Obligations.




     SECTION 4.2. Change of Name, etc. No Grantor will change its legal name, place of
incorporation or organization, federal taxpayer identification number or organizational
identification number except upon 15 days’ prior written notice to the Collateral Agent.



     SECTION 4.3. As to Accounts.




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     (a) Each Grantor shall have the right to collect all Accounts so long as (i) no
Specified Default shall have occurred and be continuing and (ii) notice pursuant to
clause (b) has not been delivered.




     (b) Upon (i) the occurrence and continuance of a Specified Default and (ii) the
delivery of notice by the Collateral Agent to each Grantor, all Proceeds of Collateral
received by such Grantor shall be delivered in kind to the Collateral Agent for deposit in a
Deposit Account of such Grantor maintained with the Collateral Agent (together with any
other Accounts pursuant to which any portion of the Collateral is deposited with the
Collateral Agent, the “Collateral Accounts”), and such Grantor shall not commingle
any such Proceeds, and shall hold separate and apart from all other property, all such
Proceeds for the benefit of the Collateral Agent until delivery thereof is made to the
Collateral Agent.




     (c) Following the delivery of notice pursuant to clause (b)(ii), the Collateral
Agent shall apply any amount in the Collateral Account in accordance with Section 4.7 of the
Credit Agreement.




     (d) With respect to each of the Collateral Accounts, it is hereby confirmed and agreed
that (i) deposits in such Collateral Account are subject to a security interest as
contemplated hereby, (ii) such Collateral Account shall be under the control of the
Collateral Agent and (iii) the Collateral Agent shall have the sole right of withdrawal over
such Collateral Account.



     SECTION 4.4. As to Grantors Use of Collateral.




     (a) Subject to clause (b), each Grantor (i) may in the ordinary course of its
business, at its own expense, subject to Section 7.2.11 of the Credit Agreement, dispose of
and use any Collateral, (ii) subject to the applicable terms of the Credit Agreement, will,
at its own expense, endeavor to collect, as and when due, all amounts due with respect to
any of the Collateral, including the taking of such action with respect to such collection
as the Collateral Agent may reasonably request following the occurrence and continuance of a
Specified Default or, in the absence of such request, as such Grantor may deem advisable,
and (iii) may grant, in the ordinary course of business, to any party obligated on any of
the Collateral, any rebate, refund, set off or allowance to which such party may be lawfully
entitled or which may lawfully be allowed by such Grantor.




     (b) At any time following the occurrence and during the continuance of a Specified
Default, whether before or after the maturity of any of the Secured Obligations, the
Collateral Agent may, acting at the direction of the Required Lenders, (i) revoke any or all
of the rights of each Grantor set forth in clause (a), (ii) with two Business Days
prior notice to the applicable Grantor, notify any parties obligated on any of the
Collateral to make payment to the Collateral Agent of any amounts due or to become due
thereunder and (iii) with two Business Days prior notice to the applicable Grantor, enforce
collection of any of the Collateral by suit or otherwise and surrender, release, or exchange
all or any part thereof, or compromise or extend or renew for any period



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(whether or not longer than the original period) any indebtedness thereunder or
evidenced thereby.




     (c) Upon the reasonable request of the Administrative Agent following the occurrence
and during the continuance of a Specified Default, each Grantor will, at its own expense,
promptly notify any parties obligated on any of the Collateral to make payment to the
Collateral Agent of any amounts due or to become due thereunder.




     (d) At any time following the occurrence and during the continuation of a Specified
Default, the Collateral Agent may endorse, in the name of such Grantor, any item, howsoever
received by the Collateral Agent, representing any payment on or other Proceeds of any of
the Collateral.



     SECTION 4.5. As to Intellectual Property Collateral. Each Grantor covenants and
agrees to comply with the following provisions as such provisions relate to any Intellectual
Property Collateral (except for the tangible components of the Computer Hardware and Software
Collateral) material to the operations or business of such Grantor:




     (a) such Grantor will not, and will not knowingly permit any third party or licensee
to, (i) do or permit any act or knowingly omit to do any act whereby any of the Patent
Collateral may lapse or become abandoned or dedicated to the public or unenforceable except
upon expiration of the end of an unrenewable term of a registration thereof or as otherwise
permitted by the Credit Agreement, (ii) fail to maintain as in the past the quality of
products and services offered under the Trademark Collateral, (iii) fail to employ the
Trademark Collateral registered with any federal or state or foreign authority with an
appropriate notice of such registration, (iv) do or permit any act or knowingly omit to do
any act whereby any of the Trademark Collateral may lapse or become invalid or
unenforceable, or (v) do or permit any act or knowingly omit to do any act whereby any of
the Copyright Collateral or any of the Trade Secrets Collateral may lapse or become invalid
or unenforceable or placed in the public domain except upon expiration of the end of an
unrenewable term of a registration thereof, unless, in the case of any of the foregoing
requirements in clauses (i) through (v), (x) such Grantor shall reasonably
and in good faith determine that any of such Intellectual Property Collateral is of
negligible economic value to such Grantor or (y) the loss of such Intellectual Property
Collateral would not have a Material Adverse Effect;




     (b) such Grantor shall not permit any third party or licensee to adopt or use any other
Trademark which is confusingly similar or a colorable imitation of any of the Trademark
Collateral unless, (x) such Grantor shall reasonably and in good faith determine that any of
such Intellectual Property Collateral is of negligible economic value to such Grantor or (y)
the loss of such Intellectual Property Collateral would not have a Material Adverse Effect;




     (c) unless otherwise permitted by the Credit Agreement, such Grantor shall promptly
notify the Collateral Agent if it knows that any application or registration relating to any
material item of the Intellectual Property Collateral (except for the tangible components of
the Computer Hardware and Software Collateral) has a



21








 






reasonable likelihood of becoming abandoned or dedicated to the public or placed in the
public domain or invalid or unenforceable, or of any adverse determination (including the
institution of, or any such determination or development in, any proceeding in the United
States Patent and Trademark Office, the United States Copyright Office) regarding such
Grantor’s ownership of any Intellectual Property Collateral, its right to register the same
or to keep and maintain and enforce the same;




     (d) concurrently with the delivery of a Compliance Certificate pursuant to clause (c)
of Section 7.1.1 of the Credit Agreement, each Grantor that has, since the date the
Compliance Certificate was last delivered, (i) filed an application for the registration of
any Patent or Trademark with the United States Patent and Trademark Office or (ii) received,
as owner or exclusive licensee, a Copyright registration with the United States Copyright,
in each case to the extent such Intellectual Property constitutes Collateral, shall inform
the Administrative Agent, and upon request of the Administrative Agent, promptly execute and
deliver an Intellectual Property Security Agreement substantially in the form set forth as
Exhibits A, B and C hereto and other documents as the Administrative
Agent may reasonably request to evidence the Collateral Agent’s security interest in such
Intellectual Property Collateral;




     (e) such Grantor will take all commercially reasonable steps, including in any
proceeding before the United States Patent and Trademark Office the United States Copyright
Office, to maintain and pursue any application (and to obtain the relevant registration)
filed with respect to, and to maintain any registration of, the Owned Intellectual Property
Collateral, including the filing of applications for renewal, affidavits of use, affidavits
of incontestability and opposition, interference and cancellation proceedings and the
payment of fees and taxes (except to the extent that dedication, abandonment or invalidation
is permitted under the Credit Agreement or under the foregoing clause (a) or
(b)); and




     (f) concurrently with the delivery of a Compliance Certificate pursuant to clause (c)
of Section 7.1.1 of the Credit Agreement, each Grantor that has obtained, since the date the
Compliance Certificate was last delivered, an ownership interest in any United States
registered or applied for Patent, Copyright or Trademark, in each case to the extent such
Intellectual Property constitutes Collateral, shall execute and deliver to the Collateral
Agent a Patent Security Agreement, Copyright Security Agreement or a Trademark Security
Agreement in the form of Exhibit A, Exhibit B or Exhibit C, as
applicable, and in each case such Grantor shall execute and deliver to the Collateral Agent
any other document required to acknowledge or register, record or perfect the Collateral
Agent’s security interest in any part of such item of Intellectual Property unless such
Grantor shall otherwise determine in good faith using its commercially reasonable business
judgment that any such Intellectual Property is not material.




     (g) within 60 days from the Restatement Effective Date (or such later date as shall be
acceptable to the Collateral Agent in its sole discretion), each Grantor agrees to use
commercially reasonable efforts to file all appropriate and necessary documents with the
United States Patent and Trademark Office and the United States Copyright Office required to
evidence that the Trademarks, Patents and Copyrights listed on Schedules III,



22








 






IV and V hereto are free and clear of any security interest (other than any security
interest created under this Agreement) recorded in such offices in respect of such
Trademarks, Patents and Copyrights.



     SECTION 4.6. As to Letter-of-Credit Rights.




