Exhibit 10.31


 




EXECUTION
VERSION


 





 


$2,500,000,000


 


SENIOR SUBORDINATED INTERIM LOAN AGREEMENT


 


Dated as of September 24, 2007


 


as Amended and Restated as of October 24,
2007


 


among


 


FIRST DATA CORPORATION,

as the Borrower,


 


The Several Lenders

from Time to Time Parties Hereto,


 


CITIBANK, N.A.,

as Administrative Agent,


 


CREDIT SUISSE, CAYMAN ISLANDS BRANCH,

as Syndication Agent,


 


and


 


CITIGROUP GLOBAL MARKETS INC.,

CREDIT SUISSE SECURITIES (USA) LLC,

DEUTSCHE BANK SECURITIES INC.,

GOLDMAN SACHS CREDIT PARTNERS L.P.,

HSBC SECURITIES (USA) INC.,

LEHMAN BROTHERS INC. and

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

as Joint Lead Arrangers and Bookrunners




 





 


Cahill Gordon & Reindel LLP


80 Pine Street


New York, New York  10005


 


892479


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
  SECTION 1.

  	
   

  	
  DEFINITIONS

  	
  3

  
	
   

  	
  1.1.

  	
   

  	
  Defined Terms

  	
  3

  
	
   

  	
  1.2.

  	
   

  	
  Other Interpretive Provisions

  	
  51

  
	
   

  	
  1.3.

  	
   

  	
  Accounting Terms

  	
  52

  
	
   

  	
  1.4.

  	
   

  	
  [Reserved]

  	
  52

  
	
   

  	
  1.5.

  	
   

  	
  References to Agreements, Laws, Etc.

  	
  52

  
	
   

  	
  1.6.

  	
   

  	
  [Reserved]

  	
  52

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
   

  	
  AMOUNT AND TERMS OF CREDIT

  	
  52

  
	
   

  	
  2.1.

  	
   

  	
  Commitments

  	
  52

  
	
   

  	
  2.2.

  	
   

  	
  Maximum Number of Borrowings

  	
  53

  
	
   

  	
  2.3.

  	
   

  	
  Notice of Borrowing

  	
  53

  
	
   

  	
  2.4.

  	
   

  	
  Disbursement of Funds

  	
  53

  
	
   

  	
  2.5.

  	
   

  	
  Repayment of Loans; Evidence of Debt

  	
  54

  
	
   

  	
  2.6.

  	
   

  	
  Conversions and Continuations

  	
  55

  
	
   

  	
  2.7.

  	
   

  	
  Pro Rata Borrowings

  	
  56

  
	
   

  	
  2.8.

  	
   

  	
  Interest

  	
  56

  
	
   

  	
  2.9.

  	
   

  	
  Interest Periods

  	
  57

  
	
   

  	
  2.10.

  	
   

  	
  Increased Costs, Illegality, Etc.

  	
  57

  
	
   

  	
  2.12

  	
   

  	
  Change of Lending Office

  	
  60

  
	
   

  	
  2.13.

  	
   

  	
  Notice of Certain Costs

  	
  60

  
	
   

  	
  2.14

  	
   

  	
  Permanent Refinancing

  	
  60

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3. 

  	
   

  	
  [RESERVED]

  	
  62

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4. 

  	
   

  	
  FEES; COMMITMENTS

  	
  62

  
	
   

  	
  4.1.

  	
   

  	
  Administrative Agent’s Fees

  	
  62

  
	
   

  	
  4.2.

  	
   

  	
  [Reserved]

  	
  62

  
	
   

  	
  4.3.

  	
   

  	
  Mandatory Termination of Commitments

  	
  62

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5. 

  	
   

  	
  PAYMENTS

  	
  62

  
	
   

  	
  5.1.

  	
   

  	
  Voluntary Prepayments

  	
  62

  
	
   

  	
  5.2.

  	
   

  	
  Mandatory Prepayments

  	
  63

  
	
   

  	
  5.3.

  	
   

  	
  Method and Place of Payment

  	
  64

  
	
   

  	
  5.4.

  	
   

  	
  Net Payments

  	
  65

  
	
   

  	
  5.5.

  	
   

  	
  Computations of Interest

  	
  68

  
	
   

  	
  5.6.

  	
   

  	
  Limit on Rate of Interest

  	
  68

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6. 

  	
   

  	
  CONDITIONS PRECEDENT TO INITIAL BORROWING
  UNDER ORIGINAL SENIOR SUBORDINATED LOAN AGREEMENT

  	
  68

  
	
   

  	
  6.1.

  	
   

  	
  Loan Documents

  	
  69

  



 


i

















 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
  6.2.

  	
   

  	
  Guarantee

  	
   

  
	
   

  	
  6.3.

  	
   

  	
  Legal Opinions

  	
  69

  
	
   

  	
  6.4.

  	
   

  	
  Notice of Borrowing

  	
  69

  
	
   

  	
  6.5.

  	
   

  	
  Equity Investments

  	
  69

  
	
   

  	
  6.6.

  	
   

  	
  Closing Certificates

  	
  69

  
	
   

  	
  6.7.

  	
   

  	
  Authorization of Proceedings of Each Loan Party

  	
  69

  
	
   

  	
  6.8.

  	
   

  	
  Fees

  	
  69

  
	
   

  	
  6.9.

  	
   

  	
  Representations and Warranties

  	
  69

  
	
   

  	
  6.10.

  	
   

  	
  Solvency Certificate

  	
  70

  
	
   

  	
  6.11.

  	
   

  	
  Merger

  	
  70

  
	
   

  	
  6.12.

  	
   

  	
  Patriot Act

  	
  70

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7. 

  	
   

  	
  CONDITIONS PRECEDENT TO ENTERING THIS
  AGREEMENT

  	
  70

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8. 

  	
   

  	
  REPRESENTATIONS, WARRANTIES AND AGREEMENTS

  	
  70

  
	
   

  	
  8.1.

  	
   

  	
  Corporate Status

  	
  71

  
	
   

  	
  8.2.

  	
   

  	
  Corporate Power and Authority

  	
  71

  
	
   

  	
  8.3.

  	
   

  	
  No Violation

  	
  71

  
	
   

  	
  8.4.

  	
   

  	
  Litigation

  	
  71

  
	
   

  	
  8.5.

  	
   

  	
  Margin Regulations

  	
  71

  
	
   

  	
  8.6.

  	
   

  	
  Governmental Approvals

  	
  71

  
	
   

  	
  8.7.

  	
   

  	
  Investment Company Act

  	
  72

  
	
   

  	
  8.8.

  	
   

  	
  True and Complete Disclosure

  	
  72

  
	
   

  	
  8.9.

  	
   

  	
  Financial Condition; Financial Statements

  	
  72

  
	
   

  	
  8.10.

  	
   

  	
  Tax Matters

  	
  73

  
	
   

  	
  8.11.

  	
   

  	
  Compliance with ERISA

  	
  73

  
	
   

  	
  8.12.

  	
   

  	
  Subsidiaries

  	
  74

  
	
   

  	
  8.13.

  	
   

  	
  Intellectual Property

  	
  74

  
	
   

  	
  8.14.

  	
   

  	
  Environmental Laws

  	
  74

  
	
   

  	
  8.15.

  	
   

  	
  Properties

  	
  74

  
	
   

  	
  8.16.

  	
   

  	
  Solvency

  	
  74

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9. 

  	
   

  	
  COVENANTS

  	
  75

  
	
   

  	
  9.1.

  	
   

  	
  Reports and Other Information

  	
  75

  
	
   

  	
  9.2.

  	
   

  	
  Compliance Certificate

  	
  76

  
	
   

  	
  9.3.

  	
   

  	
  Taxes

  	
  76

  
	
   

  	
  9.4.

  	
   

  	
  Stay, Extension and Usury Laws

  	
  76

  
	
   

  	
  9.5.

  	
   

  	
  Limitation on Restricted Payments

  	
  77

  
	
   

  	
  9.6.

  	
   

  	
  Dividend and Other Payment Restrictions Affecting Restricted
  Subsidiaries

  	
  85

  
	
   

  	
  9.7.

  	
   

  	
  Limitation on Incurrence of Indebtedness and Issuance of Disqualified
  Stock and Preferred Stock

  	
  87

  
	
   

  	
  9.8.

  	
   

  	
  Asset Sales

  	
  93

  
	
   

  	
  9.9.

  	
   

  	
  Transactions with Affiliates

  	
  95

  
	
   

  	
  9.10.

  	
   

  	
  Liens

  	
  98

  



 


ii

















 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
  9.11.

  	
   

  	
  Corporate Existence

  	
  98

  
	
   

  	
  9.12.

  	
   

  	
  Offer to Repurchase upon Change of Control

  	
  99

  
	
   

  	
  9.13.

  	
   

  	
  Limitation on Guarantees of Indebtedness by Restricted Subsidiaries

  	
  100

  
	
   

  	
  9.14.

  	
   

  	
  Merger, Consolidation or Sale of All or Substantially All Assets

  	
  101

  
	
   

  	
  9.15.

  	
   

  	
  Successor Corporation Substituted

  	
  103

  
	
   

  	
  9.16.

  	
   

  	
  [Reserved]

  	
  103

  
	
   

  	
  9.17.

  	
   

  	
  [Reserved]

  	
  103

  
	
   

  	
  9.18.

  	
   

  	
  Limitation on Layering

  	
  103

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
   

  	
  [RESERVED]

  	
  104

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.

  	
   

  	
  DEFAULTS AND REMEDIES

  	
  104

  
	
   

  	
  11.1.

  	
   

  	
  Events of Default

  	
  104

  
	
   

  	
  11.2.

  	
   

  	
  [Reserved]

  	
  107

  
	
   

  	
  11.3.

  	
   

  	
  [Reserved]

  	
  107

  
	
   

  	
  11.4.

  	
   

  	
  [Reserved]

  	
  107

  
	
   

  	
  11.5.

  	
   

  	
  [Reserved]

  	
  107

  
	
   

  	
  11.6.

  	
   

  	
  [Reserved]

  	
  107

  
	
   

  	
  11.7.

  	
   

  	
  [Reserved]

  	
  107

  
	
   

  	
  11.8.

  	
   

  	
  [Reserved]

  	
  107

  
	
   

  	
  11.9.

  	
   

  	
  [Reserved]

  	
  107

  
	
   

  	
  11.10.

  	
   

  	
  [Reserved]

  	
  107

  
	
   

  	
  11.11.

  	
   

  	
  [Reserved]

  	
  107

  
	
   

  	
  11.12.

  	
   

  	
  [Reserved]

  	
  107

  
	
   

  	
  11.13.

  	
   

  	
  [Reserved]

  	
  107

  
	
   

  	
  11.14.

  	
   

  	
  [Reserved]

  	
  107

  
	
   

  	
  11.15.

  	
   

  	
  [Reserved]

  	
  107

  
	
   

  	
  11.16.

  	
   

  	
  Remedies upon Event of Default, Waivers of Past Defaults

  	
  107

  
	
   

  	
  11.17.

  	
   

  	
  Application of Proceeds

  	
  108

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 12.

  	
   

  	
  THE AGENTS

  	
  109

  
	
   

  	
  12.1.

  	
   

  	
  Appointment

  	
  109

  
	
   

  	
  12.2.

  	
   

  	
  Delegation of Duties

  	
  109

  
	
   

  	
  12.3.

  	
   

  	
  Exculpatory Provisions

  	
  109

  
	
   

  	
  12.4.

  	
   

  	
  Reliance by Agents

  	
  110

  
	
   

  	
  12.5.

  	
   

  	
  Notice of Default

  	
  110

  
	
   

  	
  12.6.

  	
   

  	
  Non-Reliance on Administrative Agent and Other Lenders

  	
  111

  
	
   

  	
  12.7.

  	
   

  	
  Indemnification

  	
  111

  
	
   

  	
  12.8.

  	
   

  	
  Agents in Their Individual Capacities

  	
  112

  
	
   

  	
  12.9.

  	
   

  	
  Successor Agents

  	
  112

  
	
   

  	
  12.10.

  	
   

  	
  Withholding Tax

  	
  113

  
	
   

  	
  12.11.

  	
   

  	
  [Reserved]

  	
  113

  
	
   

  	
  12.12.

  	
   

  	
  Agents under Guarantee

  	
  113

  
	
   

  	
  12.13.

  	
   

  	
  Right to Enforce Guarantee

  	
  113

  



 


iii

















 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 13.

  	
   

  	
  MISCELLANEOUS

  	
  114

  
	
   

  	
  13.1.

  	
   

  	
  Amendments, Waivers and Releases

  	
  114

  
	
   

  	
  13.2.

  	
   

  	
  Notices

  	
  116

  
	
   

  	
  13.3.

  	
   

  	
  No Waiver; Cumulative Remedies

  	
  117

  
	
   

  	
  13.4.

  	
   

  	
  Survival of Representations and Warranties

  	
  117

  
	
   

  	
  13.5.

  	
   

  	
  Payment of Expenses; Indemnification

  	
  117

  
	
   

  	
  13.6.

  	
   

  	
  Successors and Assigns; Participations and Assignments

  	
  118

  
	
   

  	
  13.7.

  	
   

  	
  Replacements of Lenders Under Certain Circumstances

  	
  122

  
	
   

  	
  13.8.

  	
   

  	
  Adjustments; Set-off

  	
  123

  
	
   

  	
  13.9.

  	
   

  	
  Counterparts

  	
  124

  
	
   

  	
  13.10.

  	
   

  	
  Severability

  	
  124

  
	
   

  	
  13.11.

  	
   

  	
  Integration

  	
  124

  
	
   

  	
  13.12.

  	
   

  	
  GOVERNING LAW

  	
  124

  
	
   

  	
  13.13.

  	
   

  	
  Submission to Jurisdiction; Waivers

  	
  124

  
	
   

  	
  13.14.

  	
   

  	
  Acknowledgments

  	
  125

  
	
   

  	
  13.15.

  	
   

  	
  WAIVERS OF JURY TRIAL

  	
  126

  
	
   

  	
  13.16.

  	
   

  	
  Confidentiality

  	
  126

  
	
   

  	
  13.17.

  	
   

  	
  Direct Website Communications

  	
  127

  
	
   

  	
  13.18.

  	
   

  	
  USA PATRIOT Act

  	
  128

  
	
   

  	
  13.19.

  	
   

  	
  Judgment Currency

  	
  129

  
	
   

  	
  13.20.

  	
   

  	
  Payments Set Aside

  	
  129

  
	
   

  	
  13.21.

  	
   

  	
  Acknowledgements Relating to the Closing Date

  	
  129

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 14.

  	
   

  	
  SUBORDINATION

  	
  130

  
	
   

  	
  14.1.

  	
   

  	
  Agreement To Subordinate

  	
  130

  
	
   

  	
  14.2.

  	
   

  	
  Liquidation, Dissolution or Bankruptcy

  	
  130

  
	
   

  	
  14.3.

  	
   

  	
  Default on Senior Indebtedness of the Borrower

  	
  130

  
	
   

  	
  14.4.

  	
   

  	
  Acceleration of Payment of Loans

  	
  132

  
	
   

  	
  14.5.

  	
   

  	
  When Distribution Must Be Paid Over

  	
  132

  
	
   

  	
  14.6.

  	
   

  	
  Subrogation

  	
  132

  
	
   

  	
  14.7.

  	
   

  	
  Relative Rights

  	
  132

  
	
   

  	
  14.8.

  	
   

  	
  Subordination May Not Be Impaired by Borrower

  	
  132

  
	
   

  	
  14.9.

  	
   

  	
  Rights of Administrative Agent and Paying Agent

  	
  132

  
	
   

  	
  14.10.

  	
   

  	
  Distribution or Notice to Representative

  	
  133

  
	
   

  	
  14.11.

  	
   

  	
  Section 14 Not To Prevent Events of Default or Limit Right To
  Accelerate

  	
  133

  
	
   

  	
  14.12.

  	
   

  	
  Subordination of Subsidiary Guarantees

  	
  133

  
	
   

  	
  14.13.

  	
   

  	
  Reliance by Lenders of Senior Indebtedness of the Borrower on
  Subordination Provisions

  	
  133

  



 


iv

















 


	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 1.1(a)

  	
   

  	
  Commitments

  
	
  Schedule 1.1(b)

  	
   

  	
  Debt Repayment

  
	
  Schedule 6.3

  	
   

  	
  Local Counsels

  
	
  Schedule 8.3

  	
   

  	
  Conflicts

  
	
  Schedule 8.4

  	
   

  	
  Litigation

  
	
  Schedule 8.12

  	
   

  	
  Subsidiaries

  
	
  Schedule 13.2

  	
   

  	
  Notice Addresses

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
   

  	
  Form of Senior Subordinated Guarantee*

  
	
  Exhibit B

  	
   

  	
  Form of Senior Subordinated Refinancing Indenture

  
	
  Exhibit C

  	
   

  	
  Form of Senior Subordinated Refinancing Registration Rights Agreement*

  
	
  Exhibit D

  	
   

  	
  Form of Exchange Notice*

  
	
  Exhibit E-1

  	
   

  	
  Form of Legal Opinion of Simpson Thacher & Bartlett
  LLP*

  
	
  Exhibit E-2

  	
   

  	
  Form of Legal Opinion of General Counsel*

  
	
  Exhibit F

  	
   

  	
  Form of Loan Party Closing Certificate*

  
	
  Exhibit G

  	
   

  	
  Form of Assignment and Acceptance*

  
	
  Exhibit H

  	
   

  	
  Form of Promissory Note*

  



 






* In the same form as those
Exhibits in the Original Senior Subordinated Loan Agreement.


 


v
















 


SENIOR SUBORDINATED LOAN AGREEMENT dated as
of September 24, 2007, as amended and restated as of October 24, 2007
(the “Amended and Restated Senior Subordinated Loan
Agreement”), among First Data Corporation, a Delaware corporation
(the “Company” or the “Borrower”),
the lending institutions from time to time parties hereto (each a “Lender” and, collectively, the “Lenders”),
CITIBANK, N.A., as Administrative Agent (such terms and each other capitalized
term used but not defined in this preamble having the meaning provided in Section 1),
CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as Syndication Agent, and CITIGROUP
GLOBAL MARKETS INC., CREDIT SUISSE SECURITIES (USA) LLC, DEUTSCHE BANK
SECURITIES INC., GOLDMAN SACHS CREDIT PARTNERS L.P., HSBC SECURITIES (USA)
INC., LEHMAN BROTHERS INC. and MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED, as Joint Lead Arrangers and Bookrunners.


 


WHEREAS, the Borrower, the Lenders party
thereto (the “Original Lenders”), Citibank,
N.A., as administrative agent, Credit Suisse, Cayman Islands Branch, as syndication agent and Citigroup
Global Markets Inc., Credit
Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., Goldman Sachs
Credit Partners L.P., HSBC Securities (USA) Inc., Lehman Brothers Inc. and
Merrill Lynch, Pierce, Fenner & Smith Incorporated, as joint
lead arrangers and bookrunners, originally entered into a senior subordinated
loan agreement on September 24, 2007 (the “Original
Senior Subordinated Loan Agreement”) and the parties hereto desire
to amend and restate the Original Senior Subordinated Loan Agreement on and
subject to the terms and conditions set forth herein;


 


WHEREAS, pursuant to the Agreement and Plan
of Merger (as amended from time to time in accordance therewith, the “Acquisition Agreement”), dated as of April 1, 2007, by
and among the Borrower, Holdings and Merger Sub, Merger Sub merged with and
into the Borrower (the “Merger”), with
the Borrower surviving the Merger as a Wholly Owned Subsidiary of Holdings;


 


WHEREAS, to fund, in part, the Merger, Affiliates
of Kohlberg Kravis Roberts & Co., L.P. and certain other investors
contributed an amount in cash to Holdings and/or a direct or indirect parent
thereof in exchange for Stock and Stock Equivalents (which cash was contributed
to the Borrower in exchange for common Stock of the Borrower) (such
contribution, the “Equity Investment”),
which was no less than 22.5% of the aggregate pro forma capitalization of the
Borrower on the Original Closing Date (the “Minimum
Equity Amount”);


 


WHEREAS, in connection with the foregoing,
the Lenders extended credit in the form of Senior Subordinated Interim Loans to
the Borrower on the Original Closing Date, in Dollars, in an aggregate
principal amount of $2,500,000,000;


 


WHEREAS, to consummate the transactions
contemplated by the Acquisition Agreement, the Borrower entered into (a) a
senior secured credit agreement, dated as of the Original Closing Date, by and
among the Borrower, the lenders from time to time parties thereto, Credit Suisse, Cayman Islands Branch, as
administrative agent, swingline lender and letter of credit issuer, Citibank,
N.A., as syndication agent, and Credit
Suisse Securities (USA) LLC, Citigroup Global Markets Inc., Deutsche Bank
Securities Inc., Goldman Sachs Credit Partners L.P., HSBC Securities (USA)
Inc., Lehman Brothers Inc. and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as joint lead arrangers and bookrunners, and the other
agents party thereto 


 

















 


(as the same may be amended, supplemented or
otherwise modified from time to time in accordance therewith, the “Senior  Secured Credit
Agreement”), pursuant
to which (i)(1) the Borrower borrowed term loans in an aggregate principal
amount of $11,775,000,000 and (2) a euro tranche term loan in an aggregate
principal amount of  €709,219,858.16 (together,
the “Senior Secured Original  Closing Date Term Loans”), (ii) the Borrower may borrow
term loans in an aggregate principal amount of up to $225,000,000 (the “Senior Secured Delayed Draw Term Loans”), (iii) the
Borrower may borrow revolving credit loans (the “Senior
Secured Revolving  Credit Loans”)  in
an aggregate principal amount of up to $2,000,000,000, (iv) the Borrower
may request letters of credit in an aggregate amount not to exceed $500,000,000
(which will reduce amounts available for Senior Secured Revolving Credit
Loans), and (b) a senior unsecured interim loan agreement, dated as of the
Original Closing Date, by and among the Borrower, the lenders from time to time
parties thereto, Citibank, N.A., as administrative agent, Credit Suisse, Cayman Islands Branch,
as syndication agent, and Citigroup
Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank
Securities Inc., Goldman Sachs Credit Partners L.P., HSBC Securities (USA)
Inc., Lehman Brothers Inc. and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as joint lead arrangers and bookrunners (as the same may
be amended, supplemented or otherwise modified from time to time in accordance
therewith, the “Senior  Unsecured Interim Loan Agreement”),
pursuant to which the Borrower borrowed senior unsecured loans in an aggregate
principal amount of $6,500,000,000, which initially consisted of (a) $3,750,000,000
of senior interim cash pay loans, $1,550,000,000 of which is outstanding as of
the Closing Date (the “Senior Interim Cash Pay
Loans”) and (b) $2,750,000,000 of senior interim PIK loans (the
“Senior
Interim PIK Loans” and,
together with the Senior Interim Cash Pay Loans, the “Senior Interim Loans”); and


 


WHEREAS, the net proceeds of the Senior
Subordinated Interim Loans were used by the Borrower, together with (a) the
net proceeds of the Senior Secured Original Closing Date Term Loans, the Senior
Secured Revolving Credit Loans drawn on the Original Closing Date and the
Senior Interim Loans and (b) the net proceeds of the Equity Investments,
on the Original Closing Date (or, in the case of the Debt Repayment, such later
date as may be necessary to effect the Debt Repayments in accordance with the
tender offers therefor) solely to effect the Merger, to effect the Debt
Repayments and to pay Transaction Expenses.


 


WHEREAS, the Borrower will issue under the
Senior Take-out Notes Indenture, dated as of October 24, 2007 among the
Borrower, the guarantors thereunder and Wells Fargo Bank, National Association,
as trustee (the “Senior Take-out Notes Indenture”),
$2,200,000,000 in aggregate principal amount of 97/8% senior notes due 2015 (the “Senior Take-out Notes”) pursuant to Rule 144A and Regulation S
under the Securities Act of 1933, as amended (the “Senior Take-out Notes Offering”).


 


WHEREAS, the parties hereto have agreed to
amend and restate the Original Senior Subordinated Loan Agreement in its
entirety to read as set forth in this Agreement, and it has been agreed by the
parties to the Original Senior Subordinated Loan Agreement that the Loans outstanding
as of the Closing Date and other “Obligations” under (and as defined herein)
the Original Senior Subordinated Loan Agreement (including indemnities) shall
be governed by and deemed to be outstanding under this Agreement with the intent
that the terms of this Agreement shall supersede the terms of the Original
Senior Subordinated Loan Agreement (which shall 


 


2

















 


hereafter have no further effect upon the
parties thereto other than with respect to any action, event, representation,
warranty or covenant occurring, made or applying prior to the Closing Date),
and all references to the Original Senior Subordinated Loan Agreement in any
Loan Document or other document or instrument delivered in connection therewith
shall be deemed to refer to this Agreement and the provisions hereof and (2) it
is agreed and understood that this Agreement does not constitute a novation,
satisfaction, payment or reborrowing of any Obligation under the Original Senior
Subordinated Loan Agreement or any other Loan Document except as expressly
modified by this Agreement, nor does it operate as a waiver of any right, power
or remedy of any Lender under any Loan Document (other than the Original Senior
Subordinated Loan Agreement);


 


NOW, THEREFORE, the parties hereto hereby
agree to amend and restate the Original Senior Subordinated Loan Agreement, and
the Original Senior Subordinated Loan Agreement is hereby amended and restated
in its entirety as follows:


 


SECTION 1.                                          Definitions


 


1.1.                                   Defined
Terms.


 


(a)                                  As used herein, the
following terms shall have the meanings specified in this Section 1.1
unless the context otherwise requires (it being understood that defined terms
in this Agreement shall include in the singular number the plural and in the
plural the singular):


 


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


 


“ABR Loan” shall
mean each Loan bearing interest based on the ABR.


 


“Acceptable Commitment”
shall have the meaning provided in Section 9.8(b).


 


“Acquired Indebtedness” shall mean, with respect to any
specified Person,


 


(1)                                  Indebtedness
of any other Person existing at the time such other Person is merged with or
into or became a Restricted Subsidiary of such specified Person, including
Indebtedness incurred in connection with, or in contemplation of, such other
Person merging with or into or becoming a Restricted Subsidiary of such
specified Person, and


 


(2)                                  Indebtedness
secured by a Lien encumbering any asset acquired by such specified Person.


 


3

















 


“Acquisition Agreement”
shall have the meaning provided in the preamble to this Agreement.


 


“Administrative Agent”
shall mean Citibank, N.A., as the administrative agent for the Lenders under
this Agreement and the other Loan Documents, or any successor administrative
agent pursuant to Section 12.


 


“Administrative Agent’s
Office” shall mean the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 13.2 or such other address
or account as the Administrative Agent may from time to time notify to the
Borrower and the Lenders.


 


“Administrative
Questionnaire” shall have the meaning provided in Section 13.6(b)(ii)(D).


 


“Affiliate”
shall mean, with respect to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with
such Person.  A Person shall be deemed to
control another Person if such Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of such
other Person, whether through the ownership of voting securities, by contract
or otherwise.


 


“Agent Parties”
shall have the meaning provided in Section 13.17(c).


 


“Agents” shall
mean the Administrative Agent, the Syndication Agent, and each Joint Lead
Arranger and Bookrunner.


 


“Agreement”
shall mean this Amended and Restated Senior Subordinated Loan Agreement, as the
same may from time to time be further amended, restated or otherwise modified
and in effect on such date in accordance with the terms hereof.


 


“Agreement Currency”
shall have the meaning provided in Section 13.19.


 


 “Applicable
ABR Margin” shall
mean at any date, with respect to each ABR Loan, 3.75% per annum. 
If the Loans are not paid within the six-month period following the
Original Closing Date, the Applicable ABR Margin will increase by 0.50% per annum at the end of such six-month
period and shall increase by an additional 0.50% per annum at the end of each three-month period thereafter
until the Interim Loan Conversion Date. 
At the Interim Loan Conversion Date the Applicable ABR Margin will
increase by 0.25% per annum and shall increase by
an additional 0.25% per annum at
the end of each three-month period thereafter until the Term Loan Maturity
Date.  Notwithstanding the foregoing, the
Applicable ABR Margin shall be capped such that the applicable interest rate
shall not exceed the Senior Subordinated Fixed Rate.


 


“Applicable Commitment”
shall have the meaning provided in Section 9.8(b).


 


“Applicable LIBOR Margin”
shall mean at any date, with respect to each LIBOR Loan, 4.75% per annum.  If the Loans are not paid within the
six-month period following the Original Closing Date, the Applicable LIBOR
Margin will increase by 0.50% per annum at
the end of such six-month period and shall increase by an additional 0.50% per annum at the end 


 


4

















 


of each three-month period thereafter until
the Interim Loan Conversion Date.  At the
Interim Loan Conversion Date, the Applicable LIBOR Margin will increase by
0.25% per annum and shall increase by an
additional 0.25% per annum at the end of each
three-month period thereafter until the Term Loan Maturity Date.  Notwithstanding the foregoing, the Applicable
LIBOR Margin shall be capped such that the applicable interest rate shall not
exceed the Senior Subordinated Fixed Rate.


 


“Approved Fund”
shall mean any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers
or manages a Lender.


 


“Asset Sale”
shall mean:


 


(1)                                  the
sale, conveyance, transfer or other disposition, whether in a single
transaction or a series of related transactions, of property or assets
(including by way of a Sale and Lease-Back Transaction) of the Borrower or any
of its Restricted Subsidiaries (each referred to in this definition as a “disposition”);
or


 


(2)                                  the
issuance or sale of Equity Interests of any Restricted Subsidiary, whether in a
single transaction or a series of related transactions (other than Preferred
Stock of Restricted Subsidiaries issued in compliance with Section 9.7
hereof);


 


in each case,
other than:


 


(a)                                  any
disposition of Cash Equivalents or Investment Grade Securities or obsolete or
worn out equipment in the ordinary course of business or any disposition of inventory
or goods (or other assets) no longer used in the ordinary course of business;


 


(b)                                 the
disposition of all or substantially all of the assets of the Borrower in a
manner permitted pursuant to the provisions described under Section 9.14
hereof or any disposition that constitutes a Change of Control pursuant to this
Agreement;


 


(c)                                  the
making of any Restricted Payment or Permitted Investment that is permitted to
be made, and is made, under Section 9.5 hereof;


 


(d)                                 any
disposition of assets or issuance or sale of Equity Interests of any Restricted
Subsidiary in any transaction or series of related transactions with an
aggregate fair market value of less than $50.0 million;


 


(e)                                  any
disposition of property or assets or issuance of securities by a Restricted
Subsidiary of the Borrower to the Borrower or by the Borrower or a Restricted
Subsidiary of the Borrower to another Restricted Subsidiary of the Borrower;


 


(f)                                    to
the extent allowable under Section 1031 of the Code or any comparable or
successor provision, any exchange of like property (excluding any boot thereon)
for use in a Similar Business;


 


5

















 


(g)                                 the
lease, assignment or sublease of any real or personal property in the ordinary
course of business;


 


(h)                                 any
issuance or sale of Equity Interests in, or Indebtedness or other securities
of, an Unrestricted Subsidiary;


 


(i)                                     foreclosures,
condemnation or any similar action on assets or the granting of Liens not
prohibited by this Agreement;


 


(j)                                     sales
of accounts receivable, or participations therein, in connection with any Receivables
Facility;


 


(k)                                  the
sale or discount of inventory, accounts receivable or notes receivable in the
ordinary course of business or the conversion of accounts receivable to notes receivable;


 


(l)                                     any
financing transaction with respect to property built or acquired by the Borrower
or any Restricted Subsidiary after the Closing Date, including Sale and
Lease-Back Transactions and asset securitizations permitted by this Agreement;


 


(m)                               dispositions
in the ordinary course of business, including disposition in connection with
any Settlement and dispositions of Settlement Assets and Merchant Agreements;


 


(n)                                 sales,
transfers and other dispositions of Investments in joint ventures and Merchant
Acquisition and Processing Alliances to the extent required by, or made pursuant
to, customary buy/sell arrangements between the joint venture parties set forth
in joint venture arrangements and similar binding arrangements;


 


(o)                                 sales,
transfers and other dispositions of Investments in Merchant Acquisition and
Processing Alliances (regardless of the form of legal entity) relating to any equity
reallocation in connection with an asset or equity contribution; and


 


(p)                                 any
issuance or sale of Equity Interests of any Restricted Subsidiary to any Person
operating in a Similar Business for which such Restricted Subsidiary provides
shared purchasing, billing, collection or similar services in the ordinary
course of business.