     (a) Each Grantor, by granting a security interest in its Letter-of-Credit Rights to the
Collateral Agent, intends to (and hereby does) collaterally assign to the Collateral Agent
its rights (including its contingent rights ) to the Proceeds of all individual
Letter-of-Credit Rights in excess of $2,000,000 of which it is or hereafter becomes a
beneficiary or assignee. Such Grantor will promptly use its commercially reasonable efforts
to cause the issuer of each such Letter of Credit and each nominated person (if any) with
respect thereto to consent to such assignment of the Proceeds thereof in a consent agreement
in form and substance reasonably satisfactory to the Collateral Agent and deliver written
evidence of such consent to the Collateral Agent.




     (b) Upon the occurrence and during the continuance of a Specified Default, such Grantor
will, promptly upon request by the Administrative Agent, (i) notify (and such Grantor hereby
authorizes the Administrative Agent to notify) the issuer and each nominated person with
respect to each of the Letters of Credit that the Proceeds thereof have been assigned to the
Collateral Agent hereunder and any payments due or to become due in respect thereof are to
be made directly to the Collateral Agent and (ii) use commercially reasonable effort to
arrange for the Collateral Agent to become the transferee beneficiary Letter of Credit.



     SECTION 4.7. As to Commercial Tort Claims. Each Grantor covenants and agrees that,
until the occurrence of the Termination Date, with respect to any Commercial Tort Claim in excess
of $2,000,000 individually hereafter arising, it shall promptly deliver to the Collateral Agent a
revised Item H of Schedule II identifying such new Commercial Tort Claims.



     SECTION 4.8. Electronic Chattel Paper and Transferable Records. If any Grantor at any
time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as
that term is defined in Section 201 of the U.S. Federal Electronic Signatures in Global and
National Commerce Act, or in Section 16 of the U.S. Uniform Electronic Transactions Act as in
effect in any relevant jurisdiction, with a value in excess of $2,000,000, such Grantor shall
promptly notify the Administrative Agent thereof and, at the reasonable request of the
Administrative Agent, shall take such action as the Administrative Agent may request to vest in the
Collateral Agent control under Section 9-105 of the UCC of such electronic chattel paper or control
under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as
the case may be, Section 16 of the Uniform Electronic Transactions Act, as so in effect in such
jurisdiction, of such transferable record. The Collateral Agent agrees with such Grantor that the
Collateral Agent will allow, pursuant to procedures reasonably satisfactory to the Collateral Agent
and so long as such procedures will not result in the Collateral Agent’s loss of control, the
Grantor to make alterations to the electronic chattel paper or transferable record permitted under
Section 9-105 of the UCC or, as the case may be, Section 201 of the U.S. Federal Electronic
Signatures in Global and National Commerce Act or Section 16 of the U.S. Uniform Electronic
Transactions Act for a party in control to allow without loss of control,



23








 




unless an Event of Default has occurred and is continuing or would occur after taking into
account any action by such Grantor with respect to such electronic chattel paper or transferable
record.




     SECTION 4.9. Further Assurances, etc. Each Grantor agrees that, from time to time at
its own expense, it will promptly execute and deliver all further instruments and documents, and
take all further action, that is necessary, in order to perfect, preserve and protect any security
interest granted or purported to be granted hereby or to enable the Collateral Agent to exercise
and enforce its rights and remedies hereunder with respect to any Collateral, except that with
respect to Patents, Trademarks and Copyrights, such obligations are limited to the United States.
Without limiting the generality of the foregoing, such Grantor will




     (a) from time to time upon the reasonable request of the Administrative Agent or the
Collateral Agent, (i) promptly deliver to the Collateral Agent such stock powers,
instruments and similar documents, reasonably satisfactory in form and substance to the
Administrative Agent, with respect to such Collateral as the Administrative Agent may
request and (ii) after the occurrence and during the continuance of any Specified Default,
transfer any securities constituting Collateral into the name of any nominee designated by
the Collateral Agent; if any Collateral shall be evidenced by an Instrument, negotiable
Document, Promissory Note or tangible Chattel Paper and such Collateral, individually, has a
fair market value (as determined in good faith by an Authorized Officer of the applicable
Grantor) in excess of $2,000,000, promptly deliver and pledge to the Collateral Agent
hereunder such Instrument, negotiable Document, Promissory Note or tangible Chattel Paper
duly endorsed and accompanied by duly executed instruments of transfer or assignment, all in
form and substance reasonably satisfactory to the Collateral Agent;




     (b) file (and hereby authorize the Administrative Agent to file) such Filing Statements
or continuation statements, or amendments thereto, and such other instruments or notices
(including any assignment of claim form under or pursuant to the federal assignment of
claims statute, 31 U.S.C. § 3726, any successor or amended version thereof or any regulation
promulgated under or pursuant to any version thereof), as shall be necessary that the
Administrative Agent may reasonably request in order to perfect and preserve the security
interests and other rights granted or purported to be granted to the Collateral Agent
hereby;




     (c) promptly deliver to the Collateral Agent and, subject to the terms of the Credit
Agreement and the requirements hereunder, at all times keep pledged to the Collateral Agent
pursuant hereto, on a first-priority, perfected basis (subject to Permitted Liens), at the
request of the Administrative Agent, all Investment Property constituting Collateral, all
Dividends and Distributions with respect thereto, and all interest and principal with
respect to Promissory Notes, and all Proceeds and rights from time to time received by or
distributable to such Grantor in respect of any of the foregoing Collateral;




     (d) not take or omit to take any action the taking or the omission of which would
result in any impairment or alteration of any obligation of the maker of any



24








 






Payment Intangible or other Instrument constituting Collateral, except as provided in
Section 4.4 or in the Credit Agreement;




     (e) upon the reasonable request of the Administrative Agent, place a legend reasonably
acceptable to the Administrative Agent indicating that the Collateral Agent has a security
interest in any tangible Chattel Paper;




     (f) furnish to the Collateral Agent, from time to time at the Administrative Agent’s
reasonable request, statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as the Administrative
Agent may reasonably request, all in reasonable detail; and




     (g) comply with the reasonable requests of the Collateral Agent and the Administrative
Agent in accordance with this Security Agreement in order to enable the Collateral Agent to
have and maintain control over the Collateral consisting of Investment Property, Deposit
Accounts, Letter-of-Credit-Rights and Electronic Chattel Paper to the extent required
herein.



     With respect to the foregoing and the grant of the security interest hereunder, each Grantor
hereby authorizes the Administrative Agent or Collateral Agent to file one or more financing or
continuation statements, and amendments thereto, relative to all or any part of the Collateral; and
to make all relevant filings with the United States Patent and Trademark Office and the United
States Copyright Office in respect of the Intellectual Property Collateral, in each case naming the
Collateral Agent as “Secured Party” (or other similar term). Each Grantor agrees that a carbon,
photographic or other reproduction of this Security Agreement or any UCC financing statement
covering the Collateral or any part thereof shall be sufficient as a UCC financing statement where
permitted by law. Each Grantor hereby authorizes the Administrative Agent to file financing
statements describing as the collateral covered thereby “all of the debtor’s personal property or
assets”, “all assets”, “all personal property” or words to that effect, notwithstanding that such
wording may be broader in scope than the Collateral described in this Security Agreement.



     SECTION 4.10. Deposit Accounts. Promptly following the occurrence and during the
continuance of a Specified Default, at the request of the Collateral Agent (at the direction of the
Administrative Agent), such Grantor will maintain all of its Deposit Accounts only with the
Collateral Agent or with any depositary institution that has entered into a Control Agreement in
favor of the Collateral Agent. Such Control Agreements shall permit the Collateral Agent (at the
written instructions of the Administrative Agent) to deliver a notice of sole exclusive control
during the continuance of an Event of Default. To the extent the Collateral Agent (at the written
instructions of the Administrative Agent) has delivered a notice of sole control with respect to
any such Deposit Accounts pursuant to a Control Agreement, the Administrative Agent agrees promptly
to notify (no later than 2 Business Days) all such depository banks that the notice of exclusive
control has been rescinded and the applicable Grantor shall have the right to withdraw funds from
such Deposit Account(s) following the cure or waiver of all Specified Defaults.




25











 





ARTICLE V

THE COLLATERAL AGENT




     SECTION 5.1. Collateral Agent Appointed Attorney-in-Fact. Until the
Termination Date, each Grantor hereby irrevocably appoints the Collateral Agent as its
attorney-in-fact, with full authority in the place and stead of such Grantor and in the name of
such Grantor or otherwise, from time to time as directed by the Administrative Agent, following the
occurrence and during the continuance of a Specified Default, to take any action and to execute any
instrument which is necessary to accomplish the purposes of this Security Agreement, including:




     (a) with two Business Days prior notice to the applicable Grantor, to ask,
demand, collect, sue for, recover, compromise, receive and give acquittance and receipts for
moneys due and to become due under or in respect of any of the Collateral;




     (b) to receive, endorse, and collect any drafts or other Instruments,
Documents and Chattel Paper, in connection with clause (a) above;




     (c) to file any claims or take any action or institute any proceedings which
the Administrative Agent may deem necessary or desirable for the collection of any of the
Collateral or otherwise to enforce the rights of the Collateral Agent with respect to any of
the Collateral; and




     (d) to perform the affirmative obligations of such Grantor hereunder.


Each Grantor hereby acknowledges, consents and agrees that the power of attorney granted pursuant
to this Section is irrevocable and coupled with an interest.




     SECTION 5.2. Collateral Agent May Perform. If any Grantor fails to perform
any agreement contained herein and the Administrative Agent provides prior notice to such Grantor
of such failure, within three days of such notice, the Grantor shall perform, cause to be performed
or agree to perform (and thereafter actually perform within seven days after such notice) such
agreement, the Collateral Agent may (but shall have not obligation to) itself perform, or cause
performance of, such agreement, and the expenses of the Collateral Agent incurred in connection
therewith shall be payable by such Grantor pursuant to Section 10.3 of the Credit Agreement.



     SECTION 5.3. Collateral Agent Has No Duty. The powers conferred on the
Collateral Agent hereunder are solely to protect its interest (on behalf of the Secured Parties) in
the Collateral and shall not impose any duty on it to exercise any such powers. Except for
reasonable care of any Collateral in its possession, the accounting for moneys actually received by
it hereunder and, except to the extent of the gross negligence, bad faith or willful misconduct of
the Collateral Agent or any of its respective officers, directors, employees or agents, the
Collateral Agent shall have no duty as to any Collateral or responsibility for




     (a) ascertaining or taking action with respect to calls, conversions,
exchanges, maturities, tenders or other matters relative to any Investment Property, whether
or not the Collateral Agent has or is deemed to have knowledge of such matters, or



26









 






     (b) taking any necessary steps to preserve rights against prior parties or
any other rights pertaining to any Collateral.



     SECTION 5.4. Reasonable Care. The Collateral Agent is required to exercise
reasonable care in the custody and preservation of any of the Collateral in its possession;
provided that the Collateral Agent shall be
deemed to have exercised reasonable care in the custody and preservation of any of the
Collateral, if (i) such Collateral is accorded treatment substantially equal to that which the
Collateral Agent accords its own property or (ii) it takes such action for that purpose as each
Grantor reasonably requests in writing at times other than upon the occurrence and during the
continuance of any Specified Default, but failure of the Collateral Agent to comply with any such
request at any time shall not in itself be deemed a failure to exercise reasonable care.



     SECTION 5.5. Liability.




     (a) No provision of this Security Agreement shall require the Collateral
Agent to expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its rights or
powers and the Collateral Agent shall not be liable or responsible for any loss or
diminution in the value of any of the Collateral.




     (b) In no event shall the Collateral Agent be responsible or liable for
special, indirect, or consequential loss or damage of any kind whatsoever (including, but
not limited to, loss of profit) irrespective of whether the Collateral Agent has been
advised of the likelihood of such loss or damage and regardless of the form of action.



     SECTION 5.6. Force Majeure. In no event shall the Collateral Agent be
responsible or liable for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control, including, without
limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military
disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software and hardware) services; it being
understood that the Collateral Agent shall use reasonable efforts which are consistent with
accepted practices in the banking industry to resume performance as soon as practicable under the
circumstances.



ARTICLE VI

REMEDIES




     SECTION 6.1. Certain Remedies. If any Specified Default shall have occurred
and be continuing and the Administrative Agent shall have given written notice to the relevant
Grantor of the Collateral Agent’s intent to exercise its corresponding rights pursuant to this
Section:




     (a) The Collateral Agent may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise available to it, all
the rights and remedies of a Secured Party on default under the UCC (whether or not the UCC
applies to the affected Collateral) and also may to the extent permitted by applicable law:



27









 






     (i) take possession of any Collateral not already in its possession
without demand and without legal process;




     (ii) require each Grantor to, and each Grantor hereby agrees that it
will, at its expense and upon request of the Collateral Agent forthwith, assemble
all or part of the Collateral as directed by the Collateral Agent and make it
available to the Collateral Agent at a place to be designated by the Collateral
Agent that is reasonably convenient to both parties;




     (iii) enter onto the property where any Collateral is located and
take possession thereof without demand and without legal process; and




     (iv) without notice except as specified below and to the extent
permitted by applicable law, lease, or license, sell or otherwise dispose of the
Collateral or any part thereof in one or more parcels at public or private sale, at
any of the Collateral Agent’s offices or elsewhere,
for cash, on credit or for future delivery, and upon such other terms as the
Collateral Agent may deem commercially reasonable. Each Grantor agrees that, to the
extent notice of sale shall be required by law, at least ten days’ prior notice to
such Grantor of the time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable notification. The Collateral
Agent shall not be obligated to make any sale of Collateral regardless of notice of
sale having been given. The Collateral Agent may adjourn any public or private sale
from time to time by announcement at the time and place fixed therefor, and such
sale may, without further notice, be made at the time and place to which it was so
adjourned.




     (b) All cash Proceeds received by the Collateral Agent in respect of any sale
of, collection from, or other realization upon, all or any part of the Collateral shall be
applied by the Collateral Agent in accordance with Section 4.7 of the Credit Agreement.




     (c) The Collateral Agent may




     (i) transfer all or any part of the Collateral into the name of the
Collateral Agent or its nominee, with or without disclosing that such Collateral is
subject to the Lien hereunder;




     (ii) with two Business Days prior notice to the applicable Grantor,
notify the parties obligated on any of the Collateral to make payment to the
Collateral Agent of any amount due or to become due thereunder;




     (iii) withdraw, or cause or direct the withdrawal, of all funds with
respect to the Collateral Account to repay the Secured Obligations or otherwise
apply such funds in accordance with Section 4.7 of the Credit Agreement;




     (iv) enforce collection of any of the Collateral by suit or
otherwise, and surrender, release or exchange all or any part thereof, or compromise
or extend or



28









 







renew for any period (whether or not longer than the original period)
any obligations of any nature of any party with respect thereto;




     (v) endorse any checks, drafts, or other writings in any Grantor’s
name to allow collection of the Collateral;




     (vi) take control of any Proceeds of the Collateral; and




     (vii) execute (in the name, place and stead of any Grantor)
endorsements, assignments, stock powers and other instruments of conveyance or
transfer with respect to all or any of the Collateral;




     (d) Without limiting the foregoing, in respect of the Intellectual Property
Collateral:




     (i) upon the request of the Administrative Agent, such Grantor shall
execute and deliver to the Collateral Agent an assignment or assignments of the
Intellectual Property Collateral, subject (in the case of any licenses thereunder)
to any valid and enforceable requirements to obtain consents from any third parties,
and such other documents as are necessary or appropriate to carry out the intent and
purposes hereof;




     (ii) the Administrative Agent shall have the right, in its sole
discretion, (which right shall take precedence over any right or action of any
Grantor) to file applications and maintain registrations for the protection of the
Intellectual Property Collateral and/or bring suit in the name of such Grantor, the
Collateral Agent or any Secured Party to enforce the Intellectual Property
Collateral and any licenses thereunder and, upon the request of the Administrative
Agent, such
Grantor shall use all commercially reasonable efforts to assist with such
filing or enforcement (including the execution of relevant documents); and




     (iii) in the event that the Collateral Agent elects not to make any
filing or bring any suit as set forth in clause (ii), such Grantor shall, upon the
request of Collateral Agent, use all commercially reasonable efforts, whether
through making appropriate filings or bringing suit or otherwise, to protect,
enforce and prevent the infringement, misappropriation, dilution, unauthorized use
or other violation of the Intellectual Property Collateral.



     Notwithstanding the foregoing provisions of this Section 6.1, for the purposes of this
Section 6.1, “Collateral” and “Intellectual Property Collateral” shall include any “intent
to use” trademark application only to the extent (i) that the business of such Grantor, or portion
thereof, to which that mark pertains is also included in the Collateral and (ii) that such business
is ongoing and existing.



     SECTION 6.2. Securities Laws. If the Collateral Agent, at the direction of
the Administrative Agent, shall determine to exercise its right to sell all or any of the
Collateral that are Capital Securities pursuant to Section 6.1, each Grantor agrees that,
upon request of the Administrative Agent, each Grantor will, at its own expense:



29









 






     (a) use commercially reasonable efforts to execute and deliver, and cause
(or, with respect to any issuer which is not a Subsidiary of such Grantor, use its
commercially reasonable efforts to cause) each issuer of the Collateral contemplated to be
sold and the directors and officers thereof to execute and deliver, all such instruments and
documents, and do or cause to be done all such other acts and things, as may be necessary
or, in the opinion of the Administrative Agent, advisable to register such Collateral under
the provisions of the Securities Act of 1933, as from time to time amended (the
“Securities Act”), and use commercially reasonable efforts to cause the registration
statement relating thereto to become effective and to remain effective for such period as
prospectuses are required by law to be furnished, and to make all amendments and supplements
thereto and to the related prospectus which, in the opinion of the Administrative Agent, are
necessary or advisable, all in conformity with the requirements of the Securities Act and
the rules and regulations of the SEC applicable thereto;




     (b) use its commercially reasonable efforts to exempt the Collateral under
the state securities or “Blue Sky” laws and to obtain all necessary governmental approvals
for the sale of the Collateral, as requested by the Administrative Agent;




     (c) cause (or, with respect to any issuer that is not a Subsidiary of such
Grantor, use its commercially reasonable efforts to cause) each such issuer to make
available to its security holders, as soon as practicable, an earnings statement that will
satisfy the provisions of Section 11(a) of the Securities Act; and




     (d) do or use commercially reasonable efforts to cause to be done all such
other acts and things as may be necessary to make such sale of the Collateral or any part
thereof valid and binding and in compliance with applicable law.