 


“Assignment and Acceptance”
shall mean an assignment and acceptance substantially in the form of Exhibit G,
or such other form as may be approved by the Administrative Agent.


 


“Authorized Officer”
shall mean the Chief Executive Officer, President, the Chief Financial Officer,
the Treasurer, the Vice President-Finance or any other senior officer of the
Borrower designated as such in writing to the Administrative Agent by the
Borrower.


 


“Bankruptcy Code”
shall mean Title 11 of the United States Code, as amended.


 


6

















 


“Bankruptcy Law”
shall mean the Bankruptcy Code and any similar federal, state or foreign law
for the relief of debtors.


 


“benefited Lender”
shall have the meaning provided in Section 13.8(a).


 


“Blockage Notice”
shall have the meaning provided in Section 14.3.


 


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


 


“Borrower” shall
have the meaning provided in the preamble to this Agreement.


 


“Borrowing”
shall mean and include the incurrence of the Loans on the Original Closing Date
(or resulting from conversions on a given date after the Original Closing Date)
having, in the case of LIBOR Loans, the same Interest Period.


 


“Business Day”
shall mean any day excluding Saturday, Sunday and any other day on which
banking institutions in New York City are authorized by law or other governmental
actions to close, and, if such day relates to any interest rate settings as to
a LIBOR Loan, any fundings, disbursements, settlements and payments in Dollars
in respect of any such LIBOR Loan, or any other dealings in Dollars to be
carried out pursuant to this Agreement in respect of any such LIBOR Loan, such
day shall be a day on which dealings in deposits in Dollars are conducted by
and between banks in the London interbank eurodollar market.


 


“Capital Lease”
shall mean, as applied to any Person, any lease of any property (whether real,
personal or mixed) by that Person as lessee that, in conformity with GAAP, is,
or is required to be, accounted for as a capital lease on the balance sheet of
that Person.


 


“Capital
Stock” shall mean:


 


(1)                                  in the case of a corporation, corporate
stock;


 


(2)                                  in the case of an association or business
entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock;


 


(3)                                  in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited); and


 


(4)                                  any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.


 


“Capitalized Lease
Obligations” shall mean, as applied to any Person, all obligations
under Capital Leases of such Person or any of its Subsidiaries, in each case
taken at the amount thereof accounted for as liabilities in accordance with
GAAP.


 


“Capitalized Software
Expenditures” shall mean, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities) by a Person and
its Restricted Subsidiaries during such period in respect of purchased software
or internally developed software 


 


7

















 


and software enhancements that, in conformity
with GAAP, are or are required to be reflected as capitalized costs on the
consolidated balance sheet of a Person and its Restricted Subsidiaries.


 


“Cash Equivalents”
shall mean:


 


(1)                                  United
States dollars;


 


(2)                                  euros
or any national currency of any participating member state of the EMU or such
local currencies held by the Borrower and its Restricted Subsidiaries from time
to time in the ordinary course of business;


 


(3)                                  securities
issued or directly and fully and unconditionally guaranteed or insured by the
U.S. government (or any agency or instrumentality thereof the securities of
which are unconditionally guaranteed as a full faith and credit obligation of
the U.S. government) with maturities of 24 months or less from the date of
acquisition;


 


(4)                                  certificates
of deposit, time deposits and eurodollar time deposits with maturities of one
year or less from the date of acquisition, bankers’ acceptances with maturities
not exceeding one year and overnight bank deposits, in each case with any commercial
bank having capital and surplus of not less than $500.0 million in the
case of U.S. banks and $100.0 million (or the U.S. dollar equivalent as of the
date of determination) in the case of non-U.S. banks;


 


(5)                                  repurchase
obligations for underlying securities of the types described in clauses (3) and
(4) entered into with any financial institution meeting the
qualifications specified in clause (4) above;


 


(6)                                  commercial
paper rated at least P-1 by Moody’s or at least A-1 by S&P and in each case
maturing within 24 months after the date of creation thereof;


 


(7)                                  marketable
short-term money market and similar securities having a rating of at least P-2
or A-2 from either Moody’s or S&P, respectively (or, if at any time neither
Moody’s nor S&P shall be rating such obligations, an equivalent rating from
another Rating Agency), and in each case maturing within 24 months after
the date of creation thereof;


 


(8)                                  readily
marketable direct obligations issued by any state, commonwealth or territory of
the United States or any political subdivision or taxing authority thereof
having an Investment Grade Rating from either Moody’s or S&P with
maturities of 24 months or less from the date of acquisition;


 


(9)                                  Indebtedness
or Preferred Stock issued by Persons with a rating of A or higher from S&P
or A2 or higher from Moody’s with maturities of 24 months or less from the
date of acquisition;


 


8

















 


(10)                            Investments
with average maturities of 24 months or less from the date of acquisition in
money market funds rated AAA- (or the equivalent thereof) or better by S&P
or Aaa3 (or the equivalent thereof) or better by Moody’s; and


 


(11)                            investment
funds investing 95% of their assets in securities of the types described in clauses
(1) through (10) above.


 


Notwithstanding the foregoing, Cash
Equivalents shall include amounts denominated in currencies other than those
set forth in clauses (1) and (2) above; provided
that such amounts are converted into any currency listed in clauses (1) and
(2) as promptly as practicable and in any event within ten Business
Days following the receipt of such amounts.


 


“Casualty Event”
shall mean, with respect to any property of any Person, any loss of or damage
to, or any condemnation or other taking by a Governmental Authority of, such
property for which such Person or any of its Restricted Subsidiaries receives
insurance proceeds, or proceeds of a condemnation award or other compensation.


 


“Change in Law”
shall mean (a) the adoption of any law, treaty, order, policy, rule or
regulation after the Original Closing Date, (b) any change in any law,
treaty, order, policy, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the Original Closing
Date or (c) compliance by any Lender with any guideline, request,
directive or order issued or made after the Original Closing Date by any
central bank or other governmental or quasi-governmental authority (whether or
not having the force of law).


 


“Change of Control”
shall mean the occurrence of any of the following:


 


(1)                                  the
sale, lease or transfer, in one or a series of related transactions, of all or
substantially all of the assets of the Borrower and its Subsidiaries, taken as
a whole, to any Person other than a Permitted Holder; or


 


(2)                                  the Borrower becomes
aware (by way of a report or any other filing pursuant to Section 13(d) of
the Exchange Act, proxy, vote, written notice or otherwise) of the acquisition
by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of
the Exchange Act, or any successor provision), including any group acting for
the purpose of acquiring, holding or disposing of securities (within the
meaning of Rule 13d-5(b)(1) under the Exchange Act or any successor
provision), other than the Permitted Holders, in a single transaction or in a
series of related transactions, by way of merger, consolidation or other
business combination or purchase of beneficial ownership (within the meaning of
Rule 13d-3 under the Exchange Act, or any successor provision) of 50% or
more of the total voting power of the Voting Stock of the Borrower or any of
its direct or indirect parent companies holding directly or indirectly 100% of
the total voting power of the Voting Stock of the Borrower.


 


“Change of Control Offer”
shall have the meaning provided in Section 9.12(a).


 


“Change of
Control Prepayment” shall have the meaning provided in Section 9.12(a).


 


9

















 


“Change of Control
Prepayment Date” shall have the meaning provided in Section 9.12(a)(2).


 


“Closing Date”
shall mean October 24, 2007.


 


“Code” shall
mean the Internal Revenue Code of 1986, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.  Section references to the Code are to
the Code, as in effect at the Original Closing Date, and any subsequent
provisions of the Code, amendatory thereof, supplemental thereto or substituted
therefor.


 


“Commitments”
shall mean, with respect to each Lender (to the extent applicable), such Lender’s
Senior Subordinated Interim Loan Commitment.


 


“Committed Lenders”
shall mean Citibank, N.A., Credit Suisse, Cayman Islands Branch, Deutsche Bank
AG Cayman Islands Branch, Goldman Sachs Credit Partners L.P., HSBC Bank USA,
National Association, Lehman Brothers Commercial Bank, Lehman Commercial Paper
Inc. and Merrill Lynch, Capital Corporation.


 


“Communications”
shall have the meaning provided in Section 13.17(a).


 


“Confidential Information”
shall have the meaning provided in Section 13.16.


 


“Consolidated Depreciation
and Amortization Expense” shall mean with respect to any Person for
any period, the total amount of depreciation and amortization expense,
including the amortization of deferred financing fees, debt issuance costs,
commissions, fees and expenses and Capitalized Software Expenditures, customer
acquisition costs and incentive payments, conversion costs, contract
acquisition costs, and amortization of unrecognized prior service costs and
actuarial gains and losses related to pension and other post-employment benefits,
of such Person and its Restricted Subsidiaries for such period on a
consolidated basis and otherwise determined in accordance with GAAP.


 


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


 


(1)                                  consolidated
interest expense of such Person and its Restricted Subsidiaries for such
period, to the extent such expense was deducted (and not added back) in
computing Consolidated Net Income (including (a) amortization of original
issue discount resulting from the issuance of Indebtedness at less than par, (b) all
commissions, discounts and other fees and charges owed with respect to letters
of credit or bankers’ acceptances, (c) non-cash interest expense (but
excluding any non-cash interest expense attributable to the movement in the
mark to market valuation of Hedging Obligations or other derivative instruments
pursuant to GAAP), (d) the interest component of Capitalized Lease
Obligations, and (e) net payments, if any, pursuant to interest rate
Hedging Obligations with respect to Indebtedness, and excluding (t) penalties
and interest relating to taxes, (u) accretion or accrual of discounted
liabilities not constituting Indebtedness, (v) any expense resulting from
the discounting of obligations in connection with the application of
recapitalization accounting or purchase accounting, (w) “additional interest”



 


10

















 


with respect
to the Senior Subordinated Refinancing Registration Rights Agreement and the
Registration Rights Agreement relating to the Senior Take-out Notes and any
comparable “additional interest” with respect to other securities, (x) amortization
of deferred financing fees, debt issuance costs, commissions, fees and
expenses, (y) any expensing of bridge, commitment and other financing fees
and (z) commissions, discounts, yield and other fees and charges
(including any interest expense) related to any Receivables Facility); plus


 


(2)                                  consolidated
capitalized interest of such Person and its Restricted Subsidiaries for such
period, whether paid or accrued; less


 


(3)                                  interest
income for such period.


 


For purposes of this definition, interest on
a Capitalized Lease Obligation shall be deemed to accrue at an interest rate
reasonably determined by such Person to be the rate of interest implicit in
such Capitalized Lease Obligation in accordance with GAAP.


 


“Consolidated Leverage
Ratio,” with respect to any Person as of any date of determination,
shall mean the ratio of (x) Consolidated Total Indebtedness of such
Person, less the aggregate amount of cash and Cash Equivalents held (free and
clear of all Liens, other than Liens permitted under Section 9.10
hereof, other than clause (20) of the definition of Permitted Liens) by (A) the
Borrower and its Restricted Subsidiaries (other than settlement assets as shown
on the balance sheet of such Person) and (B) any Joint Venture (other than
settlement assets as shown on the balance sheet of such Person) in an amount
corresponding to the Borrower’s or any Restricted Subsidiary’s, as applicable,
proportionate share thereof, based on its ownership of such Joint Venture’s
voting stock, computed as of the end of the most recent fiscal quarter for
which internal financial statements are available immediately preceding the
date on which such event for which such calculation is being made shall occur
to (y) the aggregate amount of EBITDA of such Person for the period of the
most recently ended four full consecutive fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
event for which such calculation is being made shall occur, in each case with
such pro forma adjustments to Consolidated
Total Indebtedness and EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition
of “Fixed Charge Coverage Ratio.”


 


“Consolidated Net Income”
shall mean, with respect to any Person for any period, the aggregate of the Net
Income of such Person for such period, on a consolidated basis, and otherwise
determined in accordance with GAAP; provided, however, that,
without duplication,


 


(1)                                  any
after-tax effect of extraordinary, non-recurring or unusual gains or losses
(less all fees and expenses relating thereto) or expenses (including relating
to the Transaction or the Senior Take-out Notes Offering to the extent incurred
on or prior to September 30, 2008 and litigation and regulatory
settlements), severance, relocation costs, consolidation and closing costs,
integration and facilities opening costs, spin-off costs, business optimization
costs and expenses (including data center consolidation initiatives and other
costs relating to initiatives aimed at profitability improvements), transition 


 


11

















 


costs,
restructuring costs, charges or reserves, signing, retention or completion bonuses,
and curtailments or modifications to pension and post-retirement employee
benefit plans shall be excluded,


 


(2)                                  the
cumulative effect of a change in accounting principles during such period shall
be excluded,


 


(3)                                  any
after-tax effect of income (loss) from disposed, abandoned or discontinued
operations and any net after-tax gains or losses on disposal of disposed, abandoned,
transferred, closed or discontinued operations shall be excluded,


 


(4)                                  any
after-tax effect of gains or losses (less all fees and expenses relating
thereto) attributable to asset dispositions or abandonments other than in the
ordinary course of business, as determined in good faith by the Borrower, shall
be excluded,


 


(5)                                  the
Net Income for such period of any Person that is an Unrestricted Subsidiary
shall be excluded, and, solely for the purpose of determining the amount
available for Restricted Payments under clause 3(a) of Section 9.5(a) hereof,
the Net Income for such period of any Person that is not a Subsidiary or that
is accounted for by the equity method of accounting shall be excluded; provided
that Consolidated Net Income of the Borrower shall be increased by the amount
of dividends or distributions or other payments that are actually paid in cash
(or to the extent converted into cash) to the referent Person or a Restricted
Subsidiary thereof in respect of such period,


 


(6)                                  solely
for the purpose of determining the amount available for Restricted Payments
under clause (3)(a) of Section 9.5(a) hereof,
the Net Income for such period of any Restricted Subsidiary (other than any
Guarantor) shall be excluded to the extent that the declaration or payment of
dividends or similar distributions by that Restricted Subsidiary of its Net
Income is not at the date of determination wholly permitted without any prior
governmental approval (which has not been obtained) or, directly or indirectly,
is otherwise restricted by the operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule, or governmental
regulation applicable to that Restricted Subsidiary or its stockholders, unless
such restriction with respect to the payment of dividends or similar
distributions has been legally waived; provided that Consolidated Net
Income of the Borrower will be increased by the amount of dividends or other
distributions or other payments actually paid in cash (or to the extent converted
into cash) or Cash Equivalents to the Borrower or a Restricted Subsidiary
thereof in respect of such period, to the extent not already included therein,


 


(7)                                  effects
of adjustments (including the effects of such adjustments pushed down to the
Borrower and its Restricted Subsidiaries) in such Person’s consolidated financial
statements pursuant to GAAP resulting from the application of recapitalization
accounting or purchase accounting in relation to the Transaction or any
consummated acquisition or the amortization or write-off of any amounts
thereof, net of taxes, shall be excluded,


 


12
















 


(8)                                  any
effect of income (loss) from the early extinguishment of Indebtedness shall be
excluded,


 


(9)                                  the
mark-to-market effects on Net Income during the period of any derivatives or
similar financial instruments, including the ineffective portion of Hedging Obligations
(other than such effects settled in cash) shall be excluded,


 


(10)                            any
impairment charge or asset write-off or write-down, including, without limitation,
impairment charges or asset write-offs related to intangible assets, long-lived
assets or investments in debt and equity securities, in each case, pursuant to
GAAP and the amortization of intangibles arising pursuant to GAAP shall be
excluded,


 


(11)                            any
non-cash compensation charge or expense, including any such charge arising from
grants of stock appreciation or similar rights, stock options, restricted stock
or other rights, and any cash charges associated with the rollover,
acceleration or payout of Equity Interests by management of the Borrower or any
of its direct or indirect parent companies in connection with the Transaction,
shall be excluded,


 


(12)                            any
fees and expenses incurred during such period, or any amortization thereof for
such period, in connection with any acquisition, Investment, Asset Sale, issuance
or repayment of Indebtedness, issuance of Equity Interests, refinancing
transaction or amendment or modification of any debt instrument (in each case,
including any such transaction consummated prior to the Closing Date and any
such transaction undertaken but not completed) and any charges or non-recurring
merger costs incurred during such period as a result of any such transaction
shall be excluded,


 


(13)                            accruals
and reserves that are established or adjusted within twelve months after the
Original Closing Date that are so required to be established as a result of the
Transaction in accordance with GAAP, or changes as a result of adoption or
modification of accounting policies, shall be excluded, and


 


(14)                            to the
extent covered by insurance and actually reimbursed, or, so long as the
Borrower has made a determination that there exists reasonable evidence that
such amount will in fact be reimbursed by the insurer and only to the extent
that such amount is (a) not denied by the applicable carrier in writing
within 180 days and (b) in fact reimbursed within 365 days of the date of
such evidence (with a deduction for any amount so added back to the extent not
so reimbursed within 365 days), expenses with respect to liability or casualty
events or business interruption shall be excluded.


 


Notwithstanding the foregoing, for the
purpose of Section 9.5 hereof only (other than clause (3)(d) of
Section 9.5(a) hereof), there shall be excluded from
Consolidated Net Income any income arising from any sale or other disposition
of Restricted Investments made by the Borrower and its Restricted Subsidiaries,
any repurchases and redemptions of Restricted Investments from the Borrower and
its Restricted Subsidiaries, any repayments of loans and advances which
constitute Restricted Investments by the Borrower or any of its Restricted
Subsidiaries, any sale of the stock of an Unrestricted Subsidiary or any
distribution or dividend from an Unrestricted Subsidiary, in each case only to
the extent such amounts increase the amount of Restricted 


 


13

















 


Payments permitted under clause (3)(d) of
Section 9.5(a) hereof. 
Furthermore, there shall be excluded from Consolidated Net Income any
net income (losses) attributable to Integrated Payment Systems Inc. and Integrated
Payment Systems Canada Inc.


 


“Consolidated Total
Indebtedness” shall mean, as at any date of determination, an amount
equal to the sum of (1) the aggregate amount of all outstanding
Indebtedness of the Borrower and its Restricted Subsidiaries on a consolidated
basis consisting of Indebtedness for borrowed money, Obligations in respect of
Capitalized Lease Obligations and debt obligations evidenced by promissory
notes and similar instruments (and excluding, for the avoidance of doubt, all
obligations relating to Receivables Facilities) and (2) the aggregate
amount of all outstanding Disqualified Stock of the Borrower and all
Disqualified Stock and Preferred Stock of its Restricted Subsidiaries on a
consolidated basis, with the amount of such Disqualified Stock and Preferred
Stock equal to the greater of their respective voluntary or involuntary
liquidation preferences and maximum fixed repurchase prices, in each case
determined on a consolidated basis in accordance with GAAP.  For purposes hereof, the “maximum fixed
repurchase price” of any Disqualified Stock or Preferred Stock that does not
have a fixed repurchase price shall be calculated in accordance with the terms
of such Disqualified Stock or Preferred Stock as if such Disqualified Stock or
Preferred Stock were purchased on any date on which Consolidated Total Indebtedness
shall be required to be determined pursuant to this Agreement, and if such
price is based upon, or measured by, the fair market value of such Disqualified
Stock or Preferred Stock, such fair market value shall be determined reasonably
and in good faith by the Borrower.


 


“Contingent Obligations”
shall mean, with respect to any Person, any obligation of such Person
guaranteeing any leases, dividends or other obligations that do not constitute
Indebtedness (“primary obligations”) of any other Person (the “primary obligor”)
in any manner, whether directly or indirectly, including, without limitation,
any obligation of such Person, whether or not contingent,


 


(1)                                  to
purchase any such primary obligation or any property constituting direct or indirect
security therefor,


 


(2)                                  to
advance or supply funds


 


(a)                                  for the purchase or
payment of any such primary obligation, or


 


(b)                                 to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, or


 


(3)                                  to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation against loss in respect thereof.


 


“Contractual Requirement”
shall have the meaning provided in Section 8.3.


 


“Credit Event”
shall mean and include the making (but not the conversion or continuation) of
the Loans on the Original Closing Date.


 


14

















 


“Credit Facilities”
shall mean, with respect to the Borrower or any of its Restricted Subsidiaries,
one or more debt facilities, including the Senior Secured Credit Agreement, or
other financing arrangements (including, without limitation, commercial paper
facilities or indentures) providing for revolving credit loans, term loans,
letters of credit or other long-term indebtedness, including any notes,
mortgages, guarantees, collateral documents, instruments and agreements
executed in connection therewith, and any amendments, supplements,
modifications, extensions, renewals, restatements or refundings thereof and any
indentures or credit facilities or commercial paper facilities that replace,
refund or refinance any part of the loans, notes, other credit facilities or
commitments thereunder, including any such replacement, refunding or refinancing
facility or indenture that increases the amount permitted to be borrowed
thereunder or alters the maturity thereof (provided that such increase in borrowings is permitted under
Section 9.7 hereof) or adds Restricted Subsidiaries as additional
borrowers or guarantors thereunder and whether by the same or any other agent,
lender or group of lenders.


 


“Credit Suisse”
shall mean Credit Suisse, Cayman Islands Branch and its successors.


 


“Debt Incurrence Prepayment
Event” shall mean any issuance or incurrence by the Borrower or any
of the Restricted Subsidiaries of any Indebtedness (excluding any Indebtedness
permitted to be issued or incurred under Section 9.7(b) other
than, in the case of Section 9.7(b)(2) or 9.7(b)(13),
with respect to any refinancing of Senior Subordinated Indebtedness incurred
under Section 9.7(b)(2)).


 


“Debt Repayment” shall mean the repayment,
prepayment, repurchase or defeasance of the Indebtedness of the Borrower that
is identified on Schedule 1.1(b) and that is repaid, prepaid,
repurchased or defeased on the Original Closing Date (or such later date as may
be necessary to effect the Debt Repayment in accordance with the tender offers
therefor).


 


“Declined Proceeds”
shall have the meaning provided in Section 5.2(h).


 


“Default” shall
mean any event, act or condition that with notice or lapse of time, or both,
would constitute an Event of Default.


 


“Defaulting Lender”
shall mean any Lender with respect to which a Lender Default is in effect.


 


“Deferred Net Cash Proceeds”
shall have the meaning provided such term in the definition of “Net Cash
Proceeds.”


 


“Deferred Net Cash Proceeds
Payment Date” shall have the meaning provided such term in the
definition of “Net Cash Proceeds.”


 


“Designated Senior
Indebtedness”  shall
mean:


 


(1)                                  any
Indebtedness outstanding under the Senior Secured Credit Agreement; and


 


15

















 


(2)                                  any
other Senior Indebtedness permitted under this Agreement, the principal amount
of which is $100.0 million or more and that has been designated by the Borrower
as “Designated Senior Indebtedness.”


 


“Designated
Non-cash Consideration” shall mean the fair market value of non-cash
consideration received by the Borrower or a Restricted Subsidiary in connection
with an Asset Sale that is so designated as Designated Non-cash Consideration
pursuant to an Officer’s Certificate, setting forth the basis of such
valuation, executed by the principal financial officer of the Borrower, less
the amount of cash or Cash Equivalents received in connection with a subsequent
sale of or collection on such Designated Non-cash Consideration.


 


“Designated
Preferred Stock” shall mean Preferred Stock of the Borrower or any
parent company thereof (in each case other than Disqualified Stock) that is
issued for cash (other than to a Restricted Subsidiary or an employee stock
ownership plan or trust established by the Borrower or any of its Subsidiaries)
and is so designated as Designated Preferred Stock, pursuant to an Officer’s
Certificate executed by the principal financial officer of the Borrower or the
applicable parent company thereof, as the case may be, on the issuance date
thereof, the cash proceeds of which are excluded from the calculation set forth
in clause (3) of Section 9.5(a) hereof.


 


“Disqualified Stock”
shall mean, with respect to any Person, any Capital Stock of such Person which,
by its terms, or by the terms of any security into which it is convertible or
for which it is putable or exchangeable, or upon the happening of any event,
matures or is mandatorily redeemable (other than solely as a result of a change
of control or asset sale) pursuant to a sinking fund obligation or otherwise,
or is redeemable at the option of the holder thereof (other than solely as a
result of a change of control or asset sale), in whole or in part, in each case
prior to the date 91 days after the earlier of the Term Loan Maturity Date or
the date the Loans are no longer outstanding; provided, however,
that if such Capital Stock is issued to any plan for the benefit of employees
of the Borrower or its Subsidiaries or by any such plan to such employees, such
Capital Stock shall not constitute Disqualified Stock solely because it may be
required to be repurchased by the Borrower or its Subsidiaries in order to
satisfy applicable statutory or regulatory obligations.


 


“Dollars” and “$” shall mean dollars in lawful currency of the United
States of America.


 


“Domestic
Subsidiary” shall mean each Subsidiary of the Borrower that is organized
under the laws of the United States, any state thereof, or the District of
Columbia.


 


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


 


(1)                                  increased
(without duplication) by:


 


(a)                                  provision for taxes
based on income or profits or capital gains, including, without limitation,
foreign, federal, state, franchise and similar taxes (such as the Pennsylvania
capital tax) and foreign withholding taxes (including 


 


16

















 


penalties and
interest related to such taxes or arising from tax examinations) of such Person
paid or accrued during such period deducted (and not added back) in computing
Consolidated Net Income; plus


 


(b)                                 Fixed Charges of such
Person for such period (including (x) net losses on Hedging Obligations or
other derivative instruments entered into for the purpose of hedging interest
rate risk and (y) costs of surety bonds in connection with financing
activities, in each case, to the extent included in Fixed Charges), together
with items excluded from the definition of “Consolidated Interest Expense”
pursuant to clauses (1)(t), (u), (v), (w), (x),
(y) and (z) of the definition thereof, and, in each
such case, to the extent the same were deducted (and not added back) in calculating
such Consolidated Net Income; plus


 


(c)                                  Consolidated
Depreciation and Amortization Expense of such Person for such period to the
extent the same was deducted (and not added back) in computing Consolidated Net
Income; plus


 


(d)                                 any expenses or
charges (other than depreciation or amortization expense) related to any Equity
Offering, Permitted Investment, acquisition, disposition, recapitalization or
the incurrence of Indebtedness(and any amendment or modification to any such
transaction) permitted to be incurred by this Agreement (including a
refinancing thereof) (whether or not successful), including (i) such fees,
expenses or charges related to this Agreement, the Senior Unsecured Interim
Loan Agreement, the Senior Secured Credit Agreement, the Senior Take out Notes
Offering and any other refinancings of Senior Interim Loans or Senior Subordinated
Interim Loans and (ii) any amendment or other modification of the Senior
Subordinated Interim Loans, and, in each case, deducted (and not added back) in
computing Consolidated Net Income; plus


 


(e)                                  any other non-cash
charges, including any write-offs or write-downs, reducing Consolidated Net
Income for such period (provided that if any such non-cash charges
represent an accrual or reserve for potential cash items in any future period,
the cash payment in respect thereof in such future period shall be subtracted
from EBITDA to such extent, and excluding amortization of a prepaid cash item
that was paid in a prior period); plus


 


(f)                                    the amount of any
minority interest expense consisting of income attributable to minority equity
interests of third parties deducted (and not added back) in such period in
calculating Consolidated Net Income; plus


 


(g)                                 the amount of
management, monitoring, consulting and advisory fees and related expenses paid
in such period to the Investors to the extent otherwise permitted under Section 9.9
hereof; plus


 


(h)                                 the amount of net cost
savings and net cash flow effect of revenue enhancements related to new
agreements, or amendments to existing agreements, with customers or joint
ventures, projected by the Borrower in good faith to be realized 


 


17

















 


as a result of
specified actions taken or to be taken (calculated on a pro forma basis as though such cost
savings and revenue enhancements had been realized on the first day of such
period), net of the amount of actual benefits realized during such period from
such actions; provided
that (x) such cost savings and enhancements are reasonably identifiable
and factually supportable, (y) such actions have been taken or are to be
taken within 12 months after the date of determination to take such action and (z) no
cost savings or revenue enhancements shall be added pursuant to this clause (h) to
the extent duplicative of any expenses or charges relating to such cost savings
that are included in clause (e) above with respect to such period
(which adjustments may be incremental to pro
forma adjustments made pursuant to the second paragraph of the
definition of “Fixed Charge Coverage Ratio”); plus


 


(i)                                     the amount of loss
on sales of receivables and related assets to the Receivables Subsidiary in
connection with a Receivables Facility; plus


 


(j)                                     any costs or
expense incurred by the Borrower or a Restricted Subsidiary pursuant to any
management equity plan or stock option plan or any other management or employee
benefit plan or agreement or any stock subscription or shareholder agreement,
to the extent that such cost or expenses are funded with cash proceeds
contributed to the capital of the Borrower or net cash proceeds of an issuance
of Equity Interests of the Borrower (other than Disqualified Stock) solely to
the extent that such net cash proceeds are excluded from the calculation set
forth in clause (3) of Section 9.5(a) hereof; plus


 


(k)                                  an amount equal to
the Borrower’s and its Restricted Subsidiaries’ proportional share of the items
described in clauses (1)(a) and (b) of this definition
relating to each Joint Venture, in each case determined as if such Joint Venture
was a Restricted Subsidiary;


 


(2)                                  decreased
by (without duplication) non-cash gains increasing Consolidated Net Income of
such Person for such period, excluding any non-cash gains to the extent they
represent the reversal of an accrual or reserve for a potential cash item that
reduced EBITDA in any prior period; and


 


(3)                                  increased
or decreased by (without duplication):


 


(a)                                  any net gain or loss
resulting in such period from Hedging Obligations and the application of
Statement of Financial Accounting Standards No. 133 and its related
pronouncements and interpretations; plus or minus, as applicable,


 


(b)                                 any net gain or loss
resulting in such period from currency translation gains or losses related to
currency remeasurements of Indebtedness (including any net loss or gain
resulting from Hedging Obligations for currency exchange risk).