Each Grantor acknowledges the impossibility of ascertaining the amount of damages that would be
suffered by the Collateral Agent or the Secured Parties by reason of the failure by such Grantor to
perform any of the covenants contained in this Section and consequently agrees that, if such
Grantor shall fail to perform any of such covenants, it shall pay, as liquidated damages and not as
a penalty, an amount equal to the value (as determined by the Collateral Agent) of such Collateral
on the date the Collateral Agent shall demand compliance with this Section.




     SECTION 6.3. Compliance with Restrictions. Each Grantor agrees that in any
sale of any of the Collateral whenever a Specified Default shall have occurred and be continuing,
the Collateral Agent is hereby authorized to comply with any limitation or restriction in
connection with such sale as it may be advised by counsel is necessary in order to avoid any
violation of applicable law (including compliance with such procedures as may restrict the number
of prospective bidders and purchasers, require that such prospective bidders and purchasers have
certain qualifications, and restrict such prospective bidders and purchasers to Persons who
will represent and agree that they are purchasing for their own account for investment and not with
a view to the distribution or resale of such Collateral), or in order to obtain any required
approval of the sale or of the purchaser by any Governmental Authority or official, and such
Grantor further agrees that such compliance shall not result in such sale being considered or
deemed not to have been made in a commercially reasonable manner, nor shall the Collateral Agent be
liable



30









 




nor accountable to such Grantor for any discount allowed by the reason of the fact that such
Collateral is sold in compliance with any such limitation or restriction.




     SECTION 6.4. Protection of Collateral. The Collateral Agent may from time
to time, at the direction of the Administrative Agent, perform any act which any Grantor fails,
within three days following the request by the Collateral Agent, to perform or agree to perform
(and thereafter actually perform within seven days following notice of requested performance) (it
being understood that no such request need be given after the occurrence and during the continuance
of a Specified Default) and the Collateral Agent may from time to time take any other action which
the Administrative Agent deems necessary for the maintenance, preservation or protection of any of
the Collateral or of its security interest therein.



ARTICLE VII

MISCELLANEOUS PROVISIONS




     SECTION 7.1. Loan Document. This Security Agreement is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly indicated herein)
be construed, administered and applied in accordance with the terms and provisions thereof,
including Article X thereof.



     SECTION 7.2. Binding on Successors, Transferees and Assigns; Assignment.
This Security Agreement shall remain in full force and effect until the Termination Date has
occurred, shall be binding upon the Grantors and their successors, transferees and assigns and
shall inure to the benefit of and be enforceable by each Secured Party and its successors,
transferees and assigns; provided that no Grantor may (unless otherwise permitted under the
terms of the Credit Agreement or this Security Agreement) assign any of its obligations hereunder
without the prior written consent of all Lenders.



     SECTION 7.3. Amendments, etc. No amendment to or waiver of any provision of
this Security Agreement, nor consent to any departure by any Grantor from its obligations under
this Security Agreement, shall in any event be effective unless the same shall be in writing and
signed by the Collateral Agent (at the direction of the Administrative Agent) and the
Administrative Agent (on behalf of the Lenders or the Required Lenders, as the case may be,
pursuant to Section 10.1 of the Credit Agreement) and the Grantors and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose for which given.



     SECTION 7.4. Notices. All notices and other communications provided for
hereunder shall be in writing or by facsimile and addressed, delivered or transmitted to the
appropriate party at the address or facsimile number of such party specified in the Credit
Agreement or at such other address or facsimile number as may be designated by such party in a
notice to the other party. Any notice or other communication, if mailed and properly addressed
with postage prepaid or if properly addressed and sent by pre-paid courier service, shall be deemed
given when received; any such notice or other communication, if transmitted by facsimile, shall be
deemed given when transmitted and electronically confirmed.



31









 





     SECTION 7.5. Release of Liens. Upon (a) the Disposition of Collateral in
accordance with the Credit Agreement or (b) the occurrence of the Termination Date, the security
interests granted herein shall automatically terminate with respect to (i) such Collateral (in the
case of clause (a)) or (ii) all Collateral (in the case of clause (b)). Upon any
such Disposition or termination, the Collateral Agent will, at the Grantors’ sole expense, promptly
deliver to the Grantors, without any representations, warranties or recourse of any kind
whatsoever, all Collateral held by the Collateral Agent hereunder, and execute and deliver to the
Grantors such documents as the Grantors shall reasonably request to evidence such termination.



     SECTION 7.6. Additional Grantors. Upon the execution and delivery by any
other Person of a supplement in the form of Annex I hereto, such U.S. Person shall become a
“Grantor” hereunder with the same force and effect as if it were originally a party to this
Security Agreement and named as a “Grantor” hereunder. The execution and delivery of such
supplement shall not require the consent of any other Grantor hereunder (except to the extent
already obtained), and the rights and obligations of each Grantor hereunder shall remain in full
force and effect notwithstanding the addition of any new Grantor as a party to this Security
Agreement.



     SECTION 7.7. No Waiver; Remedies. In addition to, and not in limitation of
Section 2.4, no failure on the part of any Secured Party to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof or the exercise of
any other right. The remedies herein provided are cumulative and not exclusive of any remedies
provided by law.



     SECTION 7.8. Headings. The various headings of this Security Agreement are
inserted for convenience only and shall not affect the meaning or interpretation of this Security
Agreement or any provisions thereof.



     SECTION 7.9. Severability. Any provision of this Security Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such provision and such
jurisdiction, be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Security Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.



     SECTION 7.10. Governing Law, Entire Agreement, etc. THIS SECURITY AGREEMENT
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE
STATE OF NEW YORK), EXCEPT TO THE EXTENT THAT THE PERFECTION, EFFECT OF PERFECTION OR
NONPERFECTION, AND PRIORITY OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT
OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW
YORK. This Security Agreement and the other Loan Documents constitute the entire understanding
among the parties hereto with respect to the subject matter hereof and thereof and supersede any
prior agreements, written or oral, with respect thereto.



32









 





     SECTION 7.11. Counterparts. This Security Agreement may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an original and all of
which shall constitute together but one and the same agreement. Delivery of an executed
counterpart of a signature page to this Security Agreement by facsimile (or other electronic)
transmission shall be effective as delivery of a manually executed counterpart of this Security
Agreement.



     SECTION 7.12. Foreign Pledge Agreements. Without limiting any of the
rights, remedies, privileges or benefits provided hereunder to the Collateral Agent for its benefit
and the ratable benefit of the other Secured Parties, each Grantor and the Collateral Agent hereby
agree that the terms and provisions of this Security Agreement in respect of any Collateral subject
to the pledge or other Lien of a Foreign Pledge Agreement are, and shall be deemed to be,
supplemental and in addition to the rights, remedies, privileges and benefits provided to the
Collateral Agent and the other Secured Parties under such Foreign Pledge Agreement and under
applicable law to the extent consistent with applicable law; provided that, in the event
that the terms of this Security Agreement conflict or are inconsistent with the applicable Foreign
Pledge Agreement or applicable law governing such Foreign Pledge Agreement, (i) to the extent that
the provisions of such Foreign Pledge Agreement or applicable foreign law are, under applicable
foreign law, necessary for the creation, perfection or priority of the security interests in the
Collateral subject to such Foreign Pledge Agreement, the terms of such Foreign Pledge Agreement or
such applicable law shall be controlling and (ii) otherwise, the terms hereof shall be controlling.




33












 





     IN WITNESS WHEREOF, each of the parties hereto has caused this Security Agreement to be
duly executed and delivered by its Authorized Officer, solely in such capacity and not as an
individual, as of the date first above written.



	 	 	 	 	 
	 	HANESBRANDS INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	HBI BRANDED APPAREL LIMITED, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	HANESBRANDS DIRECT, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	UPEL, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CARIBETEX, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Pledge and Security Agreement]





 









 








	 	 	 	 	 
	 	SEAMLESS TEXTILES, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	BA INTERNATIONAL, L.L.C.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	HBI INTERNATIONAL, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	HBI BRANDED APPAREL ENTERPRISES, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CASA INTERNATIONAL, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	UPCR, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Pledge and Security Agreement]





 









 








	 	 	 	 	 
	 	HBI SOURCING, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CEIBENA DEL, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	HANESBRANDS DISTRIBUTION, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CARIBESOCK, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	HANES PUERTO RICO, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	PLAYTEX INDUSTRIES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Pledge and Security Agreement]





 









 








	 	 	 	 	 
	 	INNER SELF LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	PLAYTEX DORADO, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	HANES MENSWEAR, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	JASPER-COSTA RICA, L.L.C.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Pledge and Security Agreement]





 









 








	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,
     
as Administrative Agent and as Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Pledge and Security Agreement]





 












 





SCHEDULE I

to Security Agreement




Name of Grantor:




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Common Stock	 	 
	 	 	 	 	 	 	Authorized	 	Outstanding	 	 
	Issuer (corporate)	 	Cert. #	 	# of Shares	 	Shares	 	Shares	 	% of Shares Pledged
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 





	 	 	 	 	 
	 	 	Limited Liability Company Interests
	Issuer (limited	 	% of Limited Liability	 	Type of Limited Liability
	liability company)	 	Company Interests Pledged	 	Company Interests Pledged
	 
	 	 	 	 
	 
	 	 	 	 





	 	 	 	 	 
	 	 	Partnership Interests
	 	 	% of Partnership	 	% of Partnership
	Issuer (partnership)	 	Interests Owned	 	Interests Pledged
	 
	 	 	 	 
	 
	 	 	 	 





 









 






SCHEDULE II

to Security Agreement





			
	Item A.	 	Location of each Grantor.





	 	 	 
	Name
of Grantor:

	 	Location for purposes of UCC:
	 

	 	 
	[GRANTOR]
	 	 
	 
	 	 






			
	Item B.	 	Organizational identification number.





	 
	Name of Grantor:

	 

	 	 
	[GRANTOR]







			
	Item C.	 	Merger or other corporate reorganization.





	 	 	 
	Name of Grantor:

	 	Merger or other corporate reorganization:
	 

	 	 
	[GRANTOR]
	 	 






			
	Item D.	 	Taxpayer ID numbers.





	 	 	 
	Name of Grantor:

	 	Taxpayer ID numbers:
	 

	 	 
	[GRANTOR]
	 	 







 











 





Item E. Government Contracts.




	 	 	 
	Name of Grantor:

	 	Description of Contract:
	 

	 	 
	[GRANTOR]

	 	 






Item F. Deposit Accounts and Securities Accounts.




	 	 	 
	Name of Grantor:

	 	Description of Deposit Accounts and Securities Accounts:
	 

	 	 
	[GRANTOR]

	 	 






Item G. Letter of Credit Rights.




	 	 	 
	Name of Grantor:

	 	Description of Letter of Credit Rights:
	 

	 	 
	[GRANTOR]
	 	 






 









 






Item H. Commercial Tort Claims.




	 	 	 
	Name of Grantor:

	 	Description of Commercial Tort Claims:
	 

	 	 
	[GRANTOR]

	 	 






 









 






SCHEDULE III

to Security Agreement




Item A. Patents





	 	 	 	 	 
	Issued Patents 
	Patent No.	 	Issue Date	 	Title
	 

	 	 
	 	 






	 	 	 	 	 
	 
	Pending Patent Applications
	Serial No.	 	Filing Date	 	Title
	 

	 	 
	 	 





Item B. Patent Licenses




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Effective	 	Expiration
	Patent	 	Licensor	 	Licensee	 	Date	 	Date
	 

	 	 
	 	 
	 	 
	 	 





 









 






SCHEDULE IV

to Security Agreement




Item A.
Trademarks





	 	 	 	 	 
	 
	Registered Trademarks
	Trademark	 	Registration No.	 	Registration Date
	 

	 	 
	 	 






	 	 	 	 	 
	 
	Pending Trademark Applications
	Trademark	 	Serial No.	 	Filing Date
	 

	 	 
	 	 





Item B. Trademark Licenses




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Effective	 	Expiration
	Trademark	 	Licensor	 	Licensee	 	Date	 	Date
	 

	 	 
	 	 
	 	 
	 	 





 









 





SCHEDULE V

to Security Agreement




Item A. Copyrights/Mask Works





	 	 	 	 	 	 	 
	 
	Registered Copyrights/Mask Works
	Registration No.	 	Registration Date	 	Author(s)	 	Title
	 

	 	 
	 	 
	 	 





Copyright/Mask Work Pending Registration Applications




     Serial No.



Item B. Copyright/Mask Work Licenses (including an all exclusive Copyright Licenses for U.S.
registered Copyrights)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Effective	 	Expiration
	Copyright	 	Licensor	 	Licensee	 	Date	 	Date
	 

	 	 
	 	 
	 	 
	 	 






 












 

 



EXHIBIT A

to Security Agreement




AMENDED AND RESTATED PATENT SECURITY AGREEMENT




     This AMENDED AND RESTATED PATENT SECURITY AGREEMENT, dated as of ______, ___ 200___(this
“Agreement”), is made by [NAME OF GRANTOR], a _________(the “Grantor”), in
favor of JPMORGAN CHASE BANK, N.A., as the collateral agent (together with its successor(s) thereto
in such capacity, the “Collateral Agent”) for each of the Secured Parties.



     WHEREAS, pursuant to an Amended and Restated Credit Agreement, dated as of December [ ],
2009 (as amended, supplemented, amended and restated or otherwise modified from time to time, the
“Credit Agreement”), among the Borrower, the Lenders, Barclays Bank PLC and Goldman Sachs
Credit Partners L.P. as the Co-Documentation Agents, Bank of America, N.A. and HSBC Securities
(USA) Inc., as the Co-Syndication Agents, the Administrative Agent, the Collateral Agent, and J.P.
Morgan Securities Inc., Bank of America Securities LLC, HSBC Securities (USA) Inc. and Barclays
Capital as the Joint Lead Arrangers and Joint Bookrunners, the Lenders and the Issuers have
extended Commitments to make Credit Extensions to the Borrower;



     WHEREAS, in connection with the Credit Agreement, the Grantor has executed and delivered an
Amended and Restated Pledge and Security Agreement, dated as of December [ ], 2009 (as amended,
supplemented, amended and restated or otherwise modified from time to time, the “Security
Agreement”);



     WHEREAS, pursuant to the Existing Security Agreement, the Grantor entered into a Patent
Security Agreement, dated September 5, 2006 (the “Existing IP Agreement”), in favor of
Citibank, N.A., and the Existing IP Agreement was recorded at the Patent Division of the United
States Patent and Trademark Office on November 22, 2006, at Reel/Frame [___];



     WHEREAS, pursuant to the Credit Agreement and pursuant to Section 4.5 of the Security
Agreement, the Grantor is required to execute and deliver this Agreement and to grant to the
Collateral Agent a continuing security interest in all of the Patent Collateral (as defined below)
to secure all Secured Obligations; and



     WHEREAS, the Grantor has duly authorized the execution, delivery and performance of this
Agreement; and



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Grantor agrees, for the benefit of each Secured Party, as follows:



     SECTION 1. Definitions. Unless otherwise defined herein or the context
otherwise requires, terms used in this Agreement, including its preamble and recitals, have the
meanings provided (or incorporated by reference) in the Security Agreement.



 









 





     SECTION 2. Grant of Security Interest. The Grantor hereby grants to the
Collateral Agent, for its benefit and the ratable benefit of each other Secured Party, a continuing
security interest in all of the Grantor’s right, title and interest, whether now or hereafter
existing or acquired by the Grantor, in and to the following (the “Patent Collateral”):




     (a) inventions and discoveries, whether patentable or not, all letters patent
and applications for letters patent, including all patent applications in preparation for
filing, including all reissues, divisions, continuations, continuations-in-part, extensions,
renewals and reexaminations of any of the foregoing, including all patents issued by, or
patent applications filed with, the United States Patent and Trademark Office
(“Patents”), including each Patent and Patent application referred to in Item
A of Schedule I;




     (b) all United States Patent licenses, and other agreements for the grant by
or to the Grantor of any right to use any items of the type referred to in clause
(a) above (each a “Patent License”), including each Patent License referred to
in Item B of Schedule I;




     (c) the right to sue third parties for past, present and future infringements
of any Patent or Patent application, and for breach or enforcement of any Patent License;
and




     (d) all proceeds of, and rights associated with, the foregoing (including
Proceeds, licenses, royalties, income, payments, claims, damages and proceeds of
infringement suits).



     Notwithstanding the foregoing, Patent Collateral shall not include any Excluded Collateral.



     SECTION 3. Purpose. This Agreement has been executed and delivered by the
Grantor for the purpose of recording the grant of security interest of the Collateral Agent in the
Patent Collateral with the United States Patent and Trademark Office. The security interest
granted hereby has been granted as a supplement to, and not in limitation of, the security interest
granted to the Collateral Agent for its benefit and the ratable benefit of each other Secured Party
under the Security Agreement. The Security Agreement (and all rights and remedies of the
Collateral Agent and each Secured Party thereunder) shall remain in full force and effect in
accordance with its terms.



     SECTION 4. Release of Liens. Upon (i) the Disposition of Patent Collateral
in accordance with the Credit Agreement or (ii) the occurrence of the Termination Date, the
security interests granted herein shall automatically terminate with respect to (A) such Patent
Collateral (in the case of clause (i)) or (B) all Patent Collateral (in the case of
clause (ii)). Upon any such Disposition or termination, the Collateral Agent will, at the
Grantor’s sole request and expense, deliver to the Grantor, without any representations, warranties
or recourse of any kind whatsoever, all Patent Collateral held by the Collateral Agent hereunder,
and execute and deliver to the Grantor such Documents as the Grantor shall reasonably request to
evidence such termination.