 


18

















 


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


 


“Engagement Letter”
shall mean the Engagement Letter, dated as of April 1, 2007, among
Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche
Bank Securities Inc., Goldman, Sachs & Co., HSBC Securities (USA)
Inc., Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Merger Sub, as amended by the Amendment to Engagement Letter
dated as of October 15, 2007, among Citibank, N.A., Citigroup Global
Markets Inc., Credit Suisse, Cayman Islands Branch, Credit Suisse Securities
(USA) LLC, Deutsche Bank AG Cayman Islands Branch, Deutsche Bank Securities
Inc., Goldman, Sachs & Co., Goldman Sachs Credit Partners L.P., HSBC
Bank USA, National Association, HSBC Securities (USA) Inc., Lehman Brothers
Commercial Bank, Lehman Commercial Paper Inc., Lehman Brothers Inc., Merrill
Lynch Capital Corporation, Merrill Lynch, Pierce, Fenner & Smith Incorporated
and the Borrower.


 


“Environmental Claims”
shall mean any and all actions, suits, orders, decrees, demands, demand
letters, claims, liens, notices of noncompliance, violation or potential responsibility
or investigation (other than internal reports prepared by the Borrower or any
of the Subsidiaries (a) in the ordinary course of such Person’s business
or (b) as required in connection with a financing transaction or an
acquisition or disposition of real estate) or proceedings relating in any way
to any Environmental Law or any permit issued, or any approval given, under any
such Environmental Law (hereinafter, “Claims”),
including, without limitation, (i) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law and (ii) any
and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief relating to
the presence, release or threatened release of Hazardous Materials or arising
from alleged injury or threat of injury to health or safety (to the extent
relating to human exposure to Hazardous Materials), or the environment
including, without limitation, ambient air, surface water, groundwater, land
surface and subsurface strata and natural resources such as wetlands.


 


“Environmental Law”
shall mean any applicable Federal, state, foreign or local statute, law, rule,
regulation, ordinance, code and rule of common law now or hereafter in
effect and in each case as amended, and any binding judicial or administrative
interpretation thereof, including any binding judicial or administrative order,
consent decree or judgment, relating to the protection of environment, including,
without limitation, ambient air, surface water, groundwater, land surface and
subsurface strata and natural resources such as wetlands, or human health or
safety (to the extent relating to human exposure to Hazardous Materials), or
Hazardous Materials.


 


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


 


“Equity Investments”
shall have the meaning provided in the preamble to this Agreement.


 


19

















 


“Equity Offering”
shall mean any public or private sale of common stock or Preferred Stock of the
Borrower or any of its direct or indirect parent companies (excluding Disqualified
Stock), other than:


 


(1)                                  public offerings with respect to the Borrower’s
or any direct or indirect parent company’s common stock registered on Form S-8;


 


(2)                                  issuances
to any Subsidiary of the Borrower; and


 


(3)                                  any
such public or private sale that constitutes an Excluded Contribution.


 


“ERISA” shall
mean the Employee Retirement Income Security Act of 1974, as amended from time
to time.  Section references to
ERISA are to ERISA as in effect at the Original Closing Date and any subsequent
provisions of ERISA amendatory thereof, supplemental thereto or substituted
therefor.


 


“ERISA Affiliate”
shall mean each person (as defined in Section 3(9) of ERISA) that
together with the Borrower would be deemed to be a “single employer” within the
meaning of Section 414(b) or (c) of the Code or, solely for
purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.


 


“euro” shall
mean the single currency of participating member states of the EMU.


 


“Event of Default”
shall have the meaning provided in Section 11.


 


“Exchange Act”
shall mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC promulgated thereunder.


 


“Exchange Date”
shall have the meaning provided in Section 2.14(b)(i).


 


“Exchange Notice”
shall have the meaning provided in Section 2.14(b)(ii).


 


“Excluded Contribution” shall mean net cash proceeds,
marketable securities or Qualified Proceeds received by the Borrower after the
Original Closing Date from:


 


(1)                                  contributions
to its common equity capital, and


 


(2)                                  the
sale (other than to a Subsidiary of the Borrower or to any management equity
plan or stock option plan or any other management or employee benefit plan or
agreement of the Borrower) of Capital Stock (other than Disqualified Stock and
Designated Preferred Stock) of the Borrower,


 


in each case designated as
Excluded Contributions pursuant to an Officer’s Certificate executed by the
principal financial officer of the Borrower on the date such capital
contributions are made or the date such Equity Interests are sold, as the case
may be, which are excluded from the calculation set forth in clause (3) of
Section 9.5(a) hereof.


 


20

















 


“Excluded Taxes”
shall mean, with respect to any Agent or any Lender, (a)(i) income taxes imposed
on or measured by net income and franchise and excise taxes (imposed in lieu of
net income taxes) imposed on such Agent or Lender, and (ii) any Taxes
imposed on any Agent or any Lender as a result of any current or former
connection between such Agent or Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising from such
Agent or Lender having executed, delivered or performed its obligations or
received a payment under, or having been a party to or having enforced, this
Agreement or any other Loan Document), and (b) in the case of a Non-U.S.
Lender any U.S. federal withholding tax that is imposed on amounts payable to
such Non-U.S. Lender under the law in effect at the time such Non-U.S. Lender
becomes a party to this Agreement (or, in the case of a Non- U.S. Participant,
on the date such Non-U.S. Participant became a Participant hereunder); provided
that this subclause (b) shall not apply to the extent that (x) the
indemnity payments or additional amounts any Lender (or Participant) would be
entitled to receive (without regard to this subclause (b)) do not exceed
the indemnity payment or additional amounts that the person making the
assignment, participation or transfer to such Lender (or Participant) would
have been entitled to receive in the absence of such assignment, participation
or transfer or (y) any Tax is imposed on a Lender in connection with an
interest or participation in any Loan or other obligation that such Lender was
required to acquire pursuant to Section 13.8(a) or that such
Lender acquired pursuant to Section 13.7 (it being understood and
agreed, for the avoidance of doubt, that any U.S. federal withholding tax imposed
on a Non-U.S. Lender as a result of a Change in Law occurring after the time
such Non-U.S. Lender became a party to this Agreement (or designates a new
lending office) shall not be an Excluded Tax) and (c) any Tax to the
extent attributable to such Lender’s failure to comply with Section 5.4(d) (in
the case of any Non-U.S. Lender) or Section 5.4(c) (in the
case of a U.S. Lender).


 


“Federal Funds Effective
Rate” shall mean, for any day, the weighted average of the per annum rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers on such
day, as published on the next succeeding Business Day by the Federal Reserve
Bank of New York; provided that (a) if such day is not a Business
Day, the Federal Funds Effective Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Effective Rate for such day
shall be the average rate charged to the Administrative Agent on such day on
such transactions as determined by the Administrative Agent.


 


“Fee Letter”
shall mean the Fee Letter, dated as of April 1, 2007, among Citigroup
Global Markets Inc., Credit Suisse, Credit Suisse Securities (USA) LLC,
Deutsche Bank AG Cayman Islands Branch, Deutsche Bank Securities Inc., Goldman,
Sachs & Co., Goldman Sachs Credit Partners L.P., HSBC Bank USA,
National Association, HSBC Securities (USA) Inc., Lehman Brothers Inc., Lehman
Brothers Commercial Bank, Lehman Commercial Paper Inc., Merrill Lynch Capital
Corporation  and Merger Sub.


 


“Fees” shall
mean all amounts payable pursuant to, or referred to in, Section 4.1.


 


21

















 


“Fixed Charge Coverage
Ratio” shall mean, with respect to any Person for any period, the ratio
of EBITDA of such Person for such period to the Fixed Charges of such Person
for such period.  In the event that the
Borrower or any Restricted Subsidiary incurs, assumes, guarantees, redeems,
retires or extinguishes any Indebtedness (other than Indebtedness incurred under
any revolving credit facility unless such Indebtedness has been permanently
repaid and has not been replaced) or issues or redeems Disqualified Stock or
Preferred Stock subsequent to the commencement of the period for which the
Fixed Charge Coverage Ratio is being calculated but prior to or simultaneously
with the event for which the calculation of the Fixed Charge Coverage Ratio is
made (the “Fixed Charge Coverage Ratio Calculation Date”),
then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such incurrence, assumption, guarantee,
redemption, retirement or extinguishment of Indebtedness, or such issuance or redemption
of Disqualified Stock or Preferred Stock, as if the same had occurred at the
beginning of the applicable four-quarter period.


 


For purposes of making the computation
referred to above, Investments, acquisitions, dispositions, mergers,
consolidations and disposed operations (as determined in accordance with GAAP)
that have been made by the Borrower or any of its Restricted Subsidiaries
during the four-quarter reference period or subsequent to such reference period
and on or prior to or simultaneously with the Fixed Charge Coverage Ratio
Calculation Date shall be calculated on a pro forma basis
assuming that all such Investments, acquisitions, dispositions, mergers, consolidations
and disposed operations (and the change in any associated fixed charge
obligations and the change in EBITDA resulting therefrom) had occurred on the
first day of the four-quarter reference period. 
If, since the beginning of such period, any Person that subsequently
became a Restricted Subsidiary or was merged with or into the Borrower or any
of its Restricted Subsidiaries since the beginning of such period shall have
made any Investment, acquisition, disposition, merger, consolidation or
disposed operation that would have required adjustment pursuant to this definition,
then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such period as if such
Investment, acquisition, disposition, merger, consolidation or disposed operation
had occurred at the beginning of the applicable four-quarter period.


 


For purposes of this definition, whenever pro forma effect is to be given to a transaction, the pro forma calculations shall be made in good faith by a
responsible financial or accounting officer of the Borrower (and may include,
for the avoidance of doubt, cost savings and operating expense reductions
resulting from such Investment, acquisition, merger or consolidation which is
being given pro forma effect that have been or are expected to be
realized).  If any Indebtedness bears a
floating rate of interest and is being given pro forma
effect, the interest on such Indebtedness shall be calculated as if the rate in
effect on the Fixed Charge Coverage Ratio Calculation Date had been the
applicable rate for the entire period (taking into account any Hedging
Obligations applicable to such Indebtedness). 
Interest on a Capitalized Lease Obligation shall be deemed to accrue at
an interest rate reasonably determined by a responsible financial or accounting
officer of the Borrower to be the rate of interest implicit in such Capitalized
Lease Obligation in accordance with GAAP. 
For purposes of making the computation referred to above, interest on
any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average
daily balance of such Indebtedness during the applicable period except as set
forth in the first paragraph of this definition.  Interest on Indebtedness that may optionally
be determined at an interest rate based upon a factor of a prime or 


 


22

















 


similar rate, a eurocurrency interbank offered
rate or other rate shall be deemed to have been based upon the rate actually
chosen, or, if none, then based upon such optional rate chosen as the Borrower
may designate.  Any such pro forma
calculation may include adjustments appropriate to exclude from EBITDA the
results of Integrated Payment Systems Inc. and Integrated Payment Systems
Canada Inc.


 


“Fixed
Charges” shall mean, with respect to any Person for any period, the
sum of:


 


(1)                                  Consolidated Interest Expense of such Person
for such period;


 


(2)                                  all cash dividends or other distributions
paid (excluding items eliminated in consolidation) on any series of Preferred
Stock of any Restricted Subsidiary during such period; and


 


(3)                                  all cash dividends or other distributions
paid (excluding items eliminated in consolidation) on any series of
Disqualified Stock during such period.


 


“Foreign Plan”
shall mean any employee benefit plan, program, policy, arrangement or agreement
maintained or contributed to by the Borrower or any of its Subsidiaries with
respect to employees employed outside the United States.


 


“Foreign Subsidiary”
shall mean with respect to any Person, any Restricted Subsidiary of such Person
that is not organized or existing under the laws of the United States, any
state thereof or the District of Columbia and any Restricted Subsidiary of such
Foreign Subsidiary.


 


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


 


“GAAP” shall
mean generally accepted accounting principles in the United States which are in
effect on the Original Closing Date.


 


“Governmental Authority”
shall mean any nation, sovereign or government, any state, province, territory
or other political subdivision thereof, and any entity or authority exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, including a central bank or stock exchange.


 


“Granting Lender”
shall have the meaning provided in Section 13.6(g).


 


“Guarantee”
shall mean (a) the Guarantee made by each Guarantor in favor of the
Administrative Agent for the benefit of the Guaranteed Parties, substantially
in the form of Exhibit A, and (b) any other guarantee of the
Obligations made by a Restricted Subsidiary that is a Domestic Subsidiary in
form and substance reasonably acceptable to the Administrative Agent, in each
case as the same may be amended, supplemented or otherwise modified from time
to time.


 


23

















 


“Guarantee Obligations”
shall mean, as to any Person, any obligation of such Person guaranteeing or
intended to guarantee any Indebtedness of any other Person (the “primary obligor”) in any manner, whether directly or
indirectly, including any obligation of such Person, whether or not contingent,
(a) to purchase any such Indebtedness or any property constituting direct
or indirect security therefor, (b) to advance or supply funds (i) for
the purchase or payment of any such Indebtedness or (ii) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such Indebtedness of the ability of the primary obligor to make payment of such
Indebtedness or (d) otherwise to assure or hold harmless the owner of such
Indebtedness against loss in respect thereof; provided, however,
that the term “Guarantee Obligations” shall not include endorsements of
instruments for deposit or collection in the ordinary course of business or
customary and reasonable indemnity obligations in effect on the Original
Closing Date or entered into in connection with any acquisition or disposition
of assets permitted under this Agreement (other than such obligations with
respect to Indebtedness).  The amount of
any Guarantee Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the Indebtedness in respect of which such Guarantee
Obligation is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith.


 


“Guaranteed Parties”  shall mean the
Administrative Agent, any other Agent and each Lender, in each case, with
respect to the Obligations or any Guarantee, and each sub-agent appointed by
the Administrative Agent pursuant to Section 13 with respect to
matters relating to the Obligations.


 


“Guarantors”
shall mean each Restricted Subsidiary that provides a Guarantee hereunder
pursuant to Section 9.13 or otherwise.


 


“Hazardous Materials”
shall mean (a) any petroleum or petroleum products, radioactive materials,
friable asbestos, urea formaldehyde foam insulation, transformers or other
equipment that contain dielectric fluid containing regulated levels of
polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or
substances defined as or included in the definition of “hazardous substances,” “hazardous
waste,” “hazardous materials,” “extremely hazardous waste,” “restricted
hazardous waste,” “toxic substances,” “toxic pollutants,” “contaminants,” or “pollutants,”
or words of similar import, under any applicable Environmental Law; and (c) any
other chemical, material or substance, which is prohibited, limited or
regulated by any Environmental Law.


 


“Hedging Obligations”
shall mean, with respect to any Person, the obligations of such Person under
any interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement, commodity swap agreement, commodity cap agreement, commodity collar
agreement, foreign exchange contract, currency swap agreement or similar
agreement providing for the transfer or mitigation of interest rate or currency
risks either generally or under specific contingencies.


 


“Historical Financial
Statements” shall mean the audited consolidated balance sheets of
the Borrower as of December 31, 2006 and December 31, 2005 and the
audited consolidated 


 


24

















 


statements of income, stockholders’ equity
and cash flows of the Borrower for each of the fiscal years in the three year
period ending on December 31, 2006.


 


“Holdco Indenture”
shall mean the indenture dated as of the Original Closing Date entered into
between Holdings and The Bank of New York, as trustee, relating to the Holdco
Notes.


 


“Holdco Notes”
shall mean the $1,000,000,000 aggregate principal amount of 111⁄2% Senior PIK
Notes due 2016 issued by Holdings on the Original Closing Date.


 


“Holdings” shall
mean New Omaha Holdings Corporation, a Delaware corporation, and its successors.


 


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


 


(1)                                  any indebtedness (including principal and premium)
of such Person, whether or not contingent:


 


(a)                                  in respect of borrowed money;


 


(b)                                 evidenced by bonds, notes, debentures or
similar instruments or letters of credit or bankers’ acceptances (or, without
duplication, reimbursement agreements in respect thereof);


 


(c)                                  representing the balance deferred and unpaid
of the purchase price of any property (including Capitalized Lease
Obligations), except (i) any such balance that constitutes an obligation
in respect of a commercial letter of credit, a trade payable or similar
obligation to a trade creditor, in each case accrued in the ordinary course of
business and (ii) any earn-out obligations until such obligation, within
60 days of becoming due and payable, has not been paid and becomes a liability
on the balance sheet of such Person in accordance with GAAP; or


 


(d)                                 representing any Hedging Obligations;


 


if
and to the extent that any of the foregoing Indebtedness (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance
sheet (excluding the footnotes thereto) of such Person prepared in accordance
with GAAP;


 


(2)                                  to the extent not otherwise included, any
obligation by such Person to be liable for, or to pay, as obligor, guarantor or
otherwise on, the obligations of the type referred to in clause (1) of
a third Person (whether or not such items would appear upon the balance sheet
of the such obligor or guarantor), other than by endorsement of negotiable
instruments for collection in the ordinary course of business; provided
that the amount of Indebtedness of any Person for purposes of this clause (2) shall
be deemed to be equal to the lesser of (i) the aggregate unpaid amount of
such Indebtedness and (ii) the fair market value of the property
encumbered thereby as determined by such Person in good faith; and


 


25

















 


(3)                                  to the extent not
otherwise included, the obligations of the type referred to in clause (1) of
a third Person secured by a Lien on any asset owned by such first Person,
whether or not such Indebtedness is assumed by such first Person;


 


provided,
however, that notwithstanding the foregoing, Indebtedness shall
be deemed not to include (a) Contingent Obligations incurred in the
ordinary course of business, (b) obligations under or in respect of
Receivables Facilities or (c) Settlement Indebtedness.


 


“indemnified liabilities”
shall have the meaning provided in Section 13.5.


 


“Indemnified Taxes”
shall mean all Taxes (including Other Taxes) other than (i) Excluded Taxes
and (ii) any interest, penalties or expenses caused by an Agent’s or
Lender’s gross negligence or willful misconduct.


 


“Indentures”
shall mean the Senior Refinancing Indenture and/or the Senior Subordinated Refinancing
Indenture, as the context requires.


 


“Independent
Financial Advisor” shall mean an accounting, appraisal, investment
banking firm or consultant to Persons engaged in Similar Businesses of
nationally recognized standing that is, in the good faith judgment of the
Borrower, qualified to perform the task for which it has been engaged.


 


“Insolvency or Liquidation Proceeding” shall mean:


 


(a)                                  any
voluntary or involuntary case or proceeding under the Bankruptcy Code with
respect to any Loan Party;


 


(b)                                 any
other voluntary insolvency, reorganization or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or proceeding
with respect to any Loan Party or with respect to a material portion of their
respective assets;


 


(c)                                  any
liquidation, dissolution, reorganization or winding-up of any Loan Party
whether voluntary or involuntary and whether or not involving insolvency or bankruptcy;
or


 


(d)                                 any
assignment for the benefit of creditors or any other marshalling of assets and
liabilities of any Loan Party.


 


“Interest Period”
shall mean, with respect to any Loan, the interest period applicable thereto,
as determined pursuant to Section 2.9.


 


“Interim Loan Conversion Date” shall mean September 24, 2008 or, if such date is
not a Business Day, the next succeeding Business Day.


 


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


 


26
















 


“Investment
Grade Securities” shall mean:


 


(1)                                  securities issued or directly and fully
guaranteed or insured by the United States government or any agency or
instrumentality thereof (other than Cash Equivalents);


 


(2)                                  debt securities or debt instruments with an
Investment Grade Rating, but excluding any debt securities or instruments
constituting loans or advances among the Borrower and its Subsidiaries;


 


(3)                                  investments in any fund that invests
exclusively in investments of the type described in clauses (1) and
(2) which fund may also hold immaterial amounts of cash pending
investment or distribution; and


 


(4)                                   corresponding instruments in countries other
than the United States customarily utilized for high quality investments.


 


“Investments”
shall mean, with respect to any Person, all investments by such Person in other
Persons (including Affiliates) in the form of loans (including guarantees), advances
or capital contributions (excluding accounts receivable, trade credit, advances
to customers, commissions, travel and similar advances to officers and
employees, in each case made in the ordinary course of business), purchases or
other acquisitions for consideration of Indebtedness, Equity Interests or other
securities issued by any other Person and investments that are required by GAAP
to be classified on the balance sheet (excluding the footnotes) of the Borrower
in the same manner as the other investments included in this definition to the
extent such transactions involve the transfer of cash or other property.  For purposes of the definition of “Unrestricted
Subsidiary” and Section 9.5 hereof:


 


(1)                                  “Investments”
shall include the portion (proportionate to the Borrower’s equity interest in
such Subsidiary) of the fair market value of the net assets of a Subsidiary of
the Borrower at the time that such Subsidiary is designated an Unrestricted Subsidiary;
provided, however, that upon a redesignation of such Subsidiary
as a Restricted Subsidiary, the Borrower shall be deemed to continue to have a
permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive)
equal to:


 


(a)                                  the Borrower’s “Investment”
in such Subsidiary at the time of such redesignation; less


 


(b)                                 the portion
(proportionate to the Borrower’s equity interest in such Subsidiary) of the
fair market value of the net assets of such Subsidiary at the time of such
redesignation; and


 


(2)                                  any
property transferred to or from an Unrestricted Subsidiary shall be valued at
its fair market value at the time of such transfer, in each case fair market
value as determined in good faith by the Borrower.


 


27

















 


“Investors”
shall mean Kohlberg Kravis Roberts & Co. L.P., KKR 2006 Fund L.P.,
Citigroup Global Markets Inc., Credit Suisse Management LLC, Deutsche Bank
Investment Partners, Inc., HSBC Bank plc, LB I Group Inc., GMI Investments, Inc.,
Citigroup Capital Partners II 2007, Citigroup Investment, L.P., Citigroup
Capital Partners II Employee Master Fund, L.P., Citigroup Capital Partners II
Onshore, L.P., Citigroup Capital Partners II Cayman Holdings, L.P., CGI CPE
LLC, GS Capital Partners VI Parallel, L.P., GS Capital Partners VI GmbH &
Co. KG, GS Capital Partners VI Fund, L.P., GS Capital Partners VI Offshore
Fund, L.P., GS Mezzanine Partners 2006 Fund, L.P. and Goldman Sachs Investments
Ltd. and each of their respective Affiliates but not including, however, any
portfolio companies of any of the foregoing.


 


“Joint Lead Arrangers and
Bookrunners” shall mean Citigroup Global Markets Inc., Credit Suisse
Securities (USA) LLC, Deutsche Bank Securities Inc., Goldman Sachs Credit
Partners L.P., HSBC Securities (USA) Inc., Lehman Brothers Inc. and Merrill
Lynch, Pierce, Fenner & Smith Incorporated.


 


“Joint Venture”
shall mean, at any date of determination, each joint venture accounted for as
an equity method investee of the Borrower and its Subsidiaries, determined in accordance
with GAAP.


 


“Judgment Currency”
shall have the meaning provided in Section 13.19.


 


“Lender” shall
have the meaning provided in the preamble to this Agreement.


 


“Lender Default”
shall mean (a) the failure (which has not been cured) of a Lender to make
available its portion of any Borrowing or (b) a Lender having notified the
Administrative Agent and/or the Borrower that it does not intend to comply with
the obligations under Section 2.1(a), or (c) a Lender becoming
the subject of a bankruptcy or insolvency proceeding.


 


“LIBOR Loan”
shall mean any Loan bearing interest at a rate determined by reference to the
LIBOR Rate.


 


“LIBOR Rate”
shall mean, for any Interest Period with respect to a LIBOR Loan in Dollars,
the rate per annum equal to the British Bankers
Association LIBOR Rate (“BBA LIBOR”), as
published by Bloomberg (or other commercially available source providing quotations
of BBA LIBOR as designated by the Administrative Agent from time to time) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for deposits in Dollars (for delivery on
the first day of such Interest Period) with a term equivalent to such Interest
Period.  If such rate is not available at
such time for any reason, then the “LIBOR Rate” for such Interest Period shall
be the rate per annum determined by the Administrative
Agent to be the rate at which deposits in Dollars for delivery on the first day
of such Interest Period in same day funds in the approximate amount of the
LIBOR Loan being made, continued or converted by the Administrative Agent and
with a term equivalent to such Interest Period would be offered by the
Administrative Agent’s London Branch to major banks in the applicable London
interbank eurocurrency market at their request at approximately 11:00 a.m.
(London time) two Business Days prior to the commencement of such Interest
Period.


 


28

















 


“Lien” shall
mean, with respect to any asset, any mortgage, lien (statutory or otherwise),
pledge, hypothecation, charge, security interest, preference, priority or
encumbrance of any kind in respect of such asset, whether or not filed,
recorded or otherwise perfected under applicable law, including any conditional
sale or other title retention agreement, any lease in the nature thereof, any
option or other agreement to sell or give a security interest in and any filing
of or agreement to give any financing statement under the Uniform Commercial
Code (or equivalent statutes) of any jurisdiction; provided that in no event shall an operating lease be deemed
to constitute a Lien.


 


“Loan” shall
mean any Senior Subordinated Interim Loan or Senior Subordinated Term Loan made
by any Lender hereunder.


 


“Loan Documents”  shall mean this Agreement (including the
Original Senior Subordinated Loan Agreement), the Guarantees and any promissory
notes issued by the Borrower hereunder.


 


“Loan Party”
shall mean the Borrower, the Guarantors and each other Subsidiary of the Borrower
that is a party to a Loan Document.


 


“Material Adverse Effect”
shall mean a circumstance or condition affecting the business, assets,
operations, properties or financial condition of the Borrower and the Subsidiaries,
taken as a whole, that would, individually or in the aggregate, materially
adversely affect (a) the ability of the Borrower and the other Loan
Parties, taken as a whole, to perform their payment obligations under this
Agreement or any of the other Loan Documents or (b) the rights and
remedies of the Administrative Agent and the Lenders under this Agreement or
any of the other Loan Documents.


 


“Material Subsidiary”
shall mean, at any date of determination, (i) each Restricted Subsidiary
of the Borrower (a) whose total assets at the last day of the Test Period
ending on the last day of the most recent fiscal period for which Section 9.1
Financials have been delivered were equal to or greater than 5% of the
Consolidated Total Assets of the Borrower and the Restricted Subsidiaries at
such date or (b) whose revenues during such Test Period were equal to or
greater than 5% of the consolidated revenues of the Borrower and the Restricted
Subsidiaries for such period, in each case determined in accordance with GAAP; provided
that if, at any time and from time to time after the Original Closing Date,
Restricted Subsidiaries that are not Material Subsidiaries have, in the
aggregate, (x) total assets at the last day of such Test Period equal to
or greater than 10% of the Consolidated Total Assets of the Borrower and the Restricted
Subsidiaries at such date or (y) revenues during such Test Period equal to
or greater than 10% of the consolidated revenues of the Borrower and the
Restricted Subsidiaries for such period, in each case determined in accordance
with GAAP, then the Borrower shall, on the date on which financial statements
for such quarter are delivered pursuant to this Agreement, designate in writing
to the Administrative Agent one or more of such Restricted Subsidiaries as “Material
Subsidiaries.”


 


“Maturity Date”  shall mean (a) if the Loans have not been
converted to Senior Subordinated Term Loans, September 24, 2008 or, if
such date is not a Business Day, the next succeeding Business Day, or (b) if
the Loans have been converted to Senior Subordinated Term 


 


29

















 


Loans, March 31, 2016 or, if such date
is not a Business Day, the next succeeding Business Day (with respect to clause (b) only,
the “Term Loan Maturity Date”).


 


“Merchant Acquisition and
Processing Alliance” shall mean any joint venture or other strategic
alliance entered into with any financial institution or other third party
primarily entered into to offer Merchant Services.


 


“Merchant Agreement”
shall mean any contract entered into with a merchant relating to the provision
of Merchant Services.


 


“Merchant Services”
shall mean services provided to merchants relating to the authorization,
transaction capture, settlement, chargeback handling and internet-based transaction
processing of credit, debit, stored-value and loyalty card and other payment
transactions (including provision of point of service devices and other
equipment necessary to capture merchant transactions and other ancillary
services).


 


“Merger” shall
have the meaning provided in the preamble to this Agreement.


 


“Merger Sub”
shall mean Omaha Acquisition Corporation, a Delaware corporation.


 


“Minimum Borrowing Amount”
shall mean (a) with respect to a Borrowing of LIBOR Loans, $5,000,000 and (b) with
respect to a Borrowing of ABR Loans, $1,000,000.


 


“Minimum Equity Amount”
shall have the meaning provided in the preamble to this Agreement.


 


“Moody’s” shall
mean Moody’s Investors Service, Inc. and any successor to its rating
agency business.


 


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


 


“Net Asset
Sale Proceeds” shall mean the aggregate cash proceeds received by
the Borrower or any of its Restricted Subsidiaries in respect of any Asset
Sale, including any cash received upon the sale or other disposition of any
Designated Non-cash Consideration received in any Asset Sale, net of the direct
costs relating to such Asset Sale and the sale or disposition of such
Designated Non-cash Consideration, including legal, accounting and investment
banking fees, and brokerage and sales commissions, any relocation expenses
incurred as a result thereof, taxes paid or payable as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing
arrangements), amounts required to be applied to the repayment of principal,
premium, if any, and interest on Senior Indebtedness required (other than
required by clause (1) of Section 9.8(b) hereof)
to be paid as a result of such transaction and any deduction of appropriate
amounts to be provided by the Borrower or any of its Restricted Subsidiaries as
a reserve in accordance with GAAP against any liabilities associated with the
asset disposed of in such transaction and retained by the Borrower or any of
its Restricted Subsidiaries after such sale or other disposition thereof,
including pension and other post-employment benefit 


 


30

















 


liabilities and liabilities related to
environmental matters or against any indemnification obligations associated
with such transaction.