A-2









 





     SECTION 5. Acknowledgment. The Grantor does hereby further acknowledge and
affirm that the rights and remedies of the Collateral Agent with respect to the security interest
in the Patent Collateral granted hereby are more fully set forth in the Security Agreement, the
terms and provisions of which (including the remedies provided for therein) are incorporated by
reference herein as if fully set forth herein. In the event of any conflict between the terms of
this Agreement and the terms of the Security Agreement, the terms of the Security Agreement shall
govern.



     SECTION 6. Loan Document. This Agreement is a Loan Document executed
pursuant to the Credit Agreement and shall (unless otherwise expressly indicated herein) be
construed, administered and applied in accordance with the terms and provisions thereof, including
Article X thereof.



     SECTION 7. Counterparts. This Agreement may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original and all of which
shall constitute together but one and the same agreement. Delivery of an executed counterpart of a
signature page to this Agreement by facsimile (or other electronic) transmission shall be effective
as delivery of a manually executed counterpart of this Agreement.



* * * * *








A-3









 








     IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed
and delivered by its Authorized Officer, solely in such capacity and not as an individual, as of
the date first above written.



	 	 	 	 	 
	 	[NAME OF GRANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	JPMORGAN CHASE BANK, N.A.,

as Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



SCHEDULE I

to Patent Security Agreement




	 	 	 	 	 	 	 	 	 
	Item A. Patents

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Issued Patents
	 

	 	 	 	 	 	 	 	 
	Patent No.
	 	Issue Date

	 	Title
	 
	 	 	 	 
	 	 
	 
	 	 	 	 	 	 	 	 
	 
	Pending Patent
Applications
	 	 	 	 	 	 	 
	Serial No.
	 	Filing Date
	 	Title
	 
	 	 
	 	 





	 	 	 	 	 	 	 	 	 	 	 
	Item B. Patent Licenses	 	 	 	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Patent
	 	Licensor
	 	Licensee
	 	Effective

Date
	 	Expiration

Date
	 
	 	 
	 	 
	 	 
	 	 






 












 





EXHIBIT B

to Security Agreement




AMENDED AND RESTATED TRADEMARK SECURITY AGREEMENT




     This AMENDED AND RESTATED TRADEMARK SECURITY AGREEMENT, dated as of ___, 200___(this
“Agreement”), is made by [NAME OF GRANTOR], a ___(the “Grantor”), in
favor of JPMORGAN CHASE BANK, N.A., as the collateral agent (together with its successor(s) thereto
in such capacity, the “Collateral Agent”) for each of the Secured Parties.



     WHEREAS, pursuant to an Amended and Restated Credit Agreement, dated as of December [ ],
2009 (as amended, supplemented, amended and restated or otherwise modified from time to time, the
“Credit Agreement”), among the Borrower, the Lenders, Barclays Bank PLC and Goldman Sachs
Credit Partners L.P. as the Co-Documentation Agents, Bank of America, N.A. and HSBC Securities
(USA) Inc., as the Co-Syndication Agents, the Administrative Agent, the Collateral Agent, and J.P.
Morgan Securities Inc., Bank of America Securities LLC, HSBC Securities (USA) Inc. and Barclays
Capital as the Joint Lead Arrangers and Joint Bookrunners, the Lenders and the Issuers have
extended Commitments to make Credit Extensions to the Borrower;



     WHEREAS, in connection with the Credit Agreement, the Grantor has executed and delivered an
Amended and Restated Pledge and Security Agreement, dated as of December [ ], 2009 (as amended,
supplemented, amended and restated or otherwise modified from time to time, the “Security
Agreement”);



     WHEREAS, pursuant to the Existing Security Agreement, the Grantor entered into a Trademark
Security Agreement, dated September 5, 2006 (the “Existing IP Agreement”), in favor of
Citibank, N.A., and the Existing IP Agreement was recorded at the Trademark Division of the United
States Patent and Trademark Office on September 18, 2006, at Reel/Frame [___];



     WHEREAS, pursuant to the Credit Agreement and pursuant to Section 4.5 of the Security
Agreement, the Grantor is required to execute and deliver this Agreement and to grant to the
Collateral Agent a continuing security interest in all of the Trademark Collateral (as defined
below) to secure all Secured Obligations; and



     WHEREAS, the Grantor has duly authorized the execution, delivery and performance of this
Agreement; and



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Grantor agrees, for the benefit of each Secured Party, as follows:



     SECTION 1. Definitions. Unless otherwise defined herein or the context otherwise
requires, terms used in this Agreement, including its preamble and recitals, have the meanings
provided (or incorporated by reference) in the Security Agreement.



 









 





     SECTION 2. Grant of Security Interest. The Grantor hereby grants to the Collateral
Agent, for its benefit and the ratable benefit of each other Secured Party, a continuing security
interest in all of the Grantor’s right, title and interest, whether now or hereafter existing or
acquired by the Grantor, in and to the following (the “Trademark Collateral”):



     (a)
(i) all United States trademarks, trade names, corporate names, company names,
business names, fictitious business names, trade styles, service marks, certification marks,
collective marks, logos and other source or business identifiers, and all goodwill of the
business associated therewith, now existing or hereafter adopted or acquired, whether
currently in use or not, all registrations and recordings thereof and all applications in
connection therewith, whether pending or in preparation for filing, including registrations,
recordings and applications (except for any such applications filed pursuant to 15 U.S.C. §
1051(b) unless and until a “Statement of Use” has been filed in respect of such application)
in the United States Patent and Trademark Office, and all common-law rights relating to the
foregoing, and (ii) the right to obtain all reissues, extensions or renewals of the
foregoing (collectively referred to as “Trademarks”), including those Trademarks
referred to in Item A of Schedule I;



     (b) all Trademark licenses and other agreements for the grant by or to the Grantor of
any right to use any Trademark (each a “Trademark License”), including each
Trademark License referred to in Item B of Schedule I;


     (c) all of the goodwill of the business connected with the use of, and symbolized by
the Trademarks described in clause (a) and, to the extent applicable, clause
(b);



     (d) the right to sue third parties for past, present and future infringements or
dilution of the Trademarks described in clause (a) and, to the extent applicable,
clause (b) or for any injury to the goodwill associated with the use of any such
Trademark or for breach or enforcement of any Trademark License; and



     (e) all proceeds of, and rights associated with, the foregoing (including Proceeds,
licenses, royalties, income, payments, claims, damages and proceeds of infringement suits).




     Notwithstanding the foregoing, Trademark Collateral shall not include any Excluded Collateral.



     SECTION 3. Purpose. This Agreement has been executed and delivered by the Grantor for
the purpose of recording the grant of security interest of the Collateral Agent in the Trademark
Collateral with the United States Patent and Trademark Office. The security interest granted
hereby has been granted as a supplement to, and not in limitation of, the security interest granted
to the Collateral Agent for its benefit and the ratable benefit of each other Secured Party under
the Security Agreement. The Security Agreement (and all rights and remedies of the Collateral
Agent and each Secured Party thereunder) shall remain in full force and effect in accordance with
its terms.



B-2









 





     SECTION 4. Release of Liens. Upon (i) the Disposition of Trademark Collateral in
accordance with the Credit Agreement or (ii) the occurrence of the Termination Date, the security
interests granted herein shall automatically terminate with respect to (A) such Trademark
Collateral (in the case of clause (i)) or (B) all Trademark Collateral (in the case of
clause (ii)). Upon any such Disposition or termination, the Collateral Agent will, at the
Grantor’s sole request and expense, deliver to the Grantor, without any representations, warranties
or recourse of any kind whatsoever, all Trademark Collateral held by the Collateral Agent
hereunder, and execute and deliver to the Grantor such Documents as the Grantor shall reasonably
request to evidence such termination.



     SECTION 5. Acknowledgment. The Grantor does hereby further acknowledge and affirm
that the rights and remedies of the Collateral Agent with respect to the security interest in the
Trademark Collateral granted hereby are more fully set forth in the Security Agreement, the terms
and provisions of which (including the remedies provided for therein) are incorporated by reference
herein as if fully set forth herein. In the event of any conflict between the terms of this
Agreement and the terms of the Security Agreement, the terms of the Security Agreement shall
govern.



     SECTION 6. Loan Document. This Agreement is a Loan Document executed pursuant to the
Credit Agreement and shall (unless otherwise expressly indicated herein) be construed, administered
and applied in accordance with the terms and provisions thereof, including Article X thereof.



     SECTION 7. Counterparts. This Agreement may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of which shall
constitute together but one and the same agreement. Delivery of an executed counterpart of a
signature page to this Agreement by facsimile (or other electronic) transmission shall be effective
as delivery of a manually executed counterpart of this Agreement.



* * * * *









B-3









 








     IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed
and delivered by Authorized Officer, solely in such capacity and not as an individual, as of the
date first above written.




	 	 	 	 	 
	 	[NAME OF GRANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	JPMORGAN CHASE BANK, N.A.,

as Collateral Agent 

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 











 





SCHEDULE I

to Trademark Security Agreement




Item A. Trademarks




Registered Trademarks




					
	Trademark
	 	Registration No.
	 	Registration Date






Pending Trademark Applications




					
	Trademark
	 	Serial No.
	 	Filing Date






Item B. Trademark Licenses




	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	Effective
	 	Expiration
	Trademark
	 	Licensor
	 	Licensee
	 	Date
	 	Date
	 
	 	 
	 	 
	 	 
	 	 





 









 






EXHIBIT C

to Security Agreement




AMENDED AND RESTATED COPYRIGHT SECURITY AGREEMENT




     This
AMENDED AND RESTATED COPYRIGHT SECURITY AGREEMENT, dated as of
              
      , 200___ (this
“Agreement”), is made by [NAME OF
GRANTOR], a                                          (the “Grantor”), in
favor of JPMORGAN CHASE BANK, N.A., as the collateral agent (together with its successor(s) thereto
in such capacity, the “Collateral Agent”) for each of the Secured Parties.



     WHEREAS,
pursuant to an Amended and Restated Credit Agreement, dated as of
December [  ],
2009 (as amended, supplemented, amended and restated or otherwise modified from time to time, the
“Credit Agreement”), among the Borrower, the Lenders, Barclays Bank PLC and Goldman Sachs
Credit Partners L.P. as the Co-Documentation Agents, Bank of America, N.A. and HSBC Securities
(USA) Inc., as the Co-Syndication Agents, the Administrative Agent, the Collateral Agent, and J.P.
Morgan Securities Inc., Bank of America Securities LLC, HSBC Securities (USA) Inc. and Barclays
Capital as the Joint Lead Arrangers and Joint Bookrunners, the Lenders and the Issuers have
extended Commitments to make Credit Extensions to the Borrower;



     WHEREAS, in connection with the Credit Agreement, the Grantor has executed and delivered an
Amended and Restated Pledge and Security Agreement, dated as of
December [ ], 2009 (as amended,
supplemented, amended and restated or otherwise modified from time to time, the “Security
Agreement”);



     WHEREAS, pursuant to the Existing Security Agreement, the Grantor entered into a Copyright
Security Agreement, dated September 5, 2006 (the “Existing IP Agreement”), in favor of
Citibank, N.A., and the Existing IP Agreement was recorded at the United States Copyright Office on
September 5, 2006, at Volume/Document [                    ];



     WHEREAS, pursuant to the Credit Agreement and pursuant to Section 4.5 of the Security
Agreement, the Grantor is required to execute and deliver this Agreement and to grant to the
Collateral Agent a continuing security interest in all of the Copyright Collateral (as defined
below) to secure all Secured Obligations; and



     WHEREAS, the Grantor has duly authorized the execution, delivery and performance of this
Agreement; and



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Grantor agrees, for the benefit of each Secured Party, as follows:



 









 





     SECTION 8. Definitions. Unless otherwise defined herein or the context otherwise
requires, terms used in this Agreement, including its preamble and recitals, have the meanings
provided (or incorporated by reference) in the Security Agreement.



     SECTION 9. Grant of Security Interest. The Grantor hereby grants to the Collateral
Agent, for its benefit and the ratable benefit of each other Secured Party, a continuing security
interest in all of the Grantor’s right, title and interest, whether now or hereafter existing or
acquired by the Grantor, in and to the following (the “Copyright Collateral”):




     (a) all United States copyrights, registered or unregistered and whether published or
unpublished, now or hereafter in force including copyrights registered or applied for in the
United States Copyright Office, and registrations and recordings thereof and all
applications for registration thereof, whether pending or in preparation and all extensions
and renewals of the foregoing (“Copyrights”), including the Copyrights which are the
subject of a registration or application referred to in Item A of Schedule
I;




     (b) all express or implied Copyright licenses and other agreements for the grant by or
to the Grantor of any right to use any items of the type referred to in clause (a) above
(each a “Copyright License”), including each Copyright License referred to in
Item B of Schedule I;




     (c) the right to sue for past, present and future infringements of any of the
Copyrights owned by the Grantor, and for breach or enforcement of any Copyright License and
all extensions and renewals of any thereof; and




     (d) all proceeds of, and rights associated with, the foregoing (including Proceeds,
licenses, royalties, income, payments, claims, damages and proceeds of infringement suits).



     Notwithstanding the foregoing, Copyright Collateral shall not include any Excluded Collateral.



     SECTION 10. Purpose. This Agreement has been executed and delivered by the Grantor for
the purpose of recording the grant of security interest of the Collateral Agent in the Copyright
Collateral with the United States Copyright Office. The security interest granted hereby has been
granted as a supplement to, and not in limitation of, the security interest granted to the
Collateral Agent for its benefit and the ratable benefit of each other Secured Party under the
Security Agreement. The Security Agreement (and all rights and remedies of the Collateral Agent
and each Secured Party thereunder) shall remain in full force and effect in accordance with its
terms.



     SECTION 11. Release of Liens. Upon (i) the Disposition of Copyright Collateral in
accordance with the Credit Agreement or (ii) the occurrence of the Termination Date, the security
interests granted herein shall automatically terminate with respect to (A) such Copyright
Collateral (in the case of clause (i)) or (B) all Copyright Collateral (in the case of
clause (ii)). Upon any such Disposition or termination, the Collateral Agent will, at the
Grantor’s sole request and expense, deliver to the Grantor, without any representations, warranties
or recourse of any kind whatsoever, all Copyright Collateral held by the Collateral Agent
hereunder, and execute



C-2









 




and deliver to the Grantor such Documents as the Grantor shall reasonably request to evidence
such termination.




     SECTION 12. Acknowledgment. The Grantor does hereby further acknowledge and affirm
that the rights and remedies of the Collateral Agent with respect to the security interest in the
Copyright Collateral granted hereby are more fully set forth in the Security Agreement, the terms
and provisions of which (including the remedies provided for therein) are incorporated by reference
herein as if fully set forth herein. In the event of any conflict between the terms of this
Agreement and the terms of the Security Agreement, the terms of the Security Agreement shall
govern.



     SECTION 13. Loan Document. This Agreement is a Loan Document executed pursuant to the
Credit Agreement and shall (unless otherwise expressly indicated herein) be construed, administered
and applied in accordance with the terms and provisions thereof, including Article X thereof.



     SECTION 14. Counterparts. This Agreement may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of which shall
constitute together but one and the same agreement. Delivery of an executed counterpart of a
signature page to this Agreement by facsimile (or other electronic) transmission shall be effective
as delivery of a manually executed counterpart of this Agreement.



* * * * *




C-3









 





     IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed
and delivered by its Authorized Officer, solely in such capacity and not as an individual, as of
the date first above written.



	 	 	 	 	 
	 	[NAME OF GRANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	JPMORGAN CHASE BANK, N.A.,

as Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
















 





SCHEDULE I

to Copyright Security Agreement




Item A. Copyrights/Mask Works




	 	 	 	 	 
	Registered Copyrights/Mask Works
	Registration No.	 	Registration Date	 	Title
	 
	 	 
	 	 





Item B. Copyright/Mask Work Licenses (including an all exclusive Copyright Licenses for U.S.
registered Copyrights)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Effective	 	Expiration
	Copyright	 	Licensor	 	Licensee	 	Date	 	Date
	 
	 	 
	 	 
	 	 
	 	 





 









 






ANNEX I

to Security Agreement




SUPPLEMENT TO

AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT




     This SUPPLEMENT, dated as of                           ,            (this “Supplement”), is to the
Amended and Restated Pledge and Security Agreement, dated as of December [  ], 2009 (as amended,
supplemented, amended and restated or otherwise modified from time to time, the “Security
Agreement”), among the Grantors (such term, and other terms used in this Supplement, to have
the meanings set forth in or incorporated by reference in Article I of the Security Agreement) from
time to time party thereto, in favor of JPMORGAN CHASE BANK, N.A., as the collateral agent
(together with its successor(s) thereto in such capacity, the “Collateral Agent”) for each
of the Secured Parties.



     WHEREAS, pursuant to an Amended and Restated Credit Agreement, dated as of December [  ],
2009 (as amended, supplemented, amended and restated or otherwise modified from time to time, the
“Credit Agreement”), among the Borrower, the Lenders, Barclays Bank PLC and Goldman Sachs
Credit Partners L.P. as the Co-Documentation Agents, Bank of America, N.A. and HSBC Securities
(USA) Inc., as the Co-Syndication Agents, the Administrative Agent, the Collateral Agent, and J.P.
Morgan Securities Inc., Bank of America Securities LLC, HSBC Securities (USA) Inc. and Barclays
Capital as the Joint Lead Arrangers and Joint Bookrunners, the Lenders and the Issuers have
extended Commitments to make Credit Extensions to the Borrower; and



     WHEREAS, pursuant to the provisions of Section 7.6 of the Security Agreement, each of the
undersigned is becoming a Grantor under the Security Agreement; and



     WHEREAS, each of the undersigned desires to become a “Grantor” under the Security Agreement in
order to induce the Secured Parties to continue to extend Loans and issue Letters of Credit under
the Credit Agreement;



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, each of the undersigned agrees, for the benefit of each Secured Party, as
follows.