 


“Net Cash Proceeds”
shall mean, with respect to any Prepayment Event, (a) the gross cash proceeds
(including payments from time to time in respect of installment obligations, if
applicable) received by or on behalf of the Borrower or any of the Restricted
Subsidiaries in respect of such Prepayment Event, as the case may be, less (b) the
sum of:


 


(i)                                     the
amount, if any, of all taxes paid or estimated to be payable by the Borrower or
any of the Restricted Subsidiaries in connection with such Prepayment Event,


 


(ii)                                  the
amount of any reasonable reserve established in accordance with GAAP against
any liabilities (other than any taxes deducted pursuant to clause (i) above)
(x) associated with the assets that are the subject of such Prepayment
Event and (y) retained by the Borrower or any of the Restricted
Subsidiaries, provided that the amount of any subsequent reduction of
such reserve (other than in connection with a payment in respect of any such
liability) shall be deemed to be Net Cash Proceeds of such a Prepayment Event
occurring on the date of such reduction,


 


(iii)                               the
amount of any Indebtedness secured by a Lien on the assets that are the subject
of such Prepayment Event to the extent that the instrument creating or evidencing
such Indebtedness requires that such Indebtedness be repaid upon consummation
of such Prepayment Event, and


 


(iv)                              reasonable
and customary fees paid by the Borrower or a Restricted Subsidiary in
connection with any of the foregoing,


 


in each case only to the extent
not already deducted in arriving at the amount referred to in clause (a) above.


 


“Net Income”
shall mean, with respect to any Person, the net income (loss) of such Person,
determined in accordance with GAAP and before any reduction in respect of Preferred
Stock dividends.


 


“Non-Consenting Lender”
shall have the meaning provided in Section 13.7(b).


 


“Non-Defaulting Lender”
shall mean and include each Lender other than a Defaulting Lender.


 


“Non-U.S. Lender”
shall mean any Agent or Lender that is not, for United States federal income
tax purposes, (a) an individual who is a citizen or resident of the United
States, (b) a corporation, partnership or entity treated as a corporation
or partnership created or organized in or under the laws of the United States,
or any political subdivision thereof, (c) an estate whose income is subject
to U.S. federal income taxation regardless of its source or (d) a trust if
a court within the United States is able to exercise primary supervision over
the administration of such trust and one or more United States persons have the
authority to control all substantial decisions 


 


31

















 


of such trust or a trust that has a valid
election in effect under applicable U.S. Treasury regulations to be treated as
a United States person.


 


“Non-Payment Default”
shall have the meaning provided in Section 14.3.


 


“Non-U.S. Participant”
shall mean any Participant that if it were a Lender would qualify as a Non-U.S.
Lender.


 


“Notice of Borrowing”
shall have the meaning provided in Section 2.3(a).


 


“Notice of Conversion or
Continuation” shall have the meaning provided in Section 2.6(a).


 


“Obligations”
shall mean any principal, interest (including any interest accruing subsequent
to the filing of a petition in bankruptcy, reorganization or similar proceeding
at the rate provided for in the documentation with respect thereto, whether or
not such interest is an allowed claim under applicable state, federal or
foreign law), premium, penalties, fees, indemnifications, reimbursements
(including reimbursement obligations with respect to letters of credit and bankers’
acceptances), damages and other liabilities, and guarantees of payment of such
principal, interest, penalties, fees, indemnifications, reimbursements, damages
and other liabilities, payable under the documentation governing any
Indebtedness.


 


“Officer” shall
mean the Chairman of the Board, the Chief Executive Officer, the President, any
Executive Vice President, Senior Vice President or Vice President, the
Treasurer or the Secretary of the Borrower or a Guarantor, as applicable.


 


“Officer’s Certificate”
shall mean a certificate signed on behalf of the Borrower by an Officer of the
Borrower or on behalf of a Guarantor by an Officer of such Guarantor, who must
be the principal executive officer, the principal financial officer, the
treasurer or the principal accounting officer of the Borrower, that meets the
requirements set forth in this Agreement.


 


“Opinion of Counsel”
shall mean a written opinion from legal counsel who is acceptable to the
Administrative Agent.  The counsel may be
an employee of or counsel to the Borrower or the Administrative Agent.


 


“Original Closing Date”
shall mean September 24, 2007, the date of the initial extensions of
credit under the Original Senior Subordinated Loan Agreement.


 


“Original Lenders”
shall have the meaning assigned to such term in the recitals hereto.


 


“Original Senior
Subordinated Loan Agreement” shall have the meaning assigned to such
term in the recitals hereto.


 


“Other Taxes”
shall mean any and all present or future stamp, registration, documentary or
any other excise, property or similar taxes (including interest, fines,
penalties, additions to tax and related expenses with regard thereto) arising
from any payment made or required 


 


32

















 


to be made under this Agreement or any other
Loan Document or from the execution or delivery of, registration or enforcement
of, consummation or administration of, or otherwise with respect to, this
Agreement or any other Loan Document.


 


“Overnight Rate”
shall mean, for any day the greater of (i) the Federal Funds Effective
Rate and (ii) an overnight rate determined by the Administrative Agent, as
the case may be, in accordance with banking industry rules on interbank
compensation.


 


“Participant”
shall have the meaning provided in Section 13.6(c).


 


“Patriot Act”
shall have the meaning provided in Section 13.18.


 


“Payment Blockage Period”
shall have the meaning provided in Section 14.3.


 


“pay the Loans”
shall have the meaning provided in Section 14.3.


 


“Payment Default”
shall have the meaning provided in Section 14.3.


 


“Pension Act”
shall mean the Pension Protection Act of 2006, as it presently exists or as it
may be amended from time to time.


 


“Permitted Asset Swap”
shall mean the concurrent purchase and sale or exchange of Related Business
Assets or a combination of Related Business Assets and cash or Cash Equivalents
between the Borrower or any of its Restricted Subsidiaries and another Person; provided
that any cash or Cash Equivalents received must be applied in accordance with Section 9.8
hereof.


 


“Permitted Holders”
shall mean each of the Investors, members of management of the Borrower (or its
direct or indirect parent) and any group (within the meaning of Section 13(d)(3) or
Section 14(d)(2) of the Exchange Act or any successor provision) of
which any of the foregoing are members; provided that, in the case of
such group and without giving effect to the existence of such group or any
other group, such Investors, and members of management, collectively, have
beneficial ownership of more than 50% of the total voting power of the Voting
Stock of the Borrower or any of its direct or indirect parent companies.  Any Person or group whose acquisition of
beneficial ownership constitutes a Change of Control in respect of which a
Change of Control Offer is made in accordance with the requirements of this
Agreement will thereafter, together with its Affiliates, constitute an
additional Permitted Holder.


 


“Permitted Investments”
shall mean:


 


(1)                                  any
Investment in the Borrower or any of its Restricted Subsidiaries;


 


(2)                                  any
Investment in cash and Cash Equivalents or Investment Grade Securities;


 


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


 


33

















 


(a)                                  such Person becomes a
Restricted Subsidiary; or


 


(b)                                 such Person, in one
transaction or a series of related transactions, is merged or consolidated with
or into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Borrower or a Restricted Subsidiary,


 


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


 


(4)                                  any
Investment in securities or other assets not constituting cash, Cash
Equivalents or Investment Grade Securities and received in connection with an
Asset Sale made pursuant to the provisions described under Section 9.8
hereof or any other disposition of assets not constituting an Asset Sale;


 


(5)                                  any
Investment existing on the Original Closing Date or made pursuant to a binding
commitment as in effect on the Original Closing Date;


 


(6)                                  any
Investment acquired by the Borrower or any of its Restricted Subsidiaries:


 


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


 


(b)                                 as a result of a
foreclosure by the Borrower or any of its Restricted Subsidiaries with respect
to any secured Investment or other transfer of title with respect to any
secured Investment in default;


 


(7)                                  Hedging
Obligations permitted under clause (10) of Section 9.7(b) hereof;


 


(8)                                  any
Investment in a Similar Business having an aggregate fair market value, taken
together with all other Investments made pursuant to this clause (8) that
are at that time outstanding, not to exceed (x) prior to the Interim Loan
Conversion Date, $750.0 million and (y) thereafter, 2.5% of the Borrower’s
Total Assets, in each case at the time of such Investment (with the fair market
value of each Investment being measured at the time made and without giving
effect to subsequent changes in value);


 


(9)                                  Investments
the payment for which consists of Equity Interests (exclusive of Disqualified
Stock) of the Borrower or any of its direct or indirect parent companies; provided,
however, that such Equity Interests will not increase the amount
available for Restricted Payments under clause (3) of Section 9.5(a) hereof;


 


(10)                            guarantees
of Indebtedness permitted under Section 9.7 hereof;


 


34

















 


(11)                            any
transaction to the extent it constitutes an Investment that is permitted and
made in accordance with the provisions of Section 9.9(b) hereof
(except transactions described in clauses (2), (5) and (9) of
Section 9.9(b) hereof);


 


(12)                            Investments
consisting of purchases and acquisitions of inventory, supplies, material or
equipment;


 


(13)                            additional
Investments having an aggregate fair market value, taken together with all
other Investments made pursuant to this clause (13) that are at that
time outstanding (without giving effect to the sale of an Unrestricted
Subsidiary to the extent the proceeds of such sale do not consist of cash or
marketable securities), not to exceed (x) prior to the Interim Loan
Conversion Date, $600.0 million and (y) thereafter, 3.5% of the Borrower’s
Total Assets, in each case at the time of such Investment (with the fair market
value of each Investment being measured at the time made and without giving effect
to subsequent changes in value);


 


(14)                            Investments
relating to a Receivables Subsidiary that, in the good faith determination of
the Borrower, is necessary or advisable to effect any Receivables Facility;


 


(15)                            advances
to, or guarantees of Indebtedness of, employees not in excess of
$50.0 million outstanding at any one time, in the aggregate;


 


(16)                            loans
and advances to officers, directors and employees for business-related travel
expenses, moving expenses and other similar expenses, in each case incurred in
the ordinary course of business or consistent with past practices or to fund such
Person’s purchase of Equity Interests of the Borrower or any direct or indirect
parent company thereof;


 


(17)                            any
Investment in any joint venture existing on the Original Closing Date to the
extent contemplated by the organizational documents of such joint venture as in
existence on the Original Closing Date;


 


(18)                            any
Investment in any Subsidiary or any joint venture in connection with
intercompany cash management arrangements or related activities arising in the
ordinary course of business;


 


(19)                            any
Investment arising in the ordinary course of business as a result of any Settlement,
including Investments in and of Settlement Assets; and


 


(20)                            Investments
of assets made pursuant to any non-qualified deferred compensation plan
sponsored by the Borrower or its Restricted Subsidiaries.


 


“Permitted Junior
Securities” shall mean:


 


(1)                                  Equity
Interests in the Borrower, any Guarantor or any direct or indirect parent of
the Borrower;


 


35

















 


(2)                                  unsecured
debt securities that are subordinated to all Senior Indebtedness (and any debt
securities issued in exchange for Senior Indebtedness) to substantially the
same extent as, or to a greater extent than, the Loans and the related
Guarantees are subordinated to Senior Indebtedness under this Agreement;


 


provided
that the term “Permitted Junior Securities” shall not include any securities
distributed pursuant to a plan of reorganization if the Indebtedness under the
Senior Secured Credit Agreement is treated as part of the same class as the
Loans for purposes of such plan of reorganization; provided
further that to the extent that any Senior Indebtedness of the
Borrower or the Guarantors outstanding on the date of consummation of any such
plan of reorganization is not paid in full in cash on such date, the holders of
any such Senior Indebtedness not so paid in full in cash have consented to the
terms of such plan of reorganization.


 


“Permitted Liens”
shall mean, with respect to any Person:


 


(1)                                  pledges
or deposits by such Person under workmen’s compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in connection
with bids, tenders, contracts (other than for the payment of Indebtedness) or
leases to which such Person is a party, or deposits to secure public or
statutory obligations of such Person or deposits of cash or U.S. government
bonds to secure surety or appeal bonds to which such Person is a party, or
deposits as security for contested taxes or import duties or for the payment of
rent, in each case incurred in the ordinary course of business;


 


(2)                                  Liens
imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens, in each
case for sums not yet overdue for a period of more than 30 days or being
contested in good faith by appropriate proceedings or other Liens arising out
of judgments or awards against such Person with respect to which such Person
shall then be proceeding with an appeal or other proceedings for review if
adequate reserves with respect thereto are maintained on the books of such
Person in accordance with GAAP;


 


(3)                                  Liens
for taxes, assessments or other governmental charges not yet overdue for a
period of more than 30 days or payable or subject to penalties for nonpayment
or which are being contested in good faith by appropriate proceedings
diligently conducted, if adequate reserves with respect thereto are maintained
on the books of such Person in accordance with GAAP;


 


(4)                                  Liens
in favor of issuers of performance and surety bonds or bid bonds or with
respect to other regulatory requirements or letters of credit issued pursuant
to the request of and for the account of such Person in the ordinary course of
its business;


 


(5)                                  minor
survey exceptions, minor encumbrances, easements or reservations of, or rights
of others for, licenses, rights-of-way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions as
to the use of real properties or Liens incidental to the conduct of the
business of such Person or to the ownership of its properties which were not
incurred in connection with Indebtedness and which do not in the aggregate
materially adversely affect the value of said properties or materially impair
their use in the operation of the business of such Person;


 


36

















 


(6)                                  Liens
securing Indebtedness permitted to be incurred pursuant to clause (4), (12),
(13), (18) or (19) of Section 9.7(b) hereof;
provided that (a) Liens securing Indebtedness, Disqualified Stock
or Preferred Stock permitted to be incurred pursuant to clause (13)
relate only to Refinancing Indebtedness that serves to refund or refinance Indebtedness,
Disqualified Stock or Preferred Stock incurred under clause (4) or (12)
of Section 9.7(b) hereof, (b) Liens securing Indebtedness
permitted to be incurred pursuant to clause (18) extend only to the
assets of Foreign Subsidiaries, (c) Liens securing Indebtedness permitted
to be incurred pursuant to clause (19) are solely on acquired property
or the assets of the acquired entity, as the case may be and (d) Liens
securing Indebtedness, Disqualified Stock or Preferred Stock permitted to be
incurred pursuant to clause (4) of Section 9.7(b) hereof
extend only to the assets so financed, purchased, constructed or improved;


 


(7)                                  Liens
existing on the Original Closing Date (other than Liens in favor of the lenders
under the Senior Secured Credit Agreement);


 


(8)                                  Liens
on property or shares of stock of a Person at the time such Person becomes a
Subsidiary; provided, however, such Liens are not created or
incurred in connection with, or in contemplation of, such other Person becoming
such a Subsidiary; provided, further, however, that such
Liens may not extend to any other property owned by the Borrower or any of its
Restricted Subsidiaries;


 


(9)                                  Liens
on property at the time the Borrower or a Restricted Subsidiary acquired the
property, including any acquisition by means of a merger or consolidation with
or into the Borrower or any of its Restricted Subsidiaries; provided, however,
that such Liens are not created or incurred in connection with, or in
contemplation of, such acquisition; provided, further, however,
that the Liens may not extend to any other property owned by the Borrower or
any of its Restricted Subsidiaries;


 


(10)                            Liens
securing Indebtedness or other obligations of a Restricted Subsidiary owing to
the Borrower or another Restricted Subsidiary permitted to be incurred in
accordance with Section 9.7 hereof;


 


(11)                            Liens
securing Hedging Obligations so long as the related Indebtedness is, and is
permitted to be under this Agreement, secured by a Lien on the same property securing
such Hedging Obligations;


 


(12)                            Liens
on specific items of inventory or other goods and proceeds of any Person
securing such Person’s obligations in respect of bankers’ acceptances issued or
created for the account of such Person to facilitate the purchase, shipment or
storage of such inventory or other goods;


 


(13)                            leases,
subleases, licenses or sublicenses granted to others in the ordinary course of
business which do not materially interfere with the ordinary conduct of the
business of the Borrower or any of its Restricted Subsidiaries and do not
secure any Indebtedness;


 


37

















 


(14)                            Liens
arising from Uniform Commercial Code financing statement filings regarding
operating leases entered into by the Borrower and its Restricted Subsidiaries
in the ordinary course of business;


 


(15)                            Liens
in favor of the Borrower or any Guarantor;


 


(16)                            Liens
on equipment of the Borrower or any of its Restricted Subsidiaries granted in
the ordinary course of business;


 


(17)                            Liens
on accounts receivable and related assets incurred in connection with a Receivables
Facility;


 


(18)                            Liens
to secure any refinancing, refunding, extension, renewal or replacement (or
successive refinancings, refundings, extensions, renewals or replacements), as
a whole or in part, of any Indebtedness secured by any Lien referred to in the
foregoing clauses (6), (7), (8) and (9); provided,
however, that (a) such new Lien shall be limited to all or part of
the same property that secured the original Lien (plus improvements on such
property), and (b) the Indebtedness secured by such Lien at such time is
not increased to any amount greater than the sum of (i) the outstanding
principal amount or, if greater, committed amount of the Indebtedness described
under the foregoing clauses (6), (7), (8) and (9) at
the time the original Lien became a Permitted Lien under this Agreement, and (ii) an
amount necessary to pay any fees and expenses, including premiums, related to
such refinancing, refunding, extension, renewal or replacement;


 


(19)                            deposits
made in the ordinary course of business to secure liability to insurance
carriers;


 


(20)                            other
Liens securing obligations incurred in the ordinary course of business which
obligations do not exceed $100.0 million at any one time outstanding;


 


(21)                            Liens
securing judgments for the payment of money not constituting an Event of
Default under clause (f) under Section 11.1(I) hereof
so long as such Liens are adequately bonded and any appropriate legal
proceedings that may have been duly initiated for the review of such judgment
have not been finally terminated or the period within which such proceedings
may be initiated has not expired;


 


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


 


(23)                            Liens (i) of
a collection bank arising under Section 4-210 of the Uniform Commercial
Code, or any comparable or successor provision, on items in the course of
collection, (ii) attaching to commodity trading accounts or other
commodity brokerage accounts incurred in the ordinary course of business, and (iii) in
favor of banking institutions arising as a matter of law encumbering deposits
(including the right of set-off) and which are within the general parameters
customary in the banking industry;


 


38
















 


(24)         Liens deemed to exist in
connection with Investments in repurchase agreements permitted under Section 9.7
hereof; provided that such Liens do not extend to any assets other than
those that are the subject of such repurchase agreements;


 


(25)         Liens encumbering
reasonable customary initial deposits and margin deposits and similar Liens
attaching to commodity trading accounts or other brokerage accounts incurred in
the ordinary course of business and not for speculative purposes;


 


(26)         Liens that are contractual
rights of set-off (i) relating to the establishment of depository
relations with banks not given in connection with the issuance of Indebtedness,
(ii) relating to pooled deposit or sweep accounts of the Borrower or any
of its Restricted Subsidiaries to permit satisfaction of overdraft or similar
obligations incurred in the ordinary course of business of the Borrower and its
Restricted Subsidiaries or (iii) relating to purchase orders and other
agreements entered into with customers of the Borrower or any of its Restricted
Subsidiaries in the ordinary course of business;


 


(27)         Liens arising out of
conditional sale, title retention, consignment or similar arrangements for the
sale or purchase of goods entered into by the Borrower or any Restricted Subsidiary
in the ordinary course of business; and


 


(28)         Settlement Liens.


 


For purposes of this definition, the term “Indebtedness”
shall be deemed to include interest on such Indebtedness.


 


“Person” shall
mean any individual, corporation, limited liability company, partnership, joint
venture, association, joint stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.


 


“PIK Interest Amount”
shall mean the aggregate principal amount of all increases in outstanding
principal amount of PIK Notes (as defined in the Senior Refinancing Indenture)
and issuances of additional “PIK Notes” (as defined in the Senior Refinancing
Indenture) in connection with an election by the Borrower to pay interest on
the PIK Notes in kind.


 


“Plan” shall
mean any multiemployer or single-employer plan, as defined in Section 4001
of ERISA and subject to Title IV of ERISA, that is or was within any of the
preceding six plan years maintained or contributed to by (or to which there is
or was an obligation to contribute or to make payments to) the Borrower or an
ERISA Affiliate.


 


“Platform” shall
have the meaning provided in Section 13.17(b).


 


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


 


“Prepayment Event”
shall mean any Debt Incurrence Prepayment Event.


 


“prime rate”
shall mean the “prime rate” referred to in the definition of “ABR.”


 


39

















 


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


 


“Rating Agencies”
shall mean Moody’s and S&P or if Moody’s or S&P or both shall not make
a rating on the applicable security or other investment publicly available, a nationally
recognized statistical rating agency or agencies, as the case may be, selected
by the Borrower which shall be substituted for Moody’s or S&P or both, as
the case may be.


 


“Real Estate”
shall mean land, buildings and improvements owned or leased by the Borrower or
any Guarantors, but excluding all operating fixtures and equipment, whether or
not incorporated into improvements.


 


“Receivables
Facility” shall mean any of one or more receivables financing facilities
as amended, supplemented, modified, extended, renewed, restated or refunded
from time to time, the Obligations of which are non-recourse (except for
customary representations, warranties, covenants and indemnities made in
connection with such facilities) to the Borrower or any of its Restricted Subsidiaries
(other than a Receivables Subsidiary) pursuant to which the Borrower or any of
its Restricted Subsidiaries purports to sell its accounts receivable to either (a) a
Person that is not a Restricted Subsidiary or (b) a Receivables Subsidiary
that in turn funds such purchase by purporting to sell its accounts receivable
to a Person that is not a Restricted Subsidiary or by borrowing from such
Person or from another Receivables Subsidiary that in turn funds itself by
borrowing from such Person.


 


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


 


“Receivables Subsidiary”
shall mean any Subsidiary formed for the purpose of facilitating or entering
into one or more Receivables Facilities, and in each case engages only in activities
reasonably related or incidental thereto.


 


“Refinancing Indebtedness”
shall have the meaning provided in Section 9.7(b)(13).


 


“Register” shall
have the meaning provided in Section 13.6(b)(iv).


 


“Registration Rights Agreement”  shall mean any registration
rights agreement related to the Senior Notes or the Senior Subordinated Notes, as
may be executed in connection with the refinancing or exchange of the Senior
Interim Loans and/or the Senior Term Loans, and the Senior Subordinated Interim
Loans and/or the Senior Subordinated Term Loans, respectively, by and among the
Borrower, the Guarantors and the financial institutions parties thereto, as
such agreement may be amended, modified or supplemented from time to time and,
with respect to any additional notes issued pursuant to the Indentures, one or
more registration rights agreements among the Borrower, the Guarantors and the
other parties thereto, as such agreement(s) may be amended, modified or
supplemented from time to time, relating to rights given by the Borrower 


 


40

















 


and the
Guarantors to the holders of such additional notes to register such additional
notes under the Securities Act.


 


“Regulation T”
shall mean Regulation T of the Board as from time to time in effect and any successor
to all or a portion thereof establishing margin requirements.


 


“Regulation U”
shall mean Regulation U of the Board as from time to time in effect and any successor
to all or a portion thereof establishing margin requirements.


 


“Regulation X”
shall mean Regulation X of the Board as from time to time in effect and any successor
to all or a portion thereof establishing margin requirements.


 


“Rejection Notice”
shall have the meaning provided in Section 5.2(h).


 


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


 


“Related Parties”
shall mean, with respect to any specified Person, such Person’s Affiliates and
the directors, officers, employees, agents, trustees and advisors of such
Person and any Person that possesses, directly or indirectly, the power to
direct or cause the direction of the management or policies of such Person,
whether through the ability to exercise voting power, by contract or otherwise.


 


“Reportable Event”
shall mean an event described in Section 4043 of ERISA and the regulations
thereunder, other than any event as to which the thirty day notice period has
been waived.


 


“Representative”
shall mean the Administrative Agent, trustee, agent or representative (if any)
for an issue of Designated Senior Indebtedness.


 


“Required Debt”
means the outstanding principal amount of (1) the Senior Subordinated
Interim Loans (excluding any Senior Subordinated Interim Loans held by
Defaulting Lenders), (2) the Senior Subordinated Notes, (3) any
securities issued to refinance or replace the items described in clauses (1) and
(2) of this definition, to the extent provided in the indenture or other
agreements governing such securities, at such date voting as a single class, to
the extent permitted under this Agreement.


 


“Required Holders”
means Persons holding the Required Debt.


 


“Required Lenders”
shall mean, at any date, Non-Defaulting Lenders having or holding a majority of
(i) the Loans (excluding the Loans of Defaulting Lenders) in the aggregate
at such date, or (ii) after issuance of any Senior Subordinated Notes, a
majority of the outstanding 


 


41

















 


principal
amount of the Loans (excluding the Loans of Defaulting Lenders) and the Senior
Subordinated Notes in the aggregate at such date, voting as a single class.


 


“Requirement of Law”
shall mean, as to any Person, the certificate of incorporation and by-laws or
other organizational or governing documents of such Person, and any law,
treaty, rule or regulation or determination of an arbitrator or a court or
other Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or assets or to which such Person or any of its
property or assets is subject.


 


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


 


“Restricted Subsidiary”
shall mean, at any time, any direct or indirect Subsidiary of the Borrower
(including any Foreign Subsidiary) that is not then an Unrestricted Subsidiary;
provided, however, that upon an
Unrestricted Subsidiary’s ceasing to be an Unrestricted Subsidiary, such
Subsidiary shall be included in the definition of “Restricted Subsidiary.”


 


“S&P” shall
mean Standard & Poor’s Ratings Services or any successor by merger or
consolidation to its business.


 


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


 


“SEC” shall mean
the Securities and Exchange Commission or any successor thereto.


 


“Second Commitment”
shall have the meaning provided in Section 9.8(b).


 


“Section 9.1
Financials” shall mean the financial statements delivered, or required
to be delivered, pursuant to Section 9.1(i) or (ii).


 


“Secured
Indebtedness” shall mean any Indebtedness of the Borrower or any of
its Restricted Subsidiaries secured by a Lien.


 


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


 


“Securitization”
shall mean a public or private offering by a Lender or any of its Affiliates or
their respective successors and assigns of securities or notes which represent
an interest in, or which are collateralized, in whole or in part, by the Loans
and the Lender’s rights under the Loan Documents.


 


“Senior Cash Pay Loans” shall mean Senior Interim Cash Pay Loans and/or Senior
Cash Pay Term Loans, as the context requires.


 


42

















 


“Senior Cash Pay Notes”
shall mean senior notes, to be issued in the refinancing of or exchange for the
Senior Cash Pay Loans under the Senior Refinancing Indenture, the Senior
Take-out Notes Indenture or any other indenture in an aggregate principal
amount of up to $3,750,000,000 (less the amount of any Senior Interim Cash Pay
Loans and Senior Cash Pay Term Loans that remain outstanding after the issuance
of the Senior Cash Pay Notes), together with interest, fees and all other
amounts payable in connection therewith.


 


“Senior Cash Pay Term Loans”
shall mean term loans outstanding under the Senior Unsecured Interim Loan Agreement
after conversion, on the Interim Loan Conversion Date, of the Senior Interim
Cash Pay Loans outstanding on such date.


 


“Senior Indebtedness”
shall mean:


 


(1)           all Indebtedness of the Borrower or any Guarantor outstanding under the
Senior Secured Credit Agreement, the Senior Take-out Notes Indenture, the
Senior Unsecured Interim Loan Agreement, any Senior Refinancing Indenture and
related guarantees (including interest accruing on or after the filing of any
petition in bankruptcy or similar proceeding or for reorganization of the
Borrower or any Guarantor (at the rate provided for in the documentation with
respect thereto, regardless of whether or not a claim for post-filing interest
is allowed in such proceedings)), and any and all other fees, expense reimbursement
obligations, indemnification amounts, penalties, and other amounts (whether
existing on the Original Closing Date or thereafter created or incurred) and
all obligations of the Borrower or any Guarantor to reimburse any bank or other
Person in respect of amounts paid under letters of credit, acceptances or other
similar instruments;


 


(2)           all Hedging Obligations (and guarantees thereof) owing to a Lender or
any Affiliate of such Lender (or any Person that was a Lender or an Affiliate
of such Lender at the time the applicable agreement giving rise to such Hedging
Obligation was entered into); provided that such Hedging Obligations are
permitted to be incurred under the terms of this Agreement;


 


(3)           any other Indebtedness of the Borrower or any Guarantor permitted to be
incurred under the terms of this Agreement, unless the instrument under which
such Indebtedness is incurred expressly provides that it is subordinated in
right of payment to Indebtedness outstanding under the Senior Secured Credit
Agreement, the Senior Unsecured Interim Loan Agreement or any related guarantee;
and


 


(4)           all Obligations with respect to the items listed in the preceding clauses
(1), (2) and (3);


 


provided, however, that Senior Indebtedness shall not include:


 


(a)           any obligation of such Person to the Borrower or any of its
Subsidiaries;


 


(b)           any liability for federal, state, local or other taxes owed or owing by
such Person;


 


43

















 


(c)           any accounts payable or other liability to trade creditors arising in
the ordinary course of business;


 


(d)           any Indebtedness or other Obligation of such Person which is
subordinate or junior in any respect to any other Indebtedness or other Obligation
of such Person; or


 


(e)           that portion of any Indebtedness which at the time of incurrence is incurred
in violation of this Agreement; provided, however
that such Indebtedness shall be deemed not to have been incurred in violation
of this Agreement for purposes of this clause if such Indebtedness consists of
Designated Senior Indebtedness, and the holder(s) of such Indebtedness or
their trustee, agent or representative (a) had no actual knowledge at the
time of incurrence that the incurrence of such Indebtedness violated this
Agreement and (b) shall have received a certificate from an officer of the
Borrower to the effect that the incurrence of such Indebtedness does not
violate the provisions of this Agreement.


 


“Senior Interim Cash Pay Loans”  shall have the meaning
provided in the recitals to this Agreement.


 


“Senior Interim Loans”  shall have the meaning
provided in the recitals to this Agreement.


 


“Senior Interim PIK Loans”
shall have the meaning provided in the recitals to this Agreement.


 


“Senior Notes”
shall mean Senior Cash Pay Notes and/or Senior PIK Notes, as the context
requires.


 


“Senior PIK Notes” shall mean senior PIK notes, to be issued in
connection with the refinancing of or exchange for the Senior Interim PIK Loans
under the Senior Refinancing Indenture, the Senior Take-out Notes Indenture or
any other indenture, in an aggregate principal amount of up to $2,750,000,000
(less the amount of any Senior Interim PIK Loans and Senior PIK Term Loans that
remain outstanding after the issuance of the Senior PIK Notes), together with
interest (including any PIK Interest Amount), fees and all other amounts
payable in connection therewith.


 


“Senior PIK Term Loans” shall mean term loans outstanding under the Senior
Unsecured Interim Loan Agreement after conversion, on the Interim Loan
Conversion Date, of the Senior Interim PIK Loans outstanding on such date.


 


“Senior Refinancing Indenture”  shall mean the indenture to
be entered into in connection with the refinancing of or the exchange of the
Senior Term Loans, among the Borrower, the Guarantors and a trustee, pursuant
to which the Senior Notes shall be issued, as the same may be amended, supplemented
or otherwise modified from time to time in accordance therewith. In the event
the Borrower elects to modify the Senior Take-out Notes Indenture to provide
for the issuance of any Senior Notes thereunder, references to the Senior
Refinancing Indenture shall be to, or shall include, as applicable, the Senior
Take-out Notes Indenture.


 


44

















 


“Senior Refinancing
Registration Rights Agreement” shall mean the registration rights
agreement to be entered into in connection with the exchange of the Senior Term
Loans, among the Borrower, the Guarantors and the Administrative Agent, relating
to rights given by the Borrower and the Guarantors to the holders of Senior
Notes to register such notes under the Securities Act.


 


“Senior Secured Original Closing Date Term Loans” shall have the meaning provided in the recitals to
this Agreement.


 


“Senior Secured Credit
Agreement” shall have the meaning provided in the recitals to this
Agreement.


 


“Senior Secured  Delayed Draw Term Loans”
shall have the meaning provided in the recitals to this Agreement.


 


“Senior Secured Revolving
Credit Loans”  shall
have the meaning provided in the recitals to this Agreement.


 


“Senior Subordinated Fixed Rate”  shall mean 11.25% per annum.


 


“Senior Subordinated Indebtedness”  shall mean:


 


(1)           with respect to the
Borrower, Indebtedness which ranks pari passu in
right of payment to the Indebtedness under this Agreement; and


 


(2)           with respect to any
Guarantor, Indebtedness which ranks pari passu in
right of payment to the Guarantee of such entity under the Guarantee.


 


“Senior Subordinated Interim Loan Commitment”  shall mean (a) in the
case of each Lender that is a Lender on the Original Closing Date, the amount
set forth opposite such Lender’s name on Schedule 1.1(a) as such
Lender’s “Senior Subordinated Interim Loan Commitment” and (b) in the case
of any Lender that becomes a Lender after the Original Closing Date, the amount
specified as such Lender’s “Senior Subordinated Interim Loan Commitment” in the
Assignment and Acceptance pursuant to which such Lender assumed a portion of
the Total Senior Subordinated Interim Loan Commitment, in each case as the same
may be changed from time to time pursuant to the terms hereof.  The aggregate amount of the Senior
Subordinated Interim Loan Commitments as of the Original Closing Date is
$2,500,000,000.


 


“Senior Subordinated
Interim Loans” shall have the meaning provided in Section 2.1(a).


 


“Senior Subordinated
Interim Loans  Requested Amount”  shall
have the meaning provided in Section 2.3(a).


 


“Senior Subordinated Loans” shall mean the Senior Subordinated Interim Loans
and/or the Senior Subordinated Term Loans, as the context requires.


 


45

















 


“Senior Subordinated Notes”
shall mean senior subordinated notes, to be issued in connection with the
refinancing of or exchange for the Senior Subordinated Loans under the Senior
Subordinated Refinancing Indenture or any other indenture, in an aggregate
principal amount of up to $2,500,000,000 (less the amount of any Senior
Subordinated Interim Loans and Senior Subordinated Term Loans that remain
outstanding after the issuance of the Senior Subordinated Notes), together with
interest, fees and all other amounts payable in connection therewith, and for
purposes of Section 5.2, any senior subordinated debt securities issued in
connection with the refinancing of the Senior Subordinated Interim Loans.


 


“Senior Subordinated Refinancing Indenture”  shall mean the indenture substantially
in the form attached as Exhibit B to be entered into in connection
with the exchange of the Senior Subordinated Term Loans, among the Borrower,
the Guarantors and a trustee, pursuant to which the Senior Subordinated Notes
shall be issued, as the same may be amended, supplemented or otherwise modified
from time to time in accordance therewith.


 


“Senior Subordinated Refinancing Registration Rights
Agreement”  shall
mean the registration rights agreement substantially in the form attached as Exhibit C
to be entered into in connection with the exchange of the Senior Subordinated
Loans, among the Borrower, the Guarantors and the Administrative Agent,
relating to rights given by the Borrower and the Guarantors to the holders of
Senior Subordinated Notes to register such notes under the Securities Act.


 


“Senior Subordinated Term
Loans” shall have the meaning provided in Section 2.14(a).


 


“Senior Take-out Notes”
shall have the meaning provided in the recitals to this Agreement.


 


“Senior Take-out Notes
Indenture” shall have the meaning provided in the recitals to this
Agreement.


 


“Senior Take-out Notes
Offering” shall have the meaning provided in the recitals to this
Agreement.


 


“Senior Term Loans”  shall mean Senior Cash Pay
Term Loans and/or Senior PIK Term Loans, as the context requires.


 


“Senior Unsecured Interim Loan Agreement”  shall have the meaning
provided in the recitals to this Agreement.


 


“Settlement”
shall mean the transfer of cash or other property with respect to any credit or
debit card charge, check or other instrument, electronic funds transfer, or
other type of paper-based or electronic payment, transfer, or charge
transaction for which a Person acts as a processor, remitter, funds recipient
or funds transmitter in the ordinary course of its business.


 


46

















 


“Settlement Asset”
shall mean any cash, receivable or other property, including a Settlement Receivable,
due or conveyed to a Person in consideration for a Settlement made or arranged,
or to be made or arranged, by such Person or an Affiliate of such Person.


 


“Settlement Indebtedness”
shall mean any payment or reimbursement obligation in respect of a Settlement
Payment.


 


“Settlement Lien”
shall mean any Lien relating to any Settlement or Settlement Indebtedness (and
may include, for the avoidance of doubt, the grant of a Lien in or other assignment
of a Settlement Asset in consideration of a Settlement Payment, Liens securing
intraday and overnight overdraft and automated clearing house exposure, and
similar Liens).


 


“Settlement Payment”
shall mean the transfer, or contractual undertaking (including by automated
clearing house transaction) to effect a transfer, of cash or other property to
effect a Settlement.


 


“Settlement Receivable”
shall mean any general intangible, payment intangible, or instrument
representing or reflecting an obligation to make payments to or for the benefit
of a Person in consideration for and in the amount of a Settlement made or
arranged, or to be made or arranged, by such Person.


 


“Significant Subsidiary”
shall mean any Restricted Subsidiary that would be a “significant subsidiary”
as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant
to the Securities Act, as such regulation is in effect on the Original Closing
Date.


 


“Similar
Business” shall mean any business conducted or proposed to be conducted
by the Borrower and its Restricted Subsidiaries on the Original Closing Date or
any business that is similar, reasonably related, incidental or ancillary
thereto.


 


“Solvent” shall
mean, with respect to any Person, that as of the Original Closing Date, (a) (i) the
sum of such Person’s debt (including contingent liabilities) did not exceed the
present fair saleable value of such Person’s present assets; (ii) such
Person’s capital was not unreasonably small in relation to its business as
contemplated on the Original Closing
Date; and (iii) such Person had not incurred and did not intend to incur,
or believe that it would incur, debts including current obligations beyond its
ability to pay such debts as they become due (whether at maturity or otherwise);
and (b) such Person was “solvent” within the meaning given that term and
similar terms under applicable laws relating to fraudulent transfers and
conveyances.  For purposes of this definition,
the amount of any contingent liability at any time shall be computed as the
amount that, in light of all of the facts and circumstances existing at such
time, represents the amount that can reasonably be expected to become an actual
or matured liability (irrespective of whether such contingent liabilities meet
the criteria for accrual under Statement of Financial Accounting Standard No. 5).


 


“Sponsor Management
Agreement” shall mean the management agreement between certain of
the management companies associated with the Investors and the Borrower.


 


47

















 


“Stock” shall
mean shares of capital stock or shares in the capital, as the case may be
(whether denominated as common stock or preferred stock or ordinary shares or
preferred shares, as the case may be), beneficial, partnership or membership
interests, participations or other equivalents (regardless of how designated)
of or in a corporation, partnership, limited liability company or equivalent
entity, whether voting or non-voting.


 


“Stock Equivalents”
shall mean all securities convertible into or exchangeable for Stock and all
warrants, options or other rights to purchase or subscribe for any Stock,
whether or not presently convertible, exchangeable or exercisable.


 


“Subordinated
Indebtedness” shall mean, with respect to the Senior Subordinated
Interim Loans,


 


(1)           any Indebtedness of the Borrower which is by its terms subordinated in
right of payment to the Senior Subordinated Interim Loans, and


 


(2)           any Indebtedness of any Guarantor which is by
its terms subordinated in right of payment to the Guarantee of such entity of
the Senior Subordinated Interim Loans.


 


“Subsidiary”
shall mean, with respect to any Person:


 


(1)           any corporation, association, or other business entity (other than a
partnership, joint venture, limited liability company or similar entity) of
which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time of
determination owned or controlled, directly or indirectly, by such Person or
one or more of the other Subsidiaries of that Person or a combination thereof
or is consolidated under GAAP with such Person at such time; and


 


(2)           any partnership, joint venture, limited liability company or similar
entity of which


 


(x)            more than 50% of the capital accounts,
distribution rights, total equity and voting interests or general or limited
partnership interests, as applicable, are owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of that
Person or a combination thereof whether in the form of membership, general,
special or limited partnership or otherwise, and


 


(y)           such Person or any Restricted Subsidiary of
such Person is a controlling general partner or otherwise controls such entity.


 


“Successor Borrower”
shall have the meaning provided in Section 9.14(a)(1).


 


“Syndication Agent”
shall mean Credit Suisse together with its Affiliates, as syndication agent for
the Lenders under this Agreement and the other Loan Documents.


 


48

















 


“Taxes” shall
mean any and all present or future taxes, duties, levies, imposts, assessments,
deductions, withholdings or other similar charges imposed by any Governmental Authority
whether computed on a separate, consolidated, unitary, combined or other basis
and any interest, fines, penalties or additions to tax with respect to the
foregoing.


 


“Test Period”
shall mean, for any determination under this Agreement, the four consecutive fiscal
quarters of the Borrower then last ended.


 


“Total Assets”
shall mean, with respect to any Person, the total assets of such Person on a
consolidated basis, as shown on the most recent consolidated balance sheet of
the Borrower or such other Person as may be expressly stated (excluding
settlement assets, as shown on such balance sheet).


 


“Total Credit Exposure”
shall mean, at any date, the aggregate outstanding principal amount of all
Loans at such date.


 


“Total Senior Subordinated
Interim Loan Commitment” shall mean the sum of Senior Subordinated
Interim Loan Commitments of all Lenders.


 


“Transaction Expenses”
shall mean any fees or expenses incurred or paid by the Borrower or any of its
Subsidiaries in connection with the Transactions, the Original Senior
Subordinated Loan Agreement and the other Loan Documents and the transactions
contemplated thereby.


 


“Transactions”
shall mean, collectively, the transactions contemplated by this Agreement, the
Senior Secured Credit Agreement, the Senior Unsecured Interim Loan Agreement,
the Merger, the Equity Investments, the Debt Repayment and any repayment,
repurchase, prepayment or defeasance of Indebtedness of the Borrower or any of
its Subsidiaries in connection therewith as in effect on the Original Closing
Date.


 


“Transferee” shall
have the meaning provided in Section 13.6(e).


 


“Trustee” shall
have the meaning provided in Section 2.14(b)(iv).


 


“Type” shall
mean as to any Loan, its nature as an ABR Loan or a LIBOR Loan.


 


“Unfunded Current Liability”
of any Plan shall mean the amount, if any, by which the Accumulated Benefit
Obligation (as defined under Statement of Financial Accounting Standards No. 87
(“SFAS 87”)) under the Plan as of the
close of its most recent plan year, determined in accordance with SFAS 87 as in
effect on the Original
Closing Date, exceeds the fair market value of the assets allocable
thereto.


 


“Unrestricted Subsidiary”
shall mean:


 


(1)           any Subsidiary of the Borrower which at the time of determination is an
Unrestricted Subsidiary (as designated by the Borrower, as provided below); and


 


(2)           any Subsidiary of an Unrestricted Subsidiary.


 


49

















 


The Borrower may designate any Subsidiary of the
Borrower (including any existing Subsidiary and any newly acquired or newly formed
Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any of
its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds
any Lien on, any property of, the Borrower or any Subsidiary of the Borrower
(other than solely any Subsidiary of the Subsidiary to be so designated); provided that


 


(1)           any Unrestricted Subsidiary must be an entity of which the Equity Interests
entitled to cast at least a majority of the votes that may be cast by all
Equity Interests having ordinary voting power for the election of directors or
Persons performing a similar function are owned, directly or indirectly, by the
Borrower;


 


(2)           such designation complies with Section 9.5 hereof; and


 


(3)           each of:


 


(a)           the
Subsidiary to be so designated; and


 


(b)           its
Subsidiaries


 


has not at the time of
designation, and does not thereafter, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable with respect to any Indebtedness
pursuant to which the lender has recourse to any of the assets of the Borrower
or any Restricted Subsidiary.


 


The Borrower may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that, immediately after giving effect to such
designation, no Default shall have occurred and be continuing and either:


 


(1)           the Borrower could incur at least $1.00 of additional Indebtedness pursuant
to the Fixed Charge Coverage Ratio test described in Section 9.7(a) hereof;
or


 


(2)           the Fixed Charge Coverage Ratio for the Borrower and its Restricted Subsidiaries
would be greater than such ratio for the Borrower and its Restricted
Subsidiaries immediately prior to such designation,


 


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


 


Any such designation by the Borrower shall be notified
by the Borrower to the Administrative Agent by promptly filing with the
Administrative Agent a copy of the resolution of the board of directors of the
Borrower or any committee thereof giving effect to such designation and an
Officer’s Certificate certifying that such designation complied with the foregoing
provisions.


 


“U.S.” or “United States” shall mean the United States of America.


 


“U.S. Lender”
shall have the meaning provided in Section 5.4(i).


 


50
















 


“Voting Stock”
of any Person as of any date shall mean the Capital Stock of such Person that
is at such date entitled to vote in the election of the board of directors of
such Person.


 


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


 


(1)           the sum of the products of the number of years from the date of
determination to the date of each successive scheduled principal payment of
such Indebtedness or redemption or similar payment with respect to such
Disqualified Stock or Preferred Stock multiplied by the amount of such payment;
by


 


(2)           the sum of all such payments.


 


“Wholly Owned Subsidiary”
of any Person shall mean a Subsidiary of such Person, 100% of the outstanding
Equity Interests of which (other than directors’ qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Subsidiaries of
such Person.


 


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


 


(a)              The meanings of
defined terms are equally applicable to the singular and plural forms of the defined
terms.


 


(b)              The words “herein,” “hereto,”
“hereof” and “hereunder” and words of similar import when used in any Loan
Document shall refer to such Loan Document as a whole and not to any particular
provision thereof.


 


(c)              Article, Section, Exhibit and
Schedule references are to the Loan Document in which such reference appears.


 


(d)              The term “including”
is by way of example and not limitation.


 


(e)              The term “documents”
includes any and all instruments, documents, agreements, certificates, notices,
reports, financial statements and other writings, however evidenced, whether in
physical or electronic form.


 


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


 


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


 


51

















 


(h)              To the extent any
provision of the Senior Subordinated Refinancing Indenture is deemed to be
incorporated and set forth in this Agreement, (i) any reference to the “Issuer”
or the “Company” in the Senior Subordinated Refinancing Indenture shall be
deemed to be a reference to the Borrower, (ii) any reference to a “Holder”
in the Senior Subordinated Refinancing Indenture shall be deemed to be a
reference to a Lender, (iii) any reference to the “Trustee” in the Senior
Subordinated Refinancing Indenture shall be deemed to be a reference to the
Administrative Agent, (iv) any reference to the “Notes” in the Senior
Subordinated Refinancing Indenture shall be deemed to be a reference to the
Loans and (v) any reference to “this Indenture” in the Senior Subordinated
Refinancing Indenture shall be deemed to be a reference to this Agreement and
the other Loan Documents, in each case as the context may require.


 


1.3.            Accounting Terms.


 


All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in conformity
with, GAAP.


 


1.4.            [Reserved]


 


1.5.            References to
Agreements, Laws, Etc.  Unless
otherwise expressly provided herein, (a) references to organizational
documents, agreements (including the Loan Documents) and other Contractual
Requirements shall be deemed to include all subsequent amendments,
restatements, amendment and restatements, extensions, supplements and other
modifications thereto, but only to the extent that such amendments,
restatements, amendment and restatements, extensions, supplements and other
modifications are permitted by any Loan Document; and (b) references to
any Requirement of Law shall include all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting such Requirement
of Law.


 


1.6.          [Reserved]


 


SECTION 2.              Amount and Terms
of Credit


 


2.1.            Commitments.


 


(a)           Subject to and upon the terms and conditions
herein set forth, each Lender made a loan or loans (each, a “Senior  Subordinated
Interim Loan”) in a single draw on the Original Closing Date to the Borrower
in Dollars, which Senior Subordinated Interim Loans did not exceed for any such
Lender the Senior Subordinated Interim Loan Commitment of such Lender and in
the aggregate equaled $2,500,000,000.


 


Such Senior
Subordinated Interim Loans (i) shall be incurred and maintained (except as
provided in Sections 2.6 and 2.10) as LIBOR Loans, (ii) may
be repaid or prepaid in accordance with the provisions hereof, but once repaid
or prepaid, may not be reborrowed, (iii) shall not exceed for any such
Lender the Senior Subordinated Interim Loan Commitment of such Lender and (iv) 


 


52

















 


shall not
exceed in the aggregate the Total Senior Subordinated Interim Loan
Commitment.  On the Maturity Date, the
Borrower shall repay all then unpaid Loans in full in Dollars.


 


(b)           Each Lender may at its option make any LIBOR
Loan by causing any domestic or foreign branch or Affiliate of such Lender to
make such Loan, provided that (A) any exercise of such option shall
not affect the obligation of the Borrower to repay such Loan and (B) in
exercising such option, such Lender shall use its reasonable efforts to
minimize any increased costs to the Borrower resulting therefrom (which
obligation of the Lender shall not require it to take, or refrain from taking,
actions that it determines would result in increased costs for which it will
not be compensated hereunder or that it determines would be otherwise
disadvantageous to it and in the event of such request for costs for which
compensation is provided under this Agreement, the provisions of Section 2.10
shall apply).


 


2.2.            Maximum Number of
Borrowings.  More than one Borrowing
may be incurred on any date, provided that at no time shall there be
outstanding more than 30 Borrowings of LIBOR Loans under this Agreement.


 


2.3.            Notice of Borrowing.


 


(a)           The Borrower gave the Administrative Agent
at the Administrative Agent’s Office on the Original Closing Date, the notice
of the Borrowing of the Senior Subordinated Interim Loans.  Such notice (a “Notice of
Borrowing”) specified (i) the aggregate principal amount of the
Senior Subordinated Interim Loans to be borrowed (the “Senior Subordinated Interim Loans Requested Amount”) (such Senior Subordinated Interim
Loans Requested Amount not to exceed in the aggregate the Total Senior
Subordinated Interim Loan Commitment), (ii) the date of the Borrowing
(which was the Original Closing
Date) and (iii) the Interest Period to be initially applicable
thereto.  The Administrative Agent
promptly gave each Lender written notice (or telephonic notice promptly
confirmed in writing) of the Borrowing of Senior Subordinated Interim Loans, of
such Lender’s proportionate share thereof and of the other matters covered by
the related Notice of Borrowing.


 


(b)           Without in any way limiting the obligation
of the Borrower to confirm in writing any notice it may give hereunder by
telephone, the Administrative Agent may act prior to receipt of written
confirmation without liability upon the basis of such telephonic notice believed
by the Administrative Agent in good faith to be from an Authorized Officer of
the Borrower.


 


2.4.            Disbursement of
Funds.


 


(a)           No later than 2:00 p.m. (New York City
time) on the date specified in the Notice of Borrowing, each Lender made available
its pro rata portion, if any, of each Borrowing
made on the Original Closing Date in the manner provided below; provided
that such funds were made available at such earlier time as was agreed among
the Lenders, the Borrower and the Administrative Agent for the purpose of
consummating the Transactions.


 


(b)           Each Lender made available all amounts it
was to fund to the Borrower under the Borrowing for its applicable Commitments,
and in immediately available funds to the 


 


53

















 


Administrative Agent at the Administrative Agent’s Office and the
Administrative Agent made available to the Borrower, by depositing to an
account designated by the Borrower to the Administrative Agent the aggregate of
the amounts so made available in Dollars. 
Unless the Administrative Agent had been notified by any Lender prior to
the date of the Borrowing that such Lender did not intend to make available to
the Administrative Agent its portion of the Borrowing made on such date, the
Administrative Agent may assume that such Lender made such amount available to
the Administrative Agent on the date of the Borrowing, and the Administrative
Agent, in reliance upon such assumption, (in its sole discretion and without
any obligation to do so) made available to the Borrower a corresponding
amount.  If such corresponding amount is
not in fact made available to the Administrative Agent by such Lender and the Administrative
Agent made available such amount to the Borrower, the Administrative Agent
shall be entitled to recover such corresponding amount from such Lender.  If such Lender did not pay such corresponding
amount forthwith upon the Administrative Agent’s demand therefor the
Administrative Agent shall promptly notify the Borrower and the Borrower shall
immediately pay such corresponding amount to the Administrative Agent in
Dollars.  The Administrative Agent shall
also be entitled to recover from such Lender or the Borrower interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Administrative Agent to the Borrower to the
date such corresponding amount is recovered by the Administrative Agent, at a
rate per annum equal to (i) if paid by
such Lender, the Overnight Rate or (ii) if paid by the Borrower, the
then-applicable rate of interest or fees, calculated in accordance with Section 2.8,
for the respective Loans.


 


(c)           Nothing in this Section 2.4
shall be deemed to relieve any Lender from its obligation to, fulfill its commitments
hereunder or to prejudice any rights that the Borrower may have against any
Lender as a result of any default by such Lender hereunder (it being understood,
however, that no Lender shall be responsible for the failure of any other
Lender to fulfill its commitments hereunder).


 


2.5.            Repayment of Loans;
Evidence of Debt.


 


(a)           The Borrower shall repay to the
Administrative Agent, for the benefit of the Lenders, on the Term Loan Maturity
Date, the then-outstanding Loans, in Dollars.


 


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


 


(c)           The Administrative Agent shall maintain the
Register pursuant to Section 13.6(b), and a subaccount for each Lender,
in which Register and subaccounts (taken together) shall be recorded (i) the
amount of each Loan made hereunder, the Type of each Loan made and the Interest
Period, if any, applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder from the Borrower and each Lender’s share
thereof.


 


54

















 


(d)           The entries made in the Register and
accounts and subaccounts maintained pursuant to clauses (b) and (c) of
this Section 2.5 shall, to the extent permitted by applicable law,
be prima facie evidence of the existence and amounts of the obligations of the
Borrower therein recorded; provided, however, that the failure of
any Lender or the Administrative Agent to maintain such account, such Register
or subaccount, as applicable, or any error therein, shall not in any manner
affect the obligation of the Borrower to repay (with applicable interest) the
Loans made to the Borrower by such Lender in accordance with the terms of this
Agreement.


 


2.6.            Conversions and
Continuations.


 


(a)           Subject to the penultimate sentence of this clause
(a), (x) the Borrower shall have the option, subject to Section 2.10,
on any Business Day to convert all or a portion equal to at least $5,000,000 of
the outstanding principal amount of one Type into a Borrowing or Borrowings of
another Type and (y) the Borrower shall have the option on any Business
Day to continue the outstanding principal amount of any LIBOR Loans as LIBOR
Loans for an additional Interest Period, provided that (i) ABR
Loans may not be converted into LIBOR Loans if a Default or Event of Default is
in existence on the date of the conversion and the Administrative Agent has or
the Required Lenders have determined in its or their sole discretion not to
permit such conversion, (ii) LIBOR Loans may not be continued as LIBOR
Loans for an additional Interest Period if a Default or Event of Default is in
existence on the date of the proposed continuation and the Administrative Agent
has or the Required Lenders have determined in its or their sole discretion not
to permit such continuation and (iii) Borrowings resulting from conversions
pursuant to this Section 2.6 shall be limited in number as provided
in Section 2.2.  Each such
conversion or continuation shall be effected by the Borrower by giving the
Administrative Agent at the Administrative Agent’s Office prior to 1:00 p.m.
(New York City time) at least (i) three Business Days’ prior written
notice (or telephonic notice promptly confirmed in writing) in the case of a
continuation of or conversion to LIBOR Loans (other than in the case of a
notice delivered on the Original Closing
Date pursuant to clause (c), which shall be deemed to be effective on the Original Closing Date) or (ii) one
Business Day’s prior written notice (or telephonic notice promptly confirmed in
writing) in the case of a conversion into ABR Loans  (each, a “Notice of
Conversion or Continuation”) specifying the Loans to be so converted
or continued, the Type of Loans to be converted or continued into and, if such
Loans are to be converted into or continued as LIBOR Loans, the Interest Period
to be initially applicable thereto.  The
Administrative Agent shall give each applicable Lender notice as promptly as
practicable of any such proposed conversion or continuation affecting any of
its Loans.


 


(b)           If any Default or Event of Default is in
existence at the time of any proposed continuation of any LIBOR Loans
denominated in Dollars and the Administrative Agent has or the Required Lenders
have determined in its or their sole discretion not to permit such
continuation, such LIBOR Loans shall be automatically converted on the last day
of the current Interest Period into ABR Loans. 
If upon the expiration of any Interest Period in respect of LIBOR Loans,
the Borrower has failed to elect a new Interest Period to be applicable thereto
as provided in clause (a), the Borrower shall be deemed to have elected
to convert such Borrowing of LIBOR Loans into a Borrowing of ABR Loans,
effective as of the expiration date of such current Interest Period.


 


55

















 


(c)           Notwithstanding anything to the contrary
herein, the Borrower may deliver a Notice of Conversion or Continuation
pursuant to which the Borrower elects to irrevocably continue the outstanding
principal amount of any Loans subject to an interest rate Hedging Obligations
as LIBOR Loans for each Interest Period until the expiration of the term of
such applicable Hedging Obligations.


 


2.7.            Pro Rata Borrowings.  Each Borrowing of Senior Subordinated Interim
Loans under this Agreement shall be made by the Lenders pro rata
on the basis of their then-applicable Senior Subordinated Interim
Commitments.  It is understood that (a) no
Lender shall be responsible for any default by any other Lender in its
obligation to make Loans hereunder and that each Lender severally but not
jointly shall be obligated to make the Loans provided to be made by it
hereunder, regardless of the failure of any other Lender to fulfill its
commitments hereunder and (b) other than as expressly provided herein with
respect to a Defaulting Lender, failure by a Lender to perform any of its obligations
under any of the Loan Documents shall not release any Person from performance
of its obligation under any Loan Document.


 


2.8.            Interest.


 


(a)           The unpaid principal amount of each Senior
Subordinated Loan that is an ABR Loan shall bear interest from the date of the
Borrowing thereof until maturity thereof (whether by acceleration or otherwise)
at a rate per annum that shall at all times be the
Applicable ABR Margin plus the ABR, in effect from time to time.


 


(b)           The unpaid principal amount of each Senior
Subordinated Loan that is a LIBOR Loan shall bear interest from the date of the
Borrowing thereof until maturity thereof (whether by acceleration or otherwise)
at a rate per annum that shall at all times be the
Applicable LIBOR Margin plus the relevant LIBOR Rate.


 


(c)           If all or a portion of (i) the
principal amount of any Loan or (ii) any interest payable thereon shall
not be paid when due (whether at the stated maturity, by acceleration or otherwise),
such overdue amount shall bear interest at a rate per annum
that is (the “Default Rate”) (x) in the
case of overdue principal, the rate that would otherwise be applicable thereto plus
2% or (y) in the case of any overdue interest, to the extent permitted by
applicable law, the rate described in Section 2.8(a) plus
2% from the date of such non-payment to the date on which such amount is paid
in full (after as well as before judgment).


 


(d)           Interest on each Loan shall accrue from and
including the date of any Borrowing to but excluding the date of any repayment
thereof and shall be payable in Dollars; provided that any Loan that is
repaid on the same date on which it is made shall bear interest for one
day.  Except as provided below, interest
shall be payable (i) in respect of each ABR Loan, quarterly in arrears on
the last Business Day of each March, June, September and December (provided
that the first such payment shall be on December 31, 2007), (ii) in
respect of each LIBOR Loan, on the last day of each Interest Period applicable
thereto and, in the case of an Interest Period in excess of three months, on
each date occurring at three-month intervals after the first day of such
Interest Period, (iii) in respect of each Loan, (A) on any
prepayment, (B) at maturity (whether by acceleration or otherwise) and (C) after
such maturity, on demand.


 


56

















 


(e)           All computations of interest hereunder shall
be made in accordance with Section 5.5.


 


(f)            The Administrative Agent, upon determining
the interest rate for any Borrowing of LIBOR Loans, shall promptly notify the
Borrower and the Lenders thereof.  Each
such determination shall, absent clearly demonstrable error, be final and
conclusive and binding on all parties hereto.


 


2.9.            Interest Periods.  At the time the Borrower gives a Notice of
Borrowing or Notice of Conversion or Continuation in respect of the making of,
or conversion into or continuation as, a Borrowing of LIBOR Loans in accordance
with Sections 2.3(a) and 2.6(a), the Borrower shall give the
Administrative Agent written notice (or telephonic notice promptly confirmed in
writing) of the Interest Period applicable to such Borrowing, which Interest
Period shall, at the option of the Borrower be a one, two, three or six month period.


 


Notwithstanding anything to the contrary
contained above:


 


(a)              the initial Interest
Period for any Borrowing of LIBOR Loans shall commence on the date of such
Borrowing (including the date of any conversion from a Borrowing of ABR Loans)
and each Interest Period occurring thereafter in respect of such Borrowing
shall commence on the day on which the next preceding Interest Period expires;


 


(b)              if any Interest
Period relating to a Borrowing of LIBOR Loans begins on the last Business Day
of a calendar month or begins on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period, such Interest
Period shall end on the last Business Day of the calendar month at the end of
such Interest Period;


 


(c)              if any Interest
Period would otherwise expire on a day that is not a Business Day, such
Interest Period shall expire on the next succeeding Business Day, provided
that if any Interest Period in respect of a LIBOR Loan would otherwise expire
on a day that is not a Business Day but is a day of the month after which no
further Business Day occurs in such month, such Interest Period shall expire on
the next preceding Business Day; and


 


(d)              the Borrower shall
not be entitled to elect any Interest Period in respect of any LIBOR Loan if
such Interest Period would extend beyond the Maturity Date of such Loan.


 


2.10.          Increased Costs,
Illegality, Etc.


 


(a)           In the event that (x) in the case of clause
(i) below, the Administrative Agent or (y) in the case of clauses
(ii) and (iii) below, any Lender shall have reasonably
determined (which determination shall, absent clearly demonstrable error, be
final and conclusive and binding upon all parties hereto):


 


57

















 


  (i)          on any date for determining
the LIBOR Rate for any Interest Period that (x) deposits in the principal
amounts and currencies of the Loans comprising such LIBOR Borrowing are not
generally available in the relevant market or (y) by reason of any changes
arising on or after the Original Closing
Date affecting the interbank LIBOR market, adequate and fair means do not exist
for ascertaining the applicable interest rate on the basis provided for in the
definition of LIBOR Rate; or


 


 (ii)          at any time, that such Lender shall incur
increased costs or reductions in the amounts received or receivable hereunder
with respect to any LIBOR Loans (other than any increase or reduction
attributable to Taxes, described in paragraph (d) of this Section 2.10)
because of (x) any change since the Original
Closing Date in any applicable law, governmental rule, regulation,
guideline or order (or in the interpretation or administration thereof and
including the introduction of any new law or governmental rule, regulation,
guideline or order), such as, for example, without limitation, a change in official
reserve requirements, and/or (y) other circumstances affecting the
interbank LIBOR market or the position of such Lender in such market; or


 


(iii)          at any time, that the making or continuance
of any LIBOR Loan has become unlawful by compliance by such Lender in good
faith with any law, governmental rule, regulation, guideline or order (or would
conflict with any such governmental rule, regulation, guideline or order not
having the force of law even though the failure to comply therewith would not
be unlawful), or has become impracticable as a result of a contingency
occurring after the Original Closing
Date that materially and adversely affects the interbank LIBOR market;


 


then, and in
any such event, such Lender (or the Administrative Agent, in the case of clause
(i) above) shall within a reasonable time thereafter give notice (if
by telephone, confirmed in writing) to the Borrower and to the Administrative
Agent of such determination (which notice the Administrative Agent shall
promptly transmit to each of the other Lenders).  Thereafter (x) in the case of clause (i) above,
LIBOR Loans shall no longer be available until such time as the Administrative
Agent notifies the Borrower and the Lenders that the circumstances giving rise
to such notice by the Administrative Agent no longer exist (which notice the
Administrative Agent agrees to give at such time when such circumstances no
longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation
given by the Borrower with respect to LIBOR Loans that have not yet been
incurred shall be deemed rescinded by the Borrower, (y) in the case of clause
(ii) above, the Borrower shall pay to such Lender, promptly after
receipt of written demand therefor such additional amounts (in the form of an
increased rate of, or a different method of calculating, interest or otherwise
as such Lender in its reasonable discretion shall determine) as shall be
required to compensate such Lender for such increased costs or reductions in
amounts receivable hereunder (it being agreed that a written notice as to the
additional amounts owed to such Lender, showing in reasonable detail the basis
for the calculation thereof, submitted to the Borrower by such Lender shall,
absent clearly demonstrable error, be final and conclusive and binding upon all
parties hereto) and (z) in the case of subclause (iii) above,
the Borrower shall take one of the actions specified in subclause (x) or
(y), as applicable, of Section 2.10(b) as promptly as
possible and, in any event, within the time period required by law.


 


58

















 


(b)                                         At
any time that any LIBOR Loan is affected by the circumstances described in Section 2.10(a)(ii) or
(iii), the Borrower may (and in the case of a LIBOR Loan affected
pursuant to Section 2.10(a)(iii) shall) either (x) if the
affected LIBOR Loan is then being made pursuant to a Borrowing, cancel such
Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly
in writing) thereof on the same date that the Borrower was notified by a Lender
pursuant to Section 2.10(a)(ii) or (iii) or (y) if
the affected LIBOR Loan is then outstanding, upon at least three Business Days’
notice to the Administrative Agent, require the affected Lender to convert each
such LIBOR Loan into an ABR Loan, provided that if more than one Lender
is affected at any time, then all affected Lenders must be treated in the same
manner pursuant to this Section 2.10(b).


 


(c)                                  If,
after the Original Closing Date,
any Change in Law relating to capital adequacy of any Lender or compliance by
any Lender or its parent with any Change in Law relating to capital adequacy
occurring after the Original Closing
Date, has or would have the effect of reducing the rate of return on
such Lender’s or its parent’s or its Affiliate’s capital or assets as a consequence
of such Lender’s commitments or obligations hereunder to a level below that
which such Lender or its parent or its Affiliate could have achieved but for
such Change in Law (taking into consideration such Lender’s or its parent’s
policies with respect to capital adequacy), then from time to time, promptly
after demand by such Lender (with a copy to the Administrative Agent), the
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender or its parent for such reduction, it being understood
and agreed, however, that a Lender shall not be entitled to such compensation
as a result of such Lender’s compliance with, or pursuant to any request or
directive to comply with, any law, rule or regulation as in effect on the Original Closing Date.  Each Lender, upon determining in good faith
that any additional amounts will be payable pursuant to this Section 2.10(c),
will give prompt written notice thereof to the Borrower, which notice shall set
forth in reasonable detail the basis of the calculation of such additional
amounts, although the failure to give any such notice shall not, subject to Section 2.13,
release or diminish the Borrower’s obligations to pay additional amounts
pursuant to this Section 2.10(c) upon receipt of such notice.


 


(d)                                 It
is understood that this Section 2.10 shall not apply to (i) Taxes
indemnifiable under Section 5.4, (ii) net income taxes and
franchise and excise taxes (imposed in lieu of net income taxes) imposed on any
Agent or Lender or (iii) Taxes described under clauses (b) and
(c) of the definition of Excluded Taxes.


 


2.11                           Compensation.  If (a) any payment of principal of any
LIBOR Loan is made by the Borrower to or for the account of a Lender other than
on the last day of the Interest Period for such LIBOR Loan as a result of a
payment or conversion pursuant to Section 2.5, 2.6, 2.10,
5.1, 5.2 or 13.7, as a result of acceleration of the
maturity of the Loans pursuant to Section 11 or for any other
reason, (b) any Borrowing of LIBOR Loans is not made as a result of a withdrawn
Notice of Borrowing, (c) any ABR Loan is not converted into a LIBOR Loan
as a result of a withdrawn Notice of Conversion or Continuation, (d) any
LIBOR Loan is not continued as a LIBOR Loan, as the case may be, as a result of
a withdrawn Notice of Conversion or Continuation or (e) any prepayment of
principal of any LIBOR Loan is not made as a result of a withdrawn notice of prepayment
pursuant to Section 5.1 or 5.2, the Borrower shall, after
receipt of a written request by such Lender (which request shall set forth in
reasonable detail the basis for 


 


59

















 


requesting
such amount), pay to the Administrative Agent for the account of such Lender
any amounts required to compensate such Lender for any additional losses, costs
or expenses that such Lender may reasonably incur as a result of such payment,
failure to convert, failure to continue or failure to prepay, including any
loss, cost or expense (excluding loss of anticipated profits) actually incurred
by reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender to fund or maintain such LIBOR Loan.


 


2.12         Change of Lending Office.  Each Lender agrees that, upon the occurrence
of any event giving rise to the operation of Section 2.10(a)(ii), 2.10(a)(iii),
2.10(b) or 5.4 with respect to such Lender, it will, if
requested by the Borrower use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any
Loans affected by such event, provided that such designation is made on
such terms that such Lender and its lending office suffer no economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of any such Section.  Nothing in this Section 2.12
shall affect or postpone any of the obligations of the Borrower or the right of
any Lender provided in Section 2.10 or 5.4.


 


2.13.        Notice of Certain Costs.  Notwithstanding anything in this Agreement to
the contrary, to the extent any notice required by Section 2.10, 2.11
or 5.4 is given by any Lender more than 120 days after such Lender has knowledge
(or should have had knowledge) of the occurrence of the event giving rise to
the additional cost, reduction in amounts, loss, tax or other additional
amounts described in such Sections, such Lender shall not be entitled to
compensation under Section 2.10, 2.11 or 5.4, as the
case may be, for any such amounts incurred or accruing prior to the 121st day
prior to the giving of such notice to the Borrower.


 


2.14         Permanent Refinancing.


 


(a)         On
the Interim Loan Conversion Date, all outstanding Senior Subordinated Interim
Loans shall be converted into term loans (each, a “Senior
Subordinated Term Loan”) having an aggregate principal amount equal
to the unpaid principal amount of such Senior Subordinated  Interim
Loans, in each case to the extent such Loans are not repaid in whole or in part
in cash or on or prior to such date.


 


(b)        (i) On
the fifteenth (15th) day of each calendar month (each, an “Exchange
Date”), or if such day is not a Business Day, the preceding
Business Day, on or after the Interim Loan Conversion Date, at the option of
the applicable Lender, the Senior Subordinated Term Loans may be exchanged in
whole or in part for one or more Senior Subordinated Notes having an aggregate
principal amount equal to the unpaid principal amount of such Senior
Subordinated Term Loans; provided, however, that the Borrower
shall not be required to issue Senior Subordinated Notes until the Borrower
shall have received requests to issue at least $150,000,000 in aggregate
principal amount of Senior Subordinated Notes and that the amount of Senior
Subordinated Term Loans exchanged for Senior Subordinated Notes must be in excess
of $1,000,000 in principal amount.


 


(ii)         Such Lender shall provide the Borrower prior
irrevocable written notice of such election (each such notice, an “Exchange Notice”), substantially in the form of Exhibit D,
at least five Business Days prior to the date of exchange.  The Exchange Notice shall specify 


 


60

















 


the principal amount of Senior Subordinated
Term Loans to be exchanged and, subject to the terms of the Senior Subordinated
Refinancing Indenture, the name of the proposed registered holder and the
amount of each Senior Subordinated Note requested.  Senior Subordinated Term Loans exchanged for
Senior Subordinated Notes pursuant to this Section 2.14 shall be
deemed repaid and canceled, and the Senior Subordinated Notes so issued shall
be governed by and construed in accordance with the provisions of the Senior
Subordinated Refinancing Indenture.  The
Senior Subordinated Notes shall be issued in the form set forth in the Senior
Subordinated Refinancing Indenture.


 


(iii)        As more particularly
provided in the Senior Subordinated Refinancing Indenture, (A) Senior
Subordinated Notes issued pursuant to the Senior Subordinated Refinancing Indenture
shall bear interest at the rate applicable to Senior Subordinated Term Loans
(unless a Lender shall elect to have the interest rate fixed at the rate applicable
to Senior Subordinated Term Loans in effect on the date of such exchange if
necessary to effect an actual bona fide sale of Senior Subordinated Notes on
such date to a third party that is not an Affiliate of  such Lender), and (B) Senior
Subordinated Notes issued pursuant to the Senior Subordinated Refinancing Indenture
(I) shall mature on March 31, 2016 and (II) shall be redeemable
as set forth in the Senior Subordinated Refinancing Indenture and the
applicable form of Senior Subordinated Notes attached thereto.


 


(iv)       Not later than five
Business Days after the Exchange Date following delivery of any Exchange
Notice, the Borrower shall (A) deliver a written notice to the trustee under
the Senior Subordinated Refinancing Indenture (the “Trustee”), directing
such Trustee to authenticate and deliver Senior Subordinated Notes as specified
in the Exchange Notice and (B) use all commercially reasonable efforts to
effect delivery of such Senior Subordinated Notes to the requesting Lender.


 


(c)           The Borrower agrees that as a condition to
the effectiveness of the exchange of Senior Subordinated Term Loans for Senior
Subordinated Notes:


 


  (i)          The Borrower shall have
selected a bank or trust company reasonably acceptable to the Lenders to act as
Trustee for the Senior Subordinated Notes.


 


 (ii)          The Borrower shall have issued the Senior
Subordinated Notes pursuant to the Senior Subordinated Refinancing Indenture
substantially in the applicable form set forth therein, and the Borrower and
each Guarantor shall have executed and delivered the Senior Subordinated Refinancing
Indenture.


 


(iii)          The Borrower and each Guarantor shall have
provided to the Administrative Agent copies of resolutions of its board of
directors approving the execution and delivery of the Senior Subordinated
Refinancing Indenture and, in the case of the Borrower, the issuance of the
Senior Subordinated Notes, together with a customary certificate of the
secretary of the Borrower or such Guarantor certifying such resolutions.


 


(iv)          The Borrower and each Guarantor shall have
executed and delivered the Senior Subordinated Refinancing Registration Rights
Agreement.


 


61

















 


 (v)          The Borrower and each Guarantor shall have
provided to the Lenders copies of resolutions of its Board of Directors
approving the execution and delivery of the Senior Subordinated Refinancing
Registration Rights Agreement, together with a customary certificate of the
secretary of the Borrower or such Guarantor certifying such resolutions.


 


(d)           If the foregoing conditions set forth in Section 2.14(c) are
not satisfied on the Interim Loan Conversion Date, then the Lenders shall
retain all of their rights and remedies with respect to the Senior Subordinated
Term Loans pursuant to this Agreement until such conditions are satisfied and
the Senior Subordinated Term Loans are so exchanged for Senior Subordinated
Notes.  The Borrower agrees to satisfy
the conditions set forth in Section 2.14(c) no later than ten
Business Days after receipt of the first Exchange Notice.


 


(e)           Nothing in this Section 2.14
shall prevent or limit the ability of the Borrower from repaying or refinancing
the Loans in any other manner not otherwise prohibited by this Agreement.


 


SECTION 3.              [Reserved]


 


SECTION 4.              Fees; Commitments


 


4.1.            Administrative
Agent’s Fees.  The Borrower agrees to
pay, or cause to be paid, to the Administrative Agent, solely for its own
account, an annual administrative fee equal to $100,000 per annum, payable annually in advance on
the Original Closing Date for
the twelve-month period following the Original
Closing Date and on each anniversary thereof until all Loans and all
Obligations with respect thereto have been paid in full.


 


4.2.            [Reserved].


 


4.3.            Mandatory
Termination of Commitments.  The
Senior Subordinated Interim Loan Commitments terminated at 5:00 p.m. (New
York City time) on the Original Closing
Date.


 


SECTION 5.              Payments


 


5.1.            Voluntary
Prepayments.  The Borrower shall have
the right to prepay Loans without premium or penalty, in whole or in part from
time to time on the following terms and conditions:  (a) the Borrower shall give the
Administrative Agent at the Administrative Agent’s Office written notice (or
telephonic notice promptly confirmed in writing) of its intent to make such prepayment,
the amount of such prepayment and (in the case of LIBOR Loans) the specific
Borrowing(s) pursuant to which made, which notice shall be given by the
Borrower no later than 1:00 p.m. (New York City time) (i) in the case
of LIBOR Loans, three Business Days prior to or (ii) in the case of ABR
Loans, one Business Day prior to, the date of such prepayment; (b) each partial
prepayment of (i) any Borrowing of LIBOR Loans shall be in a minimum
amount of $5,000,000 and in multiples of $1,000,000 in excess thereof and (ii) any
ABR Loans shall be in a minimum amount of $1,000,000 and in multiples of
$100,000 in excess thereof, provided that no partial prepayment of LIBOR
Loans made pursuant to a single Borrowing shall 


 


62

















 


reduce the outstanding
LIBOR Loans made pursuant to such Borrowing to an amount less than $5,000,000
and (c) any prepayment of LIBOR Loans pursuant to this Section 5.1
on any day other than the last day of an Interest Period applicable thereto
shall be subject to compliance by the Borrower with the applicable provisions
of Section 2.11.  Each
prepayment in respect of any Loans pursuant to this Section 5.1
shall be applied to the Loans on a pro rata basis
based on the aggregate principal amount of Loans outstanding at such time.  At the Borrower’s election in connection with
any prepayment pursuant to this Section 5.1, such prepayment shall
not be applied to any Loan of a Defaulting Lender.


 


5.2.            Mandatory
Prepayments.


 


(a)           Loan Prepayments.  (i) Prior to Interim Loan Conversion
Date, on each occasion that a Prepayment Event occurs, the Borrower shall,
within three Business Days after its receipt of the Net Cash Proceeds of a
Prepayment Event, prepay, in accordance with clause (c) below,
Loans with a principal amount equal to 100% of the Net Cash Proceeds from such
Prepayment Event; provided that
the Borrower may, to the extent required by the Senior Secured Credit Agreement
or the Senior Unsecured Interim Loan Agreement, apply such Net Cash Proceeds to
prepay, repay or repurchase Indebtedness outstanding under the Senior Secured
Credit Agreement  or the Senior Unsecured
Interim Loan Agreement within three Business Days after receipt thereof, prior
to the application of such Net Cash Proceeds to prepay Loans.


 


(ii)           At
any time on or after the Interim Loan Conversion Date, the provisions of Section 5.2(a)(i) shall
no longer be operative.


 


(b)           [Reserved].


 


(c)           Application to Repayment Amounts.  Subject
to Section 5.2(h), each prepayment of Senior Subordinated Interim
Loans required by Section 5.2(a)(i), the proceeds of which
are derived from the incurrence of Senior Subordinated Notes, shall be applied on a pro rata basis to the aggregate principal
amount of outstanding Senior Subordinated Interim Loans.  Subject to Section 5.2(h), each
prepayment of Senior Subordinated Interim Loans required by Section 5.2(a)(i),
the proceeds of which are derived from any incurrence of Indebtedness
pursuant to Section 9.7(a), shall be applied on a pro rata basis to the aggregate principal amount of the
outstanding Senior Interim Loans and Senior Subordinated Interim Loans.  Subject
to Section 5.2(h), with respect to each such prepayment, the
Borrower will, not later than the date specified in Section 5.2(a) for
making such prepayment, give the Administrative Agent telephonic notice
(promptly confirmed in writing) requesting that the Administrative Agent
provide notice of such prepayment to each Lender.


 


(d)           Application to Loans.  With respect to each prepayment of Loans required
by Section 5.2(a) or required or permitted by Section 9.8(b),
the Borrower may, if applicable, designate the Types of Loans that are to be
prepaid and the specific Borrowing(s) pursuant to which made.  In the absence of a designation by the
Borrower as described in the preceding sentence, the Administrative Agent
shall, subject to the above, make such designation in its reasonable discretion
with a view, but no obligation, to minimize breakage costs owing under Section 2.11.


 


63

















 


(e)           [Reserved].


 


(f)            LIBOR Interest Periods.  In lieu of making any payment pursuant to
this Section 5.2 or pursuant to Section 9.8(b) in
respect of any LIBOR Loan other than on the last day of the Interest Period
therefor so long as no Event of Default shall have occurred and be continuing,
the Borrower at its option may deposit with the Administrative Agent an amount
in Dollars equal to the amount of the LIBOR Loan to be prepaid and such LIBOR
Loan shall be repaid on the last day of the Interest Period therefor in the
required amount.  Such deposit shall be
held by the Administrative Agent in a corporate time deposit account
established on terms reasonably satisfactory to the Administrative Agent,
earning interest at the then-customary rate for accounts of such type.  Such deposit shall constitute cash collateral
for the LIBOR Loans to be so prepaid, provided that the Borrower may at
any time direct that such deposit be applied to make the applicable payment
required pursuant to this Section 5.2.


 


(g)           [Reserved].


 


(h)           Rejection Right.  The Borrower shall notify the Administrative
Agent in writing of any mandatory prepayment of Loans required to be made pursuant
to Section 5.2(a) at least three Business Days prior to the
date of such prepayment.  Each such
notice shall specify the date of such prepayment and provide a reasonably
detailed calculation of the amount of such prepayment.  The Administrative Agent will promptly notify
each Lender holding Loans of the contents of the Borrower’s prepayment notice
and of such Lender’s pro rata share
of the prepayment.  Each Lender may
reject all (but not less than all) of its pro rata share
of any mandatory prepayment (such declined amounts, the “Declined
Proceeds”) of Loans required to be made pursuant to Section 5.2(a) by
providing written notice (each, a “Rejection Notice”)
to the Administrative Agent and the Borrower no later than 5:00 p.m. (New
York time) one Business Day after the date of such Lender’s receipt of notice
from the Administrative Agent regarding such prepayment.  If a Lender fails to deliver a Rejection
Notice to the Administrative Agent within the time frame specified above or
such Rejection Notice fails to specify the principal amount of the Loans to be
rejected, any such failure will be deemed an acceptance of the total amount of
such mandatory prepayment of Loans.  Any
Declined Proceeds remaining thereafter shall be retained by the Borrower.


 


5.3.            Method and Place of
Payment.


 


(a)           Except as otherwise specifically provided
herein, all payments under this Agreement shall be made by the Borrower,
without set-off, counterclaim or deduction of any kind, to the Administrative
Agent for the ratable account of the Lenders entitled thereto, not later than
2:00 p.m. (New York City time), in each case, on the date when due and
shall be made in immediately available funds at the Administrative Agent’s
Office or at such other office as the Administrative Agent shall specify for
such purpose by notice to the Borrower, it being understood that written or
facsimile notice by the Borrower to the Administrative Agent to make a payment
from the funds in the Borrower’s account at the Administrative Agent’s Office
shall constitute the making of such payment to the extent of such funds held in
such account.  All repayments or
prepayments of any Loans (whether of principal, interest or otherwise) hereunder
shall be made in Dollars and all other payments under each Loan Document shall,
unless otherwise specified in such Loan Document, be made in Dollars.  The Administrative Agent


 


64
















 


will thereafter cause to be distributed on the same day (if payment was
actually received by the Administrative Agent prior to 2:00 p.m. (New York
City time) or, otherwise, on the next Business Day) like funds relating to the
payment of principal or interest ratably to the Lenders entitled thereto.


 


(b)           Any payments under this Agreement that are
made later than 2:00 p.m. (New York City time) may be deemed to have been
made on the next succeeding Business Day in the Administrative Agent’s sole
discretion.  Whenever any payment to be
made hereunder shall be stated to be due on a day that is not a Business Day,
in the Administrative Agent’s sole discretion, the due date thereof shall be extended
to the next succeeding Business Day and, with respect to payments of principal,
interest shall be payable during such extension at the applicable rate in
effect immediately prior to such extension.


 


5.4.            Net Payments.


 


(a)           Any and all payments made by or on behalf of
the Borrower or any Guarantor under this Agreement or any other Loan Document
shall be made free and clear of, and without deduction or withholding for or on
account of, any Indemnified Taxes; provided that if the Borrower, any
Guarantor or the Administrative Agent shall be required by applicable Requirements
of Law to deduct or withhold any Indemnified Taxes from such payments, then (i) the
sum payable by the Borrower or Guarantor shall be increased as necessary so
that after making all required deductions and withholdings (including
deductions or withholdings applicable to additional sums payable under this Section 5.4)
the applicable Agent or Lender, as the case may be, receives an amount equal to
the sum it would have received had no such deductions or withholdings been
made, (ii) the Borrower, such Guarantor or the Administrative Agent, as
applicable, shall make such deductions or withholdings and (iii) the
Borrower, such Guarantor or the Administrative Agent, as applicable, shall
timely pay the full amount deducted or withheld to the relevant Governmental
Authority within the time allowed and in accordance with applicable
Requirements of Law.  Whenever any
Indemnified Taxes are payable by the Borrower or any Guarantor, as promptly as
possible thereafter, the Borrower or such Guarantor shall send to the Administrative
Agent for its own account or for the account of a Lender or Agent, as the case
may be, a certified copy of an original official receipt (or other evidence acceptable
to such Lender or Agent, acting reasonably) received by the Borrower or such Guarantor
showing payment thereof.


 


(b)           The Borrower shall timely pay and shall
indemnify and hold harmless each Agent and Lender (whether or not such Other
Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority) with regard to any Other Taxes.


 


(c)           The Borrower shall indemnify and hold
harmless each Agent and Lender within 20 Business Days after written demand
therefor, for the full amount of any Indemnified Taxes imposed on the
Administrative Agent or such Lender, as the case may be, on or with respect to
any payment by or on account of any obligation of the Borrower or any Guarantor
hereunder or under any other Loan Document (including Indemnified Taxes imposed
or asserted on or attributable to amounts payable under this Section 5.4)
and any reasonable expenses arising therefrom or with respect thereto, whether
or not such Indemnified Taxes were correctly or legally imposed or asserted by
the relevant Governmental Authority.  A
certificate 


 


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setting forth reasonable detail as to the amount of such payment or
liability delivered to the Borrower by a Lender or Agent (as applicable) on its
own behalf or on behalf of a Lender shall be conclusive absent manifest error.


 


(d)           Each Non-U.S. Lender shall, to the extent it
is legally entitled to do so:


 


(i)           deliver to the Borrower and the
Administrative Agent prior to the date on which the first payment to such
Non-U.S. Lender is due hereunder  two
copies of either (x) in the case of a Non-U.S. Lender claiming exemption
from U.S. federal withholding tax under Section 871(h) or 881(c) of
the Code with respect to payments of “portfolio interest”, United States
Internal Revenue Service Form W-8BEN (together with a certificate representing
that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of
the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of
the Code) of the Borrower and is not a controlled foreign corporation related
to the Borrower (within the meaning of Section 864(d)(4) of the
Code)), (y) Internal Revenue Service Form W-8BEN or Form W-8ECI,
in each case properly completed and duly executed by such Non-U.S. Lender
claiming complete exemption from, or reduced rate of, U.S. Federal withholding
tax on payments by the Borrower under this Agreement or (z) Internal
Revenue Service Form W-8IMY and any attachments (including the forms described
in subclauses (x) and (y) above, as applicable); and


 


(ii)          deliver to the Borrower and the
Administrative Agent two further copies of any such form or certification (or
any applicable successor form) on or before the date that any such form or
certification expires or becomes obsolete, after the occurrence of any event
requiring a change in the most recent form previously delivered by it to the
Borrower and Administrative Agent and from time to time as reasonably requested
by the Borrower or the Administrative Agent.


 


unless in any
such case any Change in Law has occurred prior to the date on which any such delivery
would otherwise be required that renders any such form inapplicable or would
prevent such Non-U.S. Lender from duly completing and delivering any such form
with respect to it and such Non-U.S. Lender promptly so advises the Borrower and
the Administrative Agent.  Each Person
that shall become a Participant pursuant to Section 13.6 or a
Lender pursuant to Section 13.6 shall, upon the effectiveness of
the related transfer, be required to provide all the forms and statements
required pursuant to this Section 5.4(d), provided that in
the case of a Participant such Participant shall furnish all such required
forms and statements to the Administrative Agent and to the Lender from which
the related participation shall have been purchased.


 


(e)           [Reserved].


 


(f)            Each Lender and Agent that is entitled to
an exemption from or reduction of non-U.S. withholding tax under the laws of
the jurisdiction in which the Borrower is organized, or any treaty to which
such jurisdiction is a party, with respect to payments under this Agreement or
any other Loan Document by the Borrower or Guarantor shall deliver to such
Borrower or Guarantor (with a copy to the applicable Administrative Agent), as
applicable, at the time or times prescribed by applicable law and as reasonably
requested by the Borrower or Guarantor, as applicable, such properly completed
and executed documentation prescribed by 


 


66

















 


applicable law as will permit such payments to be made without such withholding
or at such reduced rate, provided that such Lender or Agent is legally
entitled to complete, execute and deliver such documentation and such
documentation is necessary in order for such exemption or reduction to apply.


 


(g)           If any Lender or Agent, as applicable,
determines, in its sole discretion, that it has received and retained a refund
of an Indemnified Tax or Other Tax for which a payment has been made by the
Borrower pursuant to this Agreement, which refund in the good faith judgment of
such Lender or Agent, as the case may be, is attributable to such payment made
by the Borrower, then the Lender or the Administrative Agent, as the case may
be, shall reimburse the Borrower for such amount (together with any interest
received thereon) as the Lender or Administrative Agent, as the case may be,
determines in its sole discretion, exercised in good faith, to be the
proportion of the refund as will leave it, after such reimbursement, in no
better or worse after-tax financial position (taking into account expenses or
any taxes imposed on the refund) than it would have been in if the payment had
not been required; provided that the Borrower, upon the request of the
Lender or Agent, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental Authority)
to the Lender or Agent in the event the Lender or Agent is required to repay
such refund to such Governmental Authority. 
A Lender or Agent shall claim any refund of Indemnified Taxes or Other
Taxes that it determines in its sole discretion, exercised in good faith, is
available to it, unless it concludes in its sole discretion that it would be
adversely affected by making such a claim. 
No Lender or Agent shall be obliged to disclose any information regarding
its tax affairs or computations or any other information it deems confidential
to any Loan Party in connection with this clause (h) or any other
provision of this Section 5.4.


 


(h)           If the Borrower determines that a reasonable
basis exists for contesting a Tax, each Lender or Agent, as the case may be,
shall use reasonable efforts to cooperate with the Borrower as the Borrower may
reasonably request in challenging such Tax. 
Subject to the provisions of Section 2.12, each Lender and
Agent agree to use reasonable efforts to cooperate with the Borrower as the
Borrower may reasonably request to minimize any amount payable by the Borrower
or any Guarantor pursuant to this Section 5.4.  The Borrower shall indemnify and hold each
Lender and Agent harmless against any out-of-pocket expenses incurred by such
Person in connection with any request made by the Borrower pursuant to this Section 5.4(h).  Nothing in this Section 5.4(h) shall
obligate any Lender or Agent to take any action that such Person, in its sole
judgment, determines may result in a material detriment to such Person.


 


(i)            Each Lender and Agent that is a United
States person under Section 7701(a)(30) of the Code (each, a “U.S. Lender”) shall, to the extent it can legally do so,
deliver to the Borrower and the Administrative Agent two United States Internal
Revenue Service Forms W-9 (or substitute or successor form), properly completed
and duly executed, certifying that such Lender or Agent is exempt from United
States federal backup withholding tax (i) on or prior to the Original
Closing Date (or on or prior to the date it becomes a party to this Agreement),
(ii) on or before the date that such form expires or becomes obsolete, (iii) after
the occurrence of a change in the Agent’s or Lender’s circumstances requiring a
change in the most recent form previously delivered by it to the Borrower and
the Administrative Agent, and (iv) 


 


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from time to time thereafter if reasonably requested by the Borrower or
the Administrative Agent.


 


(j)            The agreements in this Section 5.4
shall survive the termination of this Agreement and the payment of the Loans
and all other amounts payable hereunder.


 


5.5.            Computations of
Interest.  Interest on LIBOR Loans
and ABR Loans shall be calculated on the basis of a 360-day year for the actual
days elapsed and interest on overdue interest shall be calculated on the basis
of a 365- (or 366-, as the case may be) day year for the actual days elapsed.


 


5.6.            Limit on Rate of
Interest.


 


(a)           No Payment Shall Exceed Lawful Rate.  Notwithstanding any other term of this
Agreement, the Borrower shall not be obliged to pay any interest or other
amounts under or in connection with this Agreement or otherwise in respect of
the Obligations in excess of the amount or rate permitted under or consistent
with any applicable law, rule or regulation.


 


(b)           Payment at Highest Lawful Rate.  If the Borrower is not obliged to make a
payment that it would otherwise be required to make, as a result of Section 5.6(a),
the Borrower shall make such payment to the maximum extent permitted by or
consistent with applicable laws, rules and regulations.


 


(c)           Adjustment if Any Payment Exceeds Lawful
Rate.  If any provision of this
Agreement or any of the other Loan Documents would obligate the Borrower to
make any payment of interest or other amount payable to any Lender in an amount
or calculated at a rate that would be prohibited by any applicable law, rule or
regulation, then notwithstanding such provision, such amount or rate shall be
deemed to have been adjusted with retroactive effect to the maximum amount or
rate of interest, as the case may be, as would not be so prohibited by law,
such adjustment to be effected, to the extent necessary, by reducing the amount
or rate of interest required to be paid by the Borrower to the affected Lender
under Section 2.8.


 


Notwithstanding the foregoing, and after
giving effect to all adjustments contemplated thereby, if any Lender shall have
received from the Borrower an amount in excess of the maximum permitted by any
applicable law, rule or regulation, then the Borrower shall be entitled,
by notice in writing to the Administrative Agent to obtain reimbursement from
that Lender in an amount equal to such excess, and pending such reimbursement,
such amount shall be deemed to be an amount payable by that Lender to the
Borrower.


 


SECTION 6.              Conditions
Precedent to Initial Borrowing Under Original Senior Subordinated Loan
Agreement.


 


The initial Borrowing under the Original
Senior Subordinated Loan Agreement was subject to the satisfaction of the
following conditions precedent, except as otherwise agreed between the Borrower
and the Administrative Agent.  The
Borrower and Lenders agree that all such conditions were satisfied or waived at
the time of the Original Closing Date.


 


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6.1.            Loan Documents.  The Administrative Agent received:


 


(a)              this Agreement,
executed and delivered by a duly authorized officer of the Borrower and each
Lender; and


 


(b)              the Guarantee,
executed and delivered by a duly authorized officer of each Guarantor.


 


6.2.            Guarantee.  The Guarantee was in full force and effect.


 


6.3.            Legal Opinions.  The Administrative Agent received the
executed legal opinions of (a) Simpson Thacher & Bartlett LLP,
special New York counsel to the Borrower, substantially in the form of Exhibit E-1,
(b) David Money, General Counsel of the Borrower, substantially in the
form of Exhibit E-2, and (c) local counsel to the Borrower and
the Administrative Agent in the jurisdictions listed on Schedule 6.3 in
form and substance satisfactory to the Administrative Agent.  The Borrower, the other Loan Parties and the
Administrative Agent hereby instruct such counsel to deliver such legal
opinions.


 


6.4.            Notice of Borrowing.  Prior to the making of each Senior
Subordinated Interim Loan, the Administrative Agent received a Notice of
Borrowing (whether in writing or by telephone) meeting the requirements of Section 2.3.


 


6.5.            Equity Investments.  Equity Investments, which, to the extent constituting
Stock other than common Stock, were on terms and conditions and pursuant to
documentation reasonably satisfactory to the Joint Lead Arrangers and
Bookrunners to the extent material to the interests of the Lenders, in an
amount not less than the Minimum Equity Amount shall have been made.


 


6.6.            Closing
Certificates.  The Administrative
Agent received a certificate of the Loan Parties, dated the Original Closing
Date, substantially in the form of Exhibit F, with appropriate
insertions, executed by the President or any Vice President and the Secretary
or any Assistant Secretary of each Loan Party, and attaching the documents
referred to in Section 6.7.


 


6.7.            Authorization of
Proceedings of Each Loan Party.  The
Administrative Agent shall have received a copy of the resolutions, in form and
substance satisfactory to the Administrative Agent, of the board of directors
or other managers of each Loan Party (or a duly authorized committee thereof) authorizing
(a) the execution, delivery and performance of the Loan Documents (and any
agreements relating thereto) to which it is a party and (b) in the case of
the Borrower, the extensions of credit contemplated hereunder.


 


6.8.            Fees.  The Agents received the fees in the amounts
previously agreed in writing by the Agents to be received on the Original
Closing Date and all expenses (including the reasonable fees, disbursements and
other charges of counsel) payable by the Loan Parties for which invoices have
been presented prior to the Original Closing Date shall have been paid.


 


6.9.            Representations and
Warranties.  On the Original Closing
Date, representations and warranties made by the Loan Parties in Section 8.1(a),
Section 8.2, Section 8.5 and 


 


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Section 8.7,
as they relate to the Loan Parties at such time, shall have been true and
correct in all material respects.


 


6.10.          Solvency Certificate.  On the Original Closing Date, the
Administrative Agent received a certificate from an Authorized Officer of the
Borrower to the effect that after giving effect to the consummation of the
Transactions, the Borrower on a consolidated basis with its Subsidiaries is
Solvent.


 


6.11.          Merger.  Concurrently with the initial Credit Event
hereunder, the Merger was consummated in accordance with the terms of the
Acquisition Agreement (or the Lead Arrangers shall be reasonably satisfied with
the arrangements in place for the consummation of the Merger reasonably
promptly after the initial Credit Event hereunder and shall have received confirmation
from representatives of the Borrower that such actions shall be taken promptly
after the initial Credit Event hereunder), without giving effect to any amendments
or waivers thereto that are materially adverse to the Lenders (including,
without limitation, the definition of, and representations, warranties and
conditions relating to the absence of any, “Material Adverse Change” or
Material Adverse Effect on the Company” therein) without the reasonable consent
of the Joint Lead Arrangers and Bookrunners.


 


6.12.          Patriot Act.  On the Original Closing Date, the Joint Lead
Arrangers and Bookrunners received such documentation and information as was
reasonably requested in writing at least 10 days prior to the Original Closing
Date by the Administrative Agent about the Borrower and the Guarantors in
respect of applicable “know your customer” and anti-money laundering rules and
regulations, including, without limitation, the Patriot Act.


 


The acceptance of the benefits of the
Borrowing on the Original Closing Date shall have constituted a representation
and warranty on such date by each Loan Party to each of the Lenders that all
the applicable conditions specified in Section 6 above have been
satisfied as of that time.


 


SECTION 7.              Conditions
Precedent to Entering This Agreement.


 


The
effectiveness of this Agreement shall be subject to the execution and delivery
of this Agreement by a duly authorized officer of the Borrower and each Lender
on the Closing Date.


 


SECTION 8.              Representations,
Warranties and Agreements


 


In order to induce the Lenders to enter into
this Agreement and to make the Loans as provided for herein, the Borrower made
(on, and as of, the Original Closing Date) the following representations and
warranties to, and agreements with, the Lenders, all of which shall survive the
execution and delivery of the Original Senior Subordinated Loan Agreement and
the making of the Loans (it being understood that the following representations
and warranties shall be deemed made with respect to any Foreign Subsidiary only
to the extent relevant under applicable law):


 


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8.1.            Corporate Status.  The Borrower and each Material Subsidiary (a) is
a duly organized and validly existing corporation or other entity in good
standing under the laws of the jurisdiction of its organization and has the
corporate or other organizational power and authority to own its property and
assets and to transact the business in which it is engaged and (b) has
duly qualified and is authorized to do business and is in good standing (if
applicable) in all jurisdictions where it is required to be so qualified,
except where the failure to be so qualified could not reasonably be expected to
result in a Material Adverse Effect.


 


8.2.            Corporate Power and
Authority.  Each Loan Party has the
corporate or other organizational power and authority to execute, deliver and
carry out the terms and provisions of the Loan Documents to which it is a party
and has taken all necessary corporate or other organizational action to
authorize the execution, delivery and performance of the Loan Documents to
which it is a party.  Each Loan Party has
duly executed and delivered each Loan Document to which it is a party and each
such Loan Document constitutes the legal, valid and binding obligation of such
Loan Party enforceable in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’
rights generally and subject to general principles of equity.


 


8.3.            No Violation.  Neither the execution, delivery or
performance by any Loan Party of the Loan Documents to which it is a party nor
compliance with the terms and provisions thereof nor the consummation of the
Merger and the other transactions contemplated hereby or thereby will (a) contravene
any applicable provision of any material law, statute, rule, regulation, order,
writ, injunction or decree of any court or governmental instrumentality, (b) except
as set forth on Schedule 8.3, result in any breach of any of the terms,
covenants, conditions or provisions of, or constitute a default under, or
result in the creation or imposition of (or the obligation to create or impose)
any Lien upon any of the property or assets of such Loan Party or any of the
Restricted Subsidiaries (other than Liens created under the Senior Secured
Credit Agreement and the documents related thereto) pursuant to, the terms of
any material indenture, loan agreement, lease agreement, mortgage, deed of
trust, agreement or other material instrument to which such Loan Party or any
of the Restricted Subsidiaries is a party or by which it or any of its property
or assets is bound (any such term, covenant, condition or provision, a “Contractual Requirement”) other than any such breach,
default or Lien that could not reasonably be expected to result in a Material
Adverse Effect or (c) violate any provision of the certificate of incorporation,
by-laws or other organizational documents of such Loan Party or any of the Restricted
Subsidiaries.


 


8.4.            Litigation.  Except as set forth on Schedule 8.4,
there are no actions, suits or proceedings (including Environmental Claims)
pending or, to the knowledge of the Borrower, threatened with respect to the
Borrower or any of its Subsidiaries that could reasonably be expected to result
in a Material Adverse Effect.


 


8.5.            Margin Regulations.  Neither the making of any Loan hereunder nor
the use of the proceeds thereof will violate the provisions of Regulation T, U
or X of the Board.


 


8.6.            Governmental
Approvals.  The execution, delivery
and performance of the Acquisition Agreement or any Loan Document do not
require any consent or approval of, registration or filing with, or other action
by, any Governmental Authority, except for (i) such as 


 


71

















 


have been
obtained or made and are in full force and effect and (ii) such licenses,
approvals, authorizations or consents the failure of which to obtain could not
reasonably be expected to have a Material Adverse Effect.


 


8.7.            Investment Company
Act.  The Borrower is not an “investment
company” within the meaning of the Investment Company Act of 1940, as amended.


 


8.8.            True and Complete
Disclosure.


 


(a)           None of the written factual information and
written data (taken as a whole) heretofore or contemporaneously furnished by or
on behalf of the Borrower, any of the Subsidiaries or any of their respective
authorized representatives to the Administrative Agent, any Joint Lead Arranger
and Bookrunner and/or any Lender on or before the Original Closing Date
(including all such information and data contained in the Loan Documents) for
purposes of or in connection with this Agreement or any transaction contemplated
herein contained any untrue statement of any material fact or omitted to state
any material fact necessary to make such information and data (taken as a
whole) not misleading at such time in light of the circumstances under which
such information or data was furnished, it being understood and agreed that for
purposes of this Section 8.8(a), such factual information and data
shall not include pro forma financial information, projections or estimates
(including financial estimates, forecasts and other forward-looking
information) and information of a general economic or general industry nature.


 


(b)           The projections (including financial
estimates, forecasts and other forward-looking information) contained in the
information and data referred to in paragraph (a) above were based on good
faith estimates and assumptions believed by such Persons to be reasonable at
the time made, it being recognized by the Lenders that such projections as to
future events are not to be viewed as facts and that actual results during the
period or periods covered by any such projections may differ from the projected
results.


 


8.9.            Financial
Condition; Financial Statements.  The
Historical Financial Statements present fairly in all material respects the
consolidated financial position of the Borrower at the respective dates of said
information, statements and results of operations for the periods covered
thereby.  The unaudited pro forma
consolidated balance sheet of the Borrower and its Subsidiaries as at June 30,
2007 (including the notes thereto) (the “Pro Forma Balance Sheet”)
and the unaudited pro forma consolidated statement of operations of the Borrower
and its Subsidiaries for the 12-month period ending on such date (together with
the Pro Forma Balance Sheet, the “Pro Forma Financial
Statements”), copies of which have heretofore been furnished to the
Administrative Agent, have been prepared based on (x) the Historical Financial
Statements and (y) the unaudited historical consolidated financial
information described in clause (a) of this Section 8.9
and have been prepared in good faith, based on assumptions believed by the Borrower
to be reasonable as of the date of delivery thereof, and present fairly in all
material respects on a pro forma basis
the estimated financial position of the Borrower and its Subsidiaries as at June 30,
2007 and their estimated results of operations for the period covered
thereby.  The financial statements
referred to in this Section 8.9 have been prepared in accordance
with GAAP consistently applied except to the extent provided in the notes to
said financial 


 


72

















 


statements.  Immediately after the Original Closing Date,
there had been no Material Adverse Effect.


 


8.10.          Tax Matters.  Except as could not reasonably be expected to
have a Material Adverse Effect, (a) each of the Borrower and the
Subsidiaries has filed all federal income tax returns and all other tax
returns, domestic and foreign, required to be filed by it and has timely paid
all taxes payable by it (whether or not shown on a tax return) that have become
due, (b) the Borrower and each of the Subsidiaries have paid, or have
provided adequate reserves (in the good faith judgment of management of the
Borrower or such Subsidiary) in accordance with GAAP for the payment of, all
federal, state, provincial and foreign taxes applicable for the current fiscal
year to the Original Closing Date and (c) the Borrower and each of its
Subsidiaries has withheld amounts from their respective employees for all
periods in compliance with the tax, social, security and unemployment
withholding provisions of applicable law and timely paid such withholdings to
the respective Governmental Authorities.


 


8.11.          Compliance with ERISA.


 


(a)           Each Plan is in compliance with ERISA, the
Code and any applicable Requirement of Law; no Reportable Event has occurred
(or is reasonably likely to occur) with respect to any Plan; no Plan is
insolvent or in reorganization (or is reasonably likely to be insolvent or in
reorganization), and no written notice of any such insolvency or reorganization
has been given to the Borrower or any ERISA Affiliate; no Plan (other than a
Multiemployer Plan) has an accumulated or waived funding deficiency (or is
reasonably likely to have such a deficiency); on and after the effectiveness of
the Pension Act, each Plan that is subject to Title IV of ERISA has satisfied
the minimum funding standards (within the meaning of Section 412 of the
Code or Section 302 of ERISA) applicable to such Plan, and there has been
no determination that any such Plan is, or is expected to be, in “at risk”
status (within the meaning of Section 4010(d)(2) of ERISA); none of
the Borrower or any ERISA Affiliate has incurred (or is reasonably likely to
incur) any liability to or on account of a Plan pursuant to Section 409,
502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971
or 4975 of the Code or has been notified in writing that it will incur any
liability under any of the foregoing Sections with respect to any Plan; no
proceedings have been instituted (or are reasonably likely to be instituted) to
terminate or to reorganize any Plan or to appoint a trustee to administer any
Plan, and no written notice of any such proceedings has been given to the Borrower
or any ERISA Affiliate; and no lien imposed under the Code or ERISA on the
assets of the Borrower or any ERISA Affiliate exists (or is reasonably likely
to exist) nor has the Borrower or any ERISA Affiliate been notified in writing
that such a lien will be imposed on the assets of the Borrower or any ERISA
Affiliate on account of any Plan, except to the extent that a breach of any of
the representations, warranties or agreements in this Section 8.11(a) would
not result, individually or in the aggregate, in an amount of liability that
would be reasonably likely to have a Material Adverse Effect.  No Plan (other than a Multiemployer Plan) has
an Unfunded Current Liability that would, individually or when taken together
with any other liabilities referenced in this Section 8.11(a), be
reasonably likely to have a Material Adverse Effect.  With respect to Plans that are Multiemployer
Plans (as defined in Section 3(37) of ERISA), the representations and warranties
in this Section 8.11(a), other than any made with respect to (i) liability
under Section 


 


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4201 or 4204 of ERISA or (ii) liability for termination or
reorganization of such Plans under ERISA, are made to the best knowledge of the
Borrower.


 


(b)           All Foreign Plans are in compliance with,
and have been established, administered and operated in accordance with, the
terms of such Foreign Plans and applicable law, except for any failure to so
comply, establish, administer or operate the Foreign Plans as would not
reasonably be expected to have a Material Adverse Effect.  All contributions or other payments which are
due with respect to each Foreign Plan have been made in full and there are no
funding deficiencies thereunder, except to the extent any such events would
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.


 


8.12.          Subsidiaries.  Schedule 8.12 lists each Subsidiary of
the Borrower (and the direct and indirect ownership interest of the Borrower
therein), in each case existing on the Original Closing Date.


 


8.13.          Intellectual Property.  The Borrower and each of the Restricted
Subsidiaries have obtained all intellectual property, free from burdensome
restrictions, that is necessary for the operation of their respective businesses
as currently conducted and as proposed to be conducted, except where the
failure to obtain any such rights could not reasonably be expected to have a
Material Adverse Effect.


 


8.14.          Environmental Laws.


 


(a)           Except as could not reasonably be expected
to have a Material Adverse Effect:  (i) the
Borrower and each of the Subsidiaries and all Real Estate are in compliance
with all Environmental Laws; (ii) neither the Borrower nor any Subsidiary
is subject to any Environmental Claim or any other liability under any
Environmental Law; (iii) neither the Borrower nor any Subsidiary is
conducting any investigation, removal, remedial or other corrective action
pursuant to any Environmental Law at any location; and (iv) no underground
storage tank or related piping, or any impoundment or other disposal area
containing Hazardous Materials is located at, on or under any Real Estate
currently owned or leased by the Borrower or any of its Subsidiaries.


 


(b)           Neither the Borrower nor any of the Subsidiaries
has treated, stored, transported, released or disposed or arranged for disposal
or transport for disposal of Hazardous Materials at, on, under or from any
currently or formerly owned or leased Real Estate or facility in a manner that
could reasonably be expected to have a Material Adverse Effect.


 


8.15.          Properties.  The Borrower and each of the Subsidiaries
have good and marketable title to or valid leasehold interests in all
properties that are necessary for the operation of their respective businesses
as currently conducted and as proposed to be conducted, free and clear of all
Liens (other than any Liens permitted by this Agreement) and except where the
failure to have such good title could not reasonably be expected to have a
Material Adverse Effect.


 


8.16.          Solvency.  On the Original Closing Date (after giving
effect to the Transactions), immediately following the making of each Loan and
after giving effect to the application 


 


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of the
proceeds of such Loans, the Borrower on a consolidated basis with its
Subsidiaries will be Solvent.


 


SECTION 9.              Covenants


 


9.1.            Reports and Other
Information.


 


(a)           Notwithstanding that the Borrower may not be
subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act or otherwise report on an annual and quarterly basis on forms
provided for such annual and quarterly reporting pursuant to rules and
regulations promulgated by the SEC, the Borrower shall file with the SEC (and
make available to the Administrative Agent and the Lenders (without exhibits),
without cost to any Lender, within 15 days after the Borrower files or
would be required to file them with the SEC) from and after the Original
Closing Date,


 


 (i)     within 90 days (or any other time period then
in effect under the rules and regulations of the Exchange Act with respect
to the filing of a Form 10-K by a non-accelerated filer) after the end of
each fiscal year, annual reports on Form 10-K, or any successor or
comparable form, containing the information required to be contained therein,
or required in such successor or comparable form;


 


(ii)     within 45 days after the end of each of the first
three fiscal quarters of each fiscal year, reports on Form 10-Q containing
all quarterly information that would be required to be contained in Form 10-Q,
or any successor or comparable form;


 


(iii)    promptly from time to time after the occurrence of
an event required to be therein reported, such other reports on Form 8-K,
or any successor or comparable form; and


 


(iv)    any other information, documents and other reports
which the Borrower would be required to file with the SEC if it were subject to
Section 13 or 15(d) of the Exchange Act;


 


in each case
in a manner that complies in all material respects with the requirements
specified in such form; provided that the Borrower shall not be so
obligated to file such reports with the SEC if the SEC does not permit such
filing, in which event the Borrower shall make available such information to
the Administrative Agent and the Lenders, which obligation may be satisfied by
posting such reports on the website of the Borrower and its Subsidiaries and
the Borrower shall promptly notify the Administrative Agent when such reports
are posted on the website of the Borrower, in each case within 15 days after
the time the Borrower would be required to file such information with the SEC
if it were subject to Section 13 or 15(d) of the Exchange Act.


 


(b)           Notwithstanding the foregoing, the
requirements of Section 9.1(a), shall be deemed satisfied (1) by
the filing with the SEC of a registration statement, and any amendments
thereto, with such financial information that satisfies Regulation S-X, subject
to exceptions consistent with the presentation of financial information in an
offering memorandum relating to securities sold in reliance on Rule 144A
of the Securities Act, to the extent filed within the times 


 


75

















 


specified in Section 9.1(a),
or (2) by posting reports that would be required to be filed substantially
in the form required by the SEC on the Borrower’s website (or that of any of
its parent companies) or providing such reports to the Administrative Agent
within 15 days after the time the Borrower would be required to file such
information with the SEC if it were subject to Section 13 or 15(d) of
the Exchange Act or the financial information that would be required to be
included in such reports.  Additionally,
in the event that any direct or indirect parent company of the Borrower becomes
a Guarantor of the Loans, the Borrower may satisfy its obligations under this Section 9.1
with respect to financial information relating to the Borrower by furnishing financial
information relating to such parent; provided that the same is accompanied
by consolidating information that explains in reasonable detail the differences
between the information relating to such parent, on the one hand, and the
information relating to the Borrower and its Restricted Subsidiaries on a
standalone basis, on the other hand.


 


9.2.            Compliance
Certificate.


 


(a)           The Borrower shall deliver to the
Administrative Agent, within 90 days after the end of each fiscal year ending
after the Original Closing Date, a certificate from the principal executive
officer, principal financial officer or principal accounting officer stating
that a review of the activities of the Borrower and its Restricted Subsidiaries
during the preceding fiscal year has been made under the supervision of the
signing Officer with a view to determining whether the Borrower has kept,
observed, performed and fulfilled its obligations under this Agreement, and
further stating, as to such Officer signing such certificate, that to the best
of his or her knowledge the Borrower has kept, observed, performed and
fulfilled each and every condition and covenant contained in this Agreement and
is not in default in the performance or observance of any of the terms,
provisions, covenants and conditions of this Agreement (or, if a Default shall
have occurred, describing all such Defaults of which he or she may have knowledge
and what action the Borrower is taking or proposes to take with respect
thereto).


 


(b)           When
any Default has occurred and is continuing under this Agreement, or if the
Administrative Agent or the holder of any other evidence of Indebtedness of the
Borrower or any Subsidiary gives any notice or takes any other action with
respect to a claimed Default, the Borrower shall promptly (which shall be no
more than five (5) Business Days) deliver to the Administrative Agent by
registered or certified mail or by facsimile transmission an Officer’s
Certificate specifying such event and what action the Borrower proposes to take
with respect thereto.


 


9.3.            Taxes.  The
Borrower shall pay, and shall cause each of its Restricted Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate negotiations or
proceedings or where the failure to effect such payment is not adverse in any
material respect to the Lenders.


 


9.4.            Stay, Extension and
Usury Laws.  The Borrower and each of the Guarantors covenant (to the extent that
they may lawfully do so) that they shall not at any time insist upon, plead, or
in any manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in force,
that may affect the covenants or the performance of this Agreement; and the
Borrower and each of the Guarantors (to the extent that they may lawfully do
so) hereby expressly waive all benefit or advantage


 


76
















 


of any such law, and
covenant that they shall not, by resort to any such law, hinder, delay or impede
the execution of any power herein granted to the Administrative Agent, but
shall suffer and permit the execution of every such power as though no such law
has been enacted.


 


9.5.                                   Limitation on
Restricted Payments.


 


(a)                                  The Borrower
shall not, and shall not permit any of its Restricted Subsidiaries to, directly
or indirectly:


 


(I)                                    declare or pay
any dividend or make any payment or distribution on account of the Borrower’s,
or any of its Restricted Subsidiaries’ Equity Interests, including any dividend
or distribution payable in connection with any merger or consolidation, other
than:


 


(A)                              dividends or distributions
by the Borrower payable solely in Equity Interests (other than Disqualified
Stock) of the Borrower; or


 


(B)                                dividends or distributions
by a Restricted Subsidiary so long as, in the case of any dividend or
distribution payable on or in respect of any class or series of securities
issued by a Restricted Subsidiary other than a Wholly Owned Subsidiary, the
Borrower or a Restricted Subsidiary receives at least its pro rata
share of such dividend or distribution in accordance with its Equity Interests
in such class or series of securities;


 


(II)                                purchase,
redeem, defease or otherwise acquire or retire for value any Equity Interests
of the Borrower or any direct or indirect parent of the Borrower, including in
connection with any merger or consolidation;


 


(III)                            make any
principal payment on, or redeem, repurchase, defease or otherwise acquire or
retire for value in each case, prior to any scheduled repayment, sinking fund
payment or maturity, any Subordinated Indebtedness, other than:


 


(A)                              Indebtedness permitted under
clauses (7) and (8) of Section 9.7(b) hereof;
or


 


(B)                                the purchase, repurchase or
other acquisition of Subordinated Indebtedness purchased in anticipation of
satisfying a sinking fund obligation, principal installment or final maturity,
in each case due within one year of the date of purchase, repurchase or
acquisition; or


 


(IV)                            make any
Restricted Investment


 


(all such payments and other actions set
forth in clauses (I) through (IV) above (other than any
exception thereto) being collectively referred to as “Restricted
Payments”), unless, at the time of such Restricted Payment:


 


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(1)                                  no Default shall have
occurred and be continuing or would occur as a consequence thereof;


 


(2)                                  immediately after giving
effect to such transaction on a pro forma
basis, the Borrower could incur $1.00 of additional Indebtedness under Section 9.7(a) hereof;
and


 


(3)                                  such Restricted Payment,
together with the aggregate amount of all other Restricted Payments made by the
Borrower and its Restricted Subsidiaries after the Original Closing Date
(including Restricted Payments permitted by clauses (1), (2) (with
respect to the payment of dividends on Refunding Capital Stock pursuant to clause
(b) thereof only), (6)(c), (9) and (14) of Section 9.5(b) hereof
but excluding all other Restricted Payments permitted by Section 9.5(b) hereof,
is less than the sum of (without duplication):


 


(a)                                  50% of the Consolidated Net
Income of the Borrower for the period (taken as one accounting period)
beginning July 1, 2007, to the end of the Borrower’s most recently ended
fiscal quarter for which internal financial statements are available at the
time of such Restricted Payment, or, in the case such Consolidated Net Income
for such period is a deficit, minus 100% of such deficit; plus


 


(b)                                 100% of the aggregate net
cash proceeds and the fair market value, as determined in good faith by the
Borrower, of marketable securities or other property received by the Borrower
since immediately after the Closing Date (other than net cash proceeds to the extent
such net cash proceeds have been used to incur Indebtedness, Disqualified Stock
or Preferred Stock pursuant to clause (12)(a) of Section 9.7(b) hereof)
from the issue or sale of:


 


(i)                                     (A) Equity Interests of
the Borrower, including Treasury Capital Stock (as defined below), but
excluding cash proceeds and the fair market value, as determined in good faith
by the Borrower, of marketable securities or other property received from the
sale of:


 


(x)                                   Equity Interests to any
former, current or future employees, directors or consultants of the Borrower,
any direct or indirect parent company of the Borrower and the Borrower’s Subsidiaries
after the Original Closing Date to the extent such amounts have been applied to
Restricted Payments made in accordance with clause (4) of Section 9.5(b);
and


 


(y)                                 Designated Preferred Stock;
and


 


(B)                                to the extent such net cash
proceeds are actually contributed to the Borrower, Equity Interests of the
Borrower’s direct or indirect parent companies (excluding contributions of the
proceeds from the sale of Designated Preferred Stock of such companies or
contributions to the extent 


 


78

















 


such amounts have been applied to Restricted
Payments made in accordance with clause (4) of Section 9.5(b) hereof);
or


 


(ii)                                  debt securities of the
Borrower that have been converted into or exchanged for such Equity Interests
of the Borrower;


 


provided, however, that this clause (b) shall
not include the proceeds from (V) Refunding Capital Stock, (W) Equity
Interests or convertible debt securities of the Borrower sold to a Restricted
Subsidiary, as the case may be, (X) Disqualified Stock or debt securities
that have been converted into Disqualified Stock or (Y) Excluded
Contributions; plus


 


(c)                                  100% of the aggregate amount
of cash and the fair market value, as determined in good faith by the Borrower,
of marketable securities or other property contributed to the capital of the
Borrower following the Original Closing Date (other than net cash proceeds to
the extent such net cash proceeds (i) have been used to incur
Indebtedness, Disqualified Stock or Preferred Stock pursuant to clause (12)(a) of
Section 9.7(b) hereof, (ii) are contributed by a
Restricted Subsidiary, or (iii) constitute Excluded Contributions); plus


 


(d)                                 100% of the aggregate amount
received in cash and the fair market value, as determined in good faith by the
Borrower, of marketable securities or other property received by means of:


 


(i)                                     the sale or other
disposition (other than to the Borrower or a Restricted Subsidiary) of
Restricted Investments made by the Borrower or its Restricted Subsidiaries and
repurchases and redemptions of such Restricted Investments from the Borrower or
its Restricted Subsidiaries and repayments of loans or advances, and releases
of guarantees, which constitute Restricted Investments by the Borrower or its
Restricted Subsidiaries, in each case after the Original Closing Date; or


 


(ii)                                  the sale (other than to the
Borrower or a Restricted Subsidiary) of the stock of an Unrestricted Subsidiary
or a distribution from an Unrestricted Subsidiary (other than in each case to
the extent the Investment in such Unrestricted Subsidiary was made by the
Borrower or a Restricted Subsidiary pursuant to clause (7) of Section 9.5(b) hereof
or to the extent such Investment constituted a Permitted Investment) or a
dividend from an Unrestricted Subsidiary after the Original Closing Date; plus


 


(e)                                  in the case of the
redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary after
the Original Closing Date, the fair market value of the Investment in such
Unrestricted Subsidiary, as determined by the Borrower in good faith (or if
such fair market value exceeds $250.0 million, in writing by an
Independent Financial Advisor), at the time of the redesignation of such Unrestricted
Subsidiary as a Restricted Subsidiary other than to the extent the Investment
in such Unrestricted Subsidiary was made by the Borrower or a Restricted 


 


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Subsidiary pursuant to clause
(7) of Section 9.5(b) or to the extent such Investment
constituted a Permitted Investment.


 


(b)                                 The foregoing
provisions of Section 9.5(a) shall not prohibit:


 


(1)                                  the payment of any dividend
or distribution within 60 days after the date of declaration thereof, if at the
date of declaration such payment would have complied with the provisions of
this Agreement;


 


(2)                                  (a) the redemption,
repurchase, defeasance, retirement or other acquisition of any Equity Interests
(“Treasury Capital Stock”) or
Subordinated Indebtedness of the Borrower or any Equity Interests of any direct
or indirect parent company of the Borrower, in exchange for, or out of the
proceeds of the substantially concurrent sale (other than to a Restricted
Subsidiary) of, Equity Interests of the Borrower or any direct or indirect
parent company of the Borrower to the extent contributed to the Borrower (in
each case, other than any Disqualified Stock) (“Refunding
Capital Stock”) and (b) if immediately prior to the retirement
of Treasury Capital Stock, the declaration and payment of dividends thereon was
permitted under clause (6) of this Section 9.5(b), the
declaration and payment of dividends on the Refunding Capital Stock (other than
Refunding Capital Stock the proceeds of which were used to redeem, repurchase,
retire or otherwise acquire any Equity Interests of any direct or indirect
parent company of the Borrower) in an aggregate amount per year no greater than
the aggregate amount of dividends per annum that were declarable and payable on
such Treasury Capital Stock immediately prior to such retirement;


 


(3)                                  the defeasance, redemption,
repurchase or other acquisition or retirement of Subordinated Indebtedness of
the Borrower or any Restricted Subsidiary made in exchange for, or out of the
proceeds of the substantially concurrent sale of, new Indebtedness of the
Borrower or any Restricted Subsidiary, as the case may be, which is incurred in
compliance with Section 9.7 hereof so long as:


 


(a)                                  the principal amount (or accreted
value) of such new Indebtedness does not exceed the principal amount of (or
accreted value, if applicable), plus any accrued and unpaid interest on, the
Subordinated Indebtedness being so redeemed, repurchased, defeased, acquired or
retired for value, plus the amount of any reasonable premium (including
reasonable tender premiums), defeasance costs and any reasonable fees and
expenses incurred in connection with the issuance of such new Indebtedness;


 


(b)                                 such new Indebtedness is
subordinated to the Loans or the applicable Guarantee at least to the same
extent as such Subordinated Indebtedness so purchased, exchanged, redeemed,
repurchased, defeased, acquired or retired for value;


 


(c)                                  such new Indebtedness has a
final scheduled maturity date equal to or later than the final scheduled
maturity date of the Subordinated Indebtedness being so redeemed, repurchased,
defeased, acquired or retired; and


 


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(d)                                 such new Indebtedness has a
Weighted Average Life to Maturity equal to or greater than the remaining
Weighted Average Life to Maturity of the Subordinated Indebtedness being so redeemed,
repurchased, defeased, acquired or retired;


 


(4)                                  a Restricted Payment to pay
for the repurchase, retirement or other acquisition or retirement for value of
Equity Interests (other than Disqualified Stock) of the Borrower or any of its
direct or indirect parent companies held by any future, present or former
employee, director or consultant of the Borrower, any of its Subsidiaries or
any of its direct or indirect parent companies pursuant to any management
equity plan or stock option plan or any other management or employee benefit
plan or agreement, including any Equity Interests rolled over by management of
the Borrower or any of its direct or indirect parent companies in connection
with the Transactions; provided, however, that the aggregate
Restricted Payments made under this clause (4) do not exceed in any
calendar year $75.0 million (which shall increase to $150.0 million subsequent
to the consummation of an underwritten public Equity Offering by the Borrower
or any direct or indirect parent entity of the Borrower) (with unused amounts
in any calendar year being carried over to succeeding calendar years subject to
a maximum (without giving effect to the following proviso) of
$150.0 million in any calendar year (which shall increase to $300.0
million subsequent to the consummation of an underwritten public Equity Offering
by the Borrower or any direct or indirect parent corporation of the Borrower));
provided  further that such amount in any calendar year may be
increased by an amount not to exceed:


 


(a)                                  the cash proceeds from the
sale of Equity Interests (other than Disqualified Stock) of the Borrower and,
to the extent contributed to the Borrower, Equity Interests of any of the
Borrower’s direct or indirect parent companies, in each case to members of
management, directors or consultants of the Borrower, any of its Subsidiaries
or any of its direct or indirect parent companies that occurs after the
Original Closing Date, to the extent the cash proceeds from the sale of such
Equity Interests have not otherwise been applied to the payment of Restricted
Payments by virtue of clause (3) of Section 9.5(a); plus


 


(b)                                 the cash proceeds of key man
life insurance policies received by the Borrower or its Restricted Subsidiaries
after the Original Closing Date; less


 


(c)                                  the amount of any Restricted
Payments previously made with the cash proceeds described in clauses (a) and
(b) of this clause (4);


 


and
provided, further, that cancellation of Indebtedness owing to the
Borrower or any Restricted Subsidiary from members of management of the
Borrower, any of the Borrower’s direct or indirect parent companies or any of
the Borrower’s Restricted Subsidiaries in connection with a repurchase of
Equity Interests of the Borrower or any of its direct or indirect parent
companies will not be deemed to constitute a Restricted Payment for purposes of
this Section 9.5 or any other provision of this Agreement;


 


81

















 


(5)                                  the declaration and payment
of dividends to holders of any class or series of Disqualified Stock of the
Borrower or any of its Restricted Subsidiaries or any class or series of
Preferred Stock of any Restricted Subsidiary or any class or series of
Preferred Stock of a Restricted Subsidiary issued in accordance with Section 9.7
hereof to the extent such dividends are included in the definition of “Fixed
Charges”;


 


(6)                                  (a) the declaration and
payment of dividends to holders of any class or series of Designated Preferred
Stock (other than Disqualified Stock) issued by the Borrower after the Original
Closing Date;


 


(b)                                 the declaration and payment
of dividends to a direct or indirect parent company of the Borrower, the
proceeds of which will be used to fund the payment of dividends to holders of
any class or series of Designated Preferred Stock (other than Disqualified
Stock) of such parent corporation issued after the Original Closing Date; provided
that the amount of dividends paid pursuant to this clause (b) shall
not exceed the aggregate amount of cash actually contributed to the Borrower
from the sale of such Designated Preferred Stock; or


 


(c)                                  the declaration and payment
of dividends on Refunding Capital Stock that is Preferred Stock in excess of
the dividends declarable and payable thereon pursuant to clause (2) of
this Section 9.5(b);


 


provided, however, in the case of each of (a) and
(c) of this clause (6), that for the most recently ended four
full fiscal quarters for which internal financial statements are available
immediately preceding the date of issuance of such Designated Preferred Stock
or the declaration of such dividends on Refunding Capital Stock that is
Preferred Stock, after giving effect to such issuance or declaration on a pro forma basis, the Borrower and its Restricted
Subsidiaries on a consolidated basis would have had a Fixed Charge Coverage
Ratio of at least 2.00 to 1.00;


 


(7)                                  Investments in Unrestricted
Subsidiaries having an aggregate fair market value, taken together with all
other Investments made pursuant to this clause (7) that are at the
time outstanding, without giving effect to the sale of an Unrestricted
Subsidiary to the extent the proceeds of such sale do not consist of cash or
marketable securities, not to exceed (x) prior to the Interim Loan
Conversion Date, $750.0 million and (y) thereafter, 1% of the Borrower’s
Total Assets, in each case at the time of such Investment (with the fair market
value of each Investment being measured at the time made and without giving
effect to subsequent changes in value);


 


(8)                                  repurchases of Equity
Interests deemed to occur upon exercise of stock options or warrants if such
Equity Interests represent a portion of the exercise price of such options or
warrants;


 


(9)                                  the declaration and payment
of dividends on the Borrower’s common stock (or the payment of dividends to any
direct or indirect parent entity to fund a payment of dividends on such entity’s
common stock), following consummation of the first public offering of the
Borrower’s common stock or the common stock of any of its direct 


 


82

















 


or indirect parent companies
after the Closing Date, of up to 6% per annum of the net cash proceeds
received by or contributed to the Borrower in or from any such public offering,
other than public offerings with respect to the Borrower’s common stock registered
on Form S-4 or Form S-8 and other than any public sale constituting
an Excluded Contribution;


 


(10)                            Restricted Payments that are
made with Excluded Contributions;


 


(11)                            other Restricted Payments in
an aggregate amount taken together with all other Restricted Payments made
pursuant to this clause (11) not to exceed (x) prior to the Interim
Loan Conversion Date, $400.0 million and (y) thereafter, 2% of the
Borrower’s Total Assets, in each case at the time made;


 


(12)                            distributions or payments of
Receivables Fees;


 


(13)                            any Restricted Payment made
in connection with the Transaction and the fees and expenses related thereto or
used to fund amounts owed to Affiliates (including dividends to any direct or
indirect parent of the Borrower to permit payment by such parent of such
amount), in each case to the extent permitted by Section 9.9
hereof;


 


(14)                            the repurchase, redemption
or other acquisition or retirement for value of any Subordinated Indebtedness
in accordance with provisions similar to those described under Sections 9.8
and 9.12 hereof; provided that all Loans subject to prepayment
under Section 9.8(c) or 9.12(a) hereof that have
been accepted for repayment by the applicable Lender, have been repaid;


 


(15)                            the declaration and payment
of dividends or distributions by the Borrower to, or the making of loans to,
any direct or indirect parent in amounts required for any direct or indirect
parent companies to pay, in each case without duplication,


 


(a)                                  franchise and excise taxes
and other fees, taxes and expenses required to maintain their corporate
existence;


 


(b)                                 foreign, federal, state and
local income taxes, to the extent such income taxes are attributable to the
income of the Borrower and its Restricted Subsidiaries and, to the extent of
the amount actually received from its Unrestricted Subsidiaries, in amounts
required to pay such taxes to the extent attributable to the income of such
Unrestricted Subsidiaries; provided that in each case the amount of such
payments in any fiscal year does not exceed the amount that the Borrower and
its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent described
above) would be required to pay in respect of foreign, federal, state and local
taxes for such fiscal year were the Borrower, its Restricted Subsidiaries and
its Unrestricted Subsidiaries (to the extent described above) to pay such taxes
separately from any such parent entity;


 


(c)                                  customary salary, bonus and
other benefits payable to officers and employees of any direct or indirect
parent company of the Borrower to the extent 


 


83

















 


such salaries, bonuses and
other benefits are attributable to the ownership or operation of the Borrower
and its Restricted Subsidiaries;


 


(d)                                 general corporate operating
and overhead costs and expenses of any direct or indirect parent company of the
Borrower to the extent such costs and expenses are attributable to the
ownership or operation of the Borrower and its Restricted Subsidiaries; and


 


(e)                                  fees and expenses other than
to Affiliates of the Borrower related to any unsuccessful equity or debt
offering of such parent entity;


 


(16)                            the distribution, by
dividend or otherwise, of shares of Capital Stock of, or Indebtedness owed to
the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other
than Unrestricted Subsidiaries, the primary assets of which are cash and/or
Cash Equivalents);


 


provided, however,
that at the time of, and after giving effect to, any Restricted Payment permitted
under clauses (11) and (16) of this Section 9.5(b),
no Default shall have occurred and be continuing or would occur as a
consequence thereof.


 


(c)                                  The Borrower shall not
permit any Unrestricted Subsidiary to become a Restricted Subsidiary except
pursuant to the last sentence of the definition of “Unrestricted Subsidiary.”  For purposes of designating any Restricted
Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by the
Borrower and its Restricted Subsidiaries (except to the extent repaid) in the
Subsidiary so designated shall be deemed to be Restricted Payments in an amount
determined as set forth in the last sentence of the definition of “Investments.”  Such designation shall be permitted only if a
Restricted Payment in such amount would be permitted at such time, whether pursuant
to Section 9.5(a) hereof or under clause (7), (10) or
(11) of Section 9.5(b), or pursuant to the definition of “Permitted
Investments,” and if such Subsidiary otherwise meets the definition of an
Unrestricted Subsidiary.


 


(d)                                 Notwithstanding clauses (a),
(b) and (c) of this Section 9.5, the Borrower will not,
and will not permit any of its Restricted Subsidiaries to, pay any cash
dividend or make any cash distribution on or in respect of the Borrower’s
Capital Stock or purchase for cash or otherwise acquire for cash any Capital
Stock of the Borrower or any direct or indirect parent of the Borrower, for the
purpose of paying any cash dividend or making any cash distribution to, or
acquiring Capital Stock of any direct or indirect parent of the Borrower for
cash from, the Investors, or Guarantee any Indebtedness of any Affiliate of the
Borrower for the purpose of paying such dividend, making such distribution or
so acquiring such Capital Stock to or from the Investors, in each case by means
of utilization of the cumulative Restricted Payment credit provided by the
first paragraph of this covenant, or the exceptions provided by clauses (1),
(7) or (11) of the second paragraph of this covenant or clauses
(8), (10) or (13) of the definition of “Permitted
Investments,” unless (x) at the time and after giving effect to such payment,
the Consolidated Leverage Ratio of the Borrower (including for this purpose
Indebtedness of the direct and/or indirect parent company of the Borrower)
would be equal to or less than 7.50 to 1.00 and (y) such payment is
otherwise in compliance with this covenant.


 


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9.6.                                   Dividend and
Other Payment Restrictions Affecting Restricted Subsidiaries.


 


(a)                                  The Borrower
will not, and will not permit any of its Restricted Subsidiaries that are not
Guarantors to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or consensual restriction
on the ability of any such Restricted Subsidiary to:


 


(1)                                  (A)  pay
dividends or make any other distributions to the Borrower or any of its
Restricted Subsidiaries on its Capital Stock or with respect to any other
interest or participation in, or measured by, its profits, or


 


(B)                                pay any
Indebtedness owed to the Borrower or any of its Restricted Subsidiaries;


 


(2)                                  make loans or
advances to the Borrower or any of its Restricted Subsidiaries; or


 


(3)                                  sell, lease or
transfer any of its properties or assets to the Borrower or any of its
Restricted Subsidiaries.


 


(b)                       The restrictions in Section 9.6(a) hereof
shall not apply to encumbrances or restrictions existing under or by reason of:


 


(1)                                  contractual
encumbrances or restrictions in effect on the Original Closing Date;


 


(2)                                  this Agreement,
the Loans, the Guarantees, the Senior Subordinated Refinancing Indenture and
the Senior Subordinated Notes;


 


(3)                                  the Holdco
Indenture and the Holdco Notes;


 


(4)                                  the Senior
Unsecured Interim Loan Agreement and the related documentation, the Senior
Refinancing Indenture, the Senior Notes, the Senior Take-out Notes Indenture
and the Senior Take-out Notes;


 


(5)                                  purchase money
obligations for property acquired in the ordinary course of business and
Capital Lease Obligations that impose restrictions of the nature discussed in clause
(3) of Section 9.6(a) hereof on the property so
acquired;


 


(6)                                  applicable law
or any applicable rule, regulation or order;


 


(7)                                  any agreement
or other instrument of a Person acquired by the Borrower or any Restricted
Subsidiary in existence at the time of such acquisition or at the time it
merges with or into the Borrower or any of its Restricted Subsidiaries or
assumed in connection with the acquisition of assets from any Person (but, in
any such case, not created in contemplation thereof), which encumbrance or
restriction is not applicable to any Person, or the properties or assets of any
Person, other than the Person and its Subsidiaries, 


 


85

















 


or
the property or assets of the Person and its Subsidiaries, so acquired or the
property or assets assumed;


 


(8)                                  contracts for the
sale of assets, including customary restrictions with respect to a Subsidiary
of the Borrower pursuant to an agreement that has been entered into for the
sale or disposition of all or substantially all of the Capital Stock or assets
of such Subsidiary;


 


(9)                                  Secured
Indebtedness otherwise permitted to be incurred pursuant to Section 9.7
hereof and Section 9.10 hereof that limits the right of the debtor
to dispose of the assets securing such Indebtedness;


 


(10)                            restrictions on
cash or other deposits or net worth imposed by customers under contracts
entered into in the ordinary course of business;


 


(11)                            other
Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries
permitted to be incurred subsequent to the Closing Date pursuant Section 9.7
hereof;


 


(12)                            customary
provisions in joint venture agreements and other agreements or arrangements
relating solely to such joint venture;


 


(13)                            customary
provisions contained in leases or licenses of intellectual property and other
agreements, in each case, entered into in the ordinary course of business;


 


(14)                            restrictions or
conditions contained in any trading, netting, operating, construction, service,
supply, purchase or other agreement to which the Borrower or any of its
Restricted Subsidiaries is a party entered into in the ordinary course of business,
in each case so long as such agreement prohibits the encumbrance of solely the
property or assets of the Borrower or such Restricted Subsidiary that are the
subject of such agreement, the payment rights arising thereunder or the
proceeds thereof and does not extend to any other asset or property of the
Borrower or such Restricted Subsidiary or the assets or property of any other
Restricted Subsidiary;


 


(15)                            restrictions
created in connection with any Receivables Facility that, in the good faith
determination of the Borrower are necessary or advisable to effect the transactions
contemplated under such Receivables Facility; and


 


(16)                            any
encumbrances or restrictions of the type referred to in clauses (1), (2) ,
(3) and (4) of Section 9.6(a) hereof
imposed by any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings of the contracts,
instruments or obligations referred to in clauses (1) through (15)
of this Section 9.6(b); provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are, in the good faith judgment of the Borrower,
not materially more restrictive with respect to such encumbrance and other
restrictions taken as a whole than those prior to such amendment, modification,



 


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restatement,
renewal, increase, supplement, refunding, replacement or refinancing.


 


9.7.                                   Limitation on
Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred
Stock.


 


(a)                                  The Borrower
shall not, and shall not permit any of its Restricted Subsidiaries to, directly
or indirectly, create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”),
with respect to any Indebtedness (including Acquired Indebtedness), and the
Borrower shall not issue any shares of Disqualified Stock and shall not permit
any Restricted Subsidiary to issue any shares of Disqualified Stock or
Preferred Stock; provided, however, that the Borrower may incur
Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified
Stock, and any of its Restricted Subsidiaries may incur Indebtedness (including
Acquired Indebtedness), issue shares of Disqualified Stock and issue shares of
Preferred Stock, if the Fixed Charge Coverage Ratio on a consolidated basis for
the Borrower and its Restricted Subsidiaries’ most recently ended four fiscal
quarters for which internal financial statements are available immediately
preceding the date on which such additional Indebtedness is incurred or such
Disqualified Stock or Preferred Stock is issued would have been at least 2.00
to 1.00, determined on a pro forma basis
(including a pro forma application of the net
proceeds therefrom), as if the additional Indebtedness had been incurred, or
the Disqualified Stock or Preferred Stock had been issued, as the case may be,
and the application of proceeds therefrom had occurred at the beginning of such
four-quarter period; provided, further, that Restricted Subsidiaries
that are not Guarantors may not incur Indebtedness or issue shares of
Disqualified Stock or Preferred Stock if, after giving pro forma
effect to such incurrence or issuance (including a pro forma
application of the net proceeds therefrom), more than an aggregate of $2,000.0
million of Indebtedness or Disqualified Stock or Preferred Stock of Restricted
Subsidiaries that are not Guarantors would be outstanding pursuant to this Section 9.7(a) and
clauses (12)(b) and (14) of Section 9.7(b) at
such time.


 


(b)                                 The provisions
of Section 9.7(a) hereof shall not apply to:


 


(1)                                  the incurrence
of Indebtedness under Credit Facilities by the Borrower or any of its
Restricted Subsidiaries and the issuance and creation of letters of credit and
bankers’ acceptances thereunder (with letters of credit and bankers’
acceptances being deemed to have a principal amount equal to the face amount
thereof), up to an aggregate principal amount of $16,500.0 million
outstanding at any one time;


 


(2)                                  the incurrence
by the Borrower and any Guarantor of Indebtedness arising under (a) this
Agreement (including any Guarantee), (b) the Senior Unsecured Interim Loan
Agreement (including any guarantees thereof), (c) the Senior Refinancing
Indenture (including any guarantee thereof), (d) the Senior Subordinated
Refinancing Indenture (including any guarantee thereof) and (e) the Senior
Take-out Notes Indenture;


 


(3)                                  Indebtedness of
the Borrower and its Restricted Subsidiaries in existence on the Original
Closing Date (other than Indebtedness described in clauses (1) and (2) of
this Section 9.7(b));


 


87

















 


(4)                                  Indebtedness
(including Capitalized Lease Obligations), Disqualified Stock and Preferred
Stock incurred by the Borrower or any of its Restricted Subsidiaries, to
finance the purchase, lease, improvement, development or construction of property
(real or personal), equipment or other fixed or capital assets that are used or
useful in a Similar Business, whether through the direct purchase of assets or
the Capital Stock of any Person owning such assets; provided that the
aggregate amount of Indebtedness, Disqualified Stock and Preferred Stock
incurred pursuant to this clause (4), when aggregated with all other
outstanding amounts of Indebtedness incurred under clause (13) to refinance
Indebtedness initially incurred in reliance on this clause (4), does not
exceed (x) prior to the Interim Loan Conversion Date, $1,000.0 million and
(y) thereafter, 4.0% of the Borrower’s Total Assets, in each case at any
one time outstanding so long as such Indebtedness exists at the date of such
purchase, lease or improvement or is created within 270 days thereafter;


 


(5)                                  Indebtedness
incurred by the Borrower or any of its Restricted Subsidiaries constituting
reimbursement obligations with respect to letters of credit issued in the
ordinary course of business, including letters of credit in respect of workers’
compensation or employee health claims, or other Indebtedness with respect to
reimbursement-type obligations regarding workers’ compensation or employee
health claims; provided that upon the drawing of such letters of credit
or the incurrence of such Indebtedness, such obligations are reimbursed within
30 days following such drawing or incurrence;


 


(6)                                  Indebtedness
arising from agreements of the Borrower or its Restricted Subsidiaries
providing for indemnification, adjustment of purchase price or similar obligations,
in each case, incurred or assumed in connection with the disposition of any business,
assets or a Subsidiary, other than guarantees of Indebtedness incurred by any
Person acquiring all or any portion of such business, assets or a Subsidiary
for the purpose of financing such acquisition; provided that such
Indebtedness is not reflected on the balance sheet of the Borrower or any of
its Restricted Subsidiaries (contingent obligations referred to in a footnote to
financial statements and not otherwise reflected on the balance sheet will not
be deemed to be reflected on such balance sheet for purposes of this clause
(6));


 


(7)                                  Indebtedness of
the Borrower to a Restricted Subsidiary; provided that any such Indebtedness
having a term exceeding 364 days owing to a Restricted Subsidiary that is not a
Guarantor is expressly subordinated in right of payment to the Loans; provided,
further, that any subsequent issuance or transfer of any Capital Stock
or any other event which results in any Restricted Subsidiary ceasing to be a
Restricted Subsidiary or any other subsequent transfer of any such Indebtedness
(except to the Borrower or another Restricted Subsidiary) shall be deemed, in
each case, to be an incurrence of such Indebtedness;


 


(8)                                  Indebtedness of
a Restricted Subsidiary to the Borrower or another Restricted Subsidiary; provided
that if a Guarantor incurs such Indebtedness having a term exceeding 364 days
owing to a Restricted Subsidiary that is not a Guarantor, such Indebtedness is
expressly subordinated in right of payment to the Guarantee of the Loans of


 


88
















 


such
Guarantor; provided, further, that any subsequent transfer of any
such Indebtedness (except to the Borrower or another Restricted Subsidiary)
shall be deemed, in each case, to be an incurrence of such Indebtedness not
permitted by this clause (8);


 


(9)                                  shares of
Preferred Stock of a Restricted Subsidiary issued to the Borrower or another
Restricted Subsidiary; provided that any subsequent issuance or transfer
of any Capital Stock or any other event which results in any such Restricted
Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent
transfer of any such shares of Preferred Stock (except to the Borrower or
another Restricted Subsidiary) shall be deemed in each case to be an issuance
of such shares of Preferred Stock not permitted by this clause (9);


 


(10)                            Hedging
Obligations (excluding Hedging Obligations entered into for speculative
purposes) for the purpose of limiting interest rate risk with respect to any Indebtedness
permitted to be incurred pursuant to this Section 9.7, exchange
rate risk or commodity pricing risk;


 


(11)                            obligations in
respect of performance, bid, appeal and surety bonds and completion guarantees
provided by the Borrower or any of its Restricted Subsidiaries in the ordinary
course of business;


 


(12)                            (a) Indebtedness
or Disqualified Stock of the Borrower and Indebtedness, Disqualified Stock or
Preferred Stock of the Borrower or any Restricted Subsidiary equal to 200.0% of
the net cash proceeds received by the Borrower since immediately after the
Original Closing Date from the issue or sale of Equity Interests of the
Borrower or cash contributed to the capital of the Borrower (in each case,
other than Excluded Contributions or proceeds of Disqualified Stock or sales of
Equity Interests to the Borrower or any of its Subsidiaries) as determined in
accordance with clauses (3)(b) and (3)(c) of Section 9.5(a) hereof
to the extent such net cash proceeds or cash have not been applied pursuant to
such clauses to make Restricted Payments or to make other Investments, payments
or exchanges pursuant to Section 9.5(b) hereof or to make
Permitted Investments (other than Permitted Investments specified in clauses (1) and
(3) of the definition thereof); and


 


(b)                                 Indebtedness or Disqualified
Stock of the Borrower and Indebtedness, Disqualified Stock or Preferred Stock
of the Borrower or any Restricted Subsidiary not otherwise permitted hereunder
in an aggregate principal amount or liquidation preference, which when
aggregated with the principal amount and liquidation preference of all other
Indebtedness, Disqualified Stock and Preferred Stock then outstanding and
incurred pursuant to this clause (12)(b), does not at any one time
outstanding exceed (x) prior to the Interim Loan Conversion Date, $500.0
million and (y) thereafter, $1,000.0 million; provided, however,
that on a pro forma basis, together with any
amounts incurred and outstanding by Restricted Subsidiaries that are not
Guarantors pursuant to the second proviso to Section 9.7(a) and
clause (14) of this Section 9.7(a), no more than
$2,000.0 million of Indebtedness, Disqualified Stock or Preferred Stock at
any one time outstanding and incurred pursuant to this clause (12)(b) shall
be incurred by Restricted Subsidiaries that are not Guarantors (it being
understood that any Indebtedness, Disqualified Stock or Preferred Stock
incurred pursuant to this clause (12)(b) shall cease to be


 


89

















 


deemed incurred or
outstanding for purposes of this clause (12)(b) but shall be
deemed incurred for the purposes of Section 9.7(a) hereof from
and after the first date on which the Borrower or such Restricted Subsidiary
could have incurred such Indebtedness, Disqualified Stock or Preferred Stock under
Section 9.7(a) hereof without reliance on this clause (12)(b));


 


(13)                            the incurrence
or issuance by the Borrower or any Restricted Subsidiary of Indebtedness,
Disqualified Stock or Preferred Stock which serves to refund, refinance,
replace, renew, extend or defease any Indebtedness, Disqualified Stock or Preferred
Stock of the Borrower or any Restricted Subsidiary incurred as permitted under Section 9.7(a) hereof
and clauses (2), (3), (4) and (12)(a) of
this Section 9.7(b) above, this clause (13) and clause
(14) of this Section 9.7(b) or any Indebtedness,
Disqualified Stock or Preferred Stock of the Borrower or any Restricted
Subsidiary issued to so refund or refinance such Indebtedness, Disqualified
Stock or Preferred Stock of the Borrower or any Restricted Subsidiary including
additional Indebtedness, Disqualified Stock or Preferred Stock incurred to pay
premiums (including reasonable tender premiums), defeasance costs and fees in
connection therewith (the “Refinancing Indebtedness”)
prior to its respective maturity; provided, however, that such
Refinancing Indebtedness:


 


(a)                                  has a Weighted Average Life
to Maturity at the time such Refinancing Indebtedness is incurred which is not
less than the remaining Weighted Average Life to Maturity of the Indebtedness,
Disqualified Stock or Preferred Stock being refunded, refinanced, replaced,
renewed or defeased,


 


(b)                                 to the extent such
Refinancing Indebtedness refinances (i) Indebtedness subordinated or pari passu to the Loans or any Guarantee thereof, such
Refinancing Indebtedness is subordinated or pari passu to
the Loans or the Guarantee at least to the same extent as the Indebtedness
being refinanced or refunded or (ii) Disqualified Stock or Preferred
Stock, such Refinancing Indebtedness must be Disqualified Stock or Preferred
Stock, respectively, and


 


(c)                                  shall not include
Indebtedness, Disqualified Stock or Preferred Stock of a Subsidiary of the
Borrower that is not a Guarantor that refinances Indebtedness, Disqualified
Stock or Preferred Stock of the Borrower or a Guarantor;


 


and
provided, further, that subclause (a) of this clause (13)
will not apply to any refunding or refinancing of any Senior Indebtedness;


 


(14)                            Indebtedness,
Disqualified Stock or Preferred Stock of (x) the Borrower or a Restricted
Subsidiary incurred to finance an acquisition or (y) Persons that are acquired
by the Borrower or any Restricted Subsidiary or merged into the Borrower or a
Restricted Subsidiary in accordance with the terms of this Agreement; provided
that after giving effect to such acquisition or merger, either


 


(a)                                  the Borrower would be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in Section 9.7(a) hereof,
or


 


90

















 


(b)                                 the Fixed Charge Coverage
Ratio of the Borrower and its Restricted Subsidiaries is greater than
immediately prior to such acquisition or merger;


 


provided, however, that on a pro forma
basis, together with amounts incurred and outstanding pursuant to the second
proviso to Section 9.7(a) and clause (12)(b) of
this Section 9.7(b), no more than $2,000.0 million of
Indebtedness, Disqualified Stock or Preferred Stock at any one time outstanding
and incurred by Restricted Subsidiaries that are not Guarantors pursuant to
this clause (14) shall be incurred and outstanding;


 


(15)                            Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument drawn against insufficient funds in the ordinary
course of business; provided that such Indebtedness is extinguished
within five Business Days of its incurrence;


 


(16)                            Indebtedness of
the Borrower or any of its Restricted Subsidiaries supported by a letter of
credit issued pursuant to any Credit Facilities, in a principal amount not in
excess of the stated amount of such letter of credit;


 


(17)                            (a) any
guarantee by the Borrower or a Restricted Subsidiary of Indebtedness or other
obligations of any Restricted Subsidiary, so long as the incurrence of such
Indebtedness incurred by such Restricted Subsidiary is permitted under the
terms of this Agreement, or (b) any guarantee by a Restricted Subsidiary
of Indebtedness of the Borrower; provided that such guarantee is
incurred in accordance with Section 9.13 hereof;


 


(18)                            Indebtedness of
Foreign Subsidiaries of the Borrower in an amount not to exceed at any one time
outstanding and together with any other Indebtedness incurred under this clause
(18) 5.0% of the Total Assets of the Foreign Subsidiaries (it being understood
that any Indebtedness incurred pursuant to this clause (18) shall
cease to be deemed incurred or outstanding for purposes of this clause (18)
but shall be deemed incurred for the purposes of Section 9.7(a) hereof
from and after the first date on which the Borrower or such Restricted
Subsidiaries could have incurred such Indebtedness under Section 9.7(a) hereof
without reliance on this clause (18));


 


(19)                            Indebtedness of
the Borrower or any of its Restricted Subsidiaries consisting of (i) the
financing of insurance premiums or (ii) take-or-pay obligations contained
in supply arrangements, in each case, incurred in the ordinary course of
business;


 


(20)                            Indebtedness
consisting of Indebtedness issued by the Borrower or any of its Restricted
Subsidiaries to current or former officers, directors and employees thereof,
their respective estates, spouses or former spouses, in each case to finance
the purchase or redemption of Equity Interests of the Borrower or any direct or
indirect parent company of the Borrower to the extent described in clause (4) of
Section 9.5(b) hereof;


 


(21)                            customer
deposits and advance payments