     SECTION 15. Party to Security Agreement, etc. In accordance with the terms of the
Security Agreement, by its signature below each of the undersigned hereby irrevocably agrees to
become a Grantor under the Security Agreement with the same force and effect as if it were an
original signatory thereto and each of the undersigned hereby (a) agrees to be bound by and comply
with all of the terms and provisions of the Security Agreement applicable to it as a Grantor and
(b) represents and warrants that the representations and warranties made by it as a Grantor
thereunder are true and correct in all material respects as of the date hereof, unless stated to
relate solely to an earlier date, in which case such representations and warranties shall be true
and correct in all material respects as of such earlier date. In furtherance of the foregoing,
each



 









 




reference to a “Grantor” and/or “Grantors” in the Security Agreement shall be deemed to
include each of the undersigned.




     SECTION 16. Representations. Each of the undersigned Grantor hereby represents and
warrants that this Supplement has been duly authorized, executed and delivered by it and that this
Supplement and the Security Agreement constitute the legal, valid and binding obligation of each of
the undersigned, enforceable (except, in any case, as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights
generally and by principles of equity) against it in accordance with its terms.



     SECTION 17. Full Force of Security Agreement. Except as expressly supplemented
hereby, the Security Agreement shall remain in full force and effect in accordance with its terms.



     SECTION 18. Severability. Wherever possible each provision of this Supplement shall
be interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this Supplement shall be prohibited by or invalid under such law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Supplement or the Security Agreement.



     SECTION 19. Governing Law, Entire Agreement, etc. THIS SUPPLEMENT SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR
SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
This Supplement and the other Loan Documents constitute the entire understanding among the parties
hereto with respect to the subject matter thereof and supersede any prior agreements, written or
oral, with respect thereto.



     SECTION 20. Counterparts. This Supplement may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of which shall
constitute together but one and the same agreement. Delivery of an executed counterpart of a
signature page to this Supplement by facsimile (or other electronic) transmission shall be
effective as delivery of a manually executed counterpart of this Supplement.



* * * * *






 









 








     IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed
and delivered by its Authorized Officer, solely in such capacity and not as an individual, as of
the date first above written.



	 	 	 	 	 
	 	[NAME OF ADDITIONAL SUBSIDIARY]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[NAME OF ADDITIONAL SUBSIDIARY]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 
	ACCEPTED AND AGREED FOR ITSELF

AND ON BEHALF OF THE SECURED PARTIES:





JPMORGAN CHASE BANK, N.A.,   

as Collateral Agent

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 



 









 






	 	 	 	 	 



[COPY SCHEDULES FROM SECURITY AGREEMENT]





 











 





EXHIBIT H




FORM OF CLOSING DATE CERTIFICATE




HANESBRANDS INC.



December [      ], 2009




     This certificate is delivered pursuant to Section 5.1.2 of the Amended and Restated Credit
Agreement, dated as of December [      ], 2009 (as amended, supplemented, amended and restated or
otherwise modified from time to time, the “Credit Agreement”), among the Borrower, the
Lenders, Barclays Bank PLC and Goldman Sachs Credit Partners L.P., as the Co-Documentation Agents,
Bank of America, N.A. and HSBC Securities (USA) Inc., as the Co-Syndication Agents, JPMorgan Chase
Bank, N.A., as the Administrative Agent and the Collateral Agent, and JPMorgan Securities Inc.,
Banc of America Securities LLC, HSBC Securities (USA) Inc. and Barclays Capital, as the Joint Lead
Arrangers and Joint Bookrunners. Capitalized terms used herein that are defined in the Credit
Agreement, unless otherwise defined herein, have the meanings provided (or incorporated by
reference) in the Credit Agreement.



     The undersigned Authorized Officer, solely in such capacity and not as an individual, hereby
certifies, represents and warrants that, as of the Restatement Effective Date:



     1. Consummation of Transactions. (a) All actions necessary to consummate the
Transaction have been taken in accordance in all material respects with all applicable law and in
accordance with the terms of each applicable Transaction Document, without amendment or waiver of
any material provision thereof, unless approved by the Lead Arrangers in their reasonable
discretion.



     (b) Attached hereto as Annex I are true and correct copies of the material 2016
Senior Note Documents which are in full force and effect and pursuant to which the Borrower will
receive net cash proceeds of $[                    ] in connection with the issuance of senior unsecured notes
thereunder on the Restatement Effective Date.



     2. Litigation, etc. There exists no action, suit, investigation, litigation or
proceeding pending or, to the knowledge of the Borrower or any of its Subsidiaries, threatened in
writing in any court or before any arbitrator or governmental or regulatory agency or authority
that could reasonably be expected to have a Material Adverse Effect.



     3. Approval. All material and necessary governmental and third party consents and
approvals have been obtained (without the imposition of any material and adverse conditions that
are not reasonably acceptable to the Lenders) and remain in effect and all applicable waiting
periods have expired without any material and adverse action being taken by any competent
authority.



     4. Debt Ratings. The Borrower has obtained a senior secured debt rating (of any
level) in respect of the Loans from each of S&P and Moody’s and such ratings (of any level) are in
effect as of the date hereof.



 









 





     5. Compliance with Warranties, No Default, etc. The following statements are
true and correct as of the date hereof (after giving effect to the making of the initial
Credit Extension):




     (a) the representations and warranties set forth in each Loan Document are, in
each case, true and correct in all material respects (unless stated to relate solely
to an earlier date, in which case such representations and warranties were true and
correct in all material respects as of such earlier date); and




     (b) no Default has occurred and is continuing.



 









 





     IN WITNESS WHEREOF, the undersigned has caused this Closing Date Certificate to be executed
and delivered, and the certification, representations and warranties contained herein, by its
Authorized Officer, are made solely in such capacity and not as an individual, as of the date first
written above.



	 	 	 	 	 
	 	HANESBRANDS INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



Annex I




Material 2016 Senior Note Documents



 









 





EXHIBIT I




FORM OF SOLVENCY CERTIFICATE




HANESBRANDS INC.



December [      ], 2009





     This Solvency Certificate is delivered pursuant to Section 5.1.7 of the Amended and Restated
Credit Agreement, dated as of December [___], 2009 (as amended, supplemented, amended and restated
or otherwise modified from time to time, the “Credit Agreement”), among the Borrower, the
Lenders, Barclays Bank PLC and Goldman Sachs Credit Partners L.P., as the Co-Documentation Agents,
Bank of America, N.A. and HSBC Securities (USA) Inc., as the Co-Syndication Agents, JPMorgan Chase
Bank, N.A., as the Administrative Agent and the Collateral Agent, and JPMorgan Securities Inc.,
Banc of America Securities LLC, HSBC Securities (USA) Inc. and Barclays Capital, as the Joint Lead
Arrangers and Joint Bookrunners. Terms used herein that are defined in the Credit Agreement,
unless otherwise defined herein, have the meanings provided (or incorporated by reference) in the
Credit Agreement.



     1. I am a duly elected, qualified and acting Treasurer of the Borrower.



     2. I have reviewed and am familiar with the contents of this Solvency Certificate.



     3. I have made, or have caused to be made under my supervision, such examination or
investigation as is necessary to enable me to express an informed opinion as to the matters
referred to herein.



     4. Based upon my review and examination described in paragraph 3 above, I certify that on the
Restatement Effective Date, before and after giving effect to the consummation of the Transaction,
(i) the fair value of the property (on a going-concern basis) of the Borrower and its Subsidiaries
on a consolidated basis is greater than the total amount of liabilities, including contingent
liabilities, of the Borrower and its Subsidiaries on a consolidated basis, (ii) the present fair
salable value of the assets (on a going-concern basis) of the Borrower and its Subsidiaries on a
consolidated basis is not less than the amount that will be required to pay the probable liability
of the Borrower and its Subsidiaries on a consolidated basis on their debts as they become absolute
and matured in the ordinary course of business, (iii) the Borrower does not intend to, and does not
believe that it or its Subsidiaries will, incur debts or liabilities beyond the ability of the
Borrower and its Subsidiaries to pay as such debts and liabilities mature in the ordinary course of
business (including through refinancings, asset sales and other capital market transactions), and
(iv) the Borrower and its Subsidiaries on a consolidated basis are not engaged in business or a
transaction, and the Borrower and its Subsidiaries on a consolidated basis are not about to engage
in a business or a transaction, for which the property of the Borrower and its Subsidiaries on a
consolidated basis would constitute an unreasonably small capital.



 









 




     IN WITNESS WHEREOF, the undersigned has executed this Solvency Certificate on the date first
stated above.




	 	 	 	 	 
	 	 	 
	 	  	


 	 
	 	 	Name:  	 	 
	 	 	Title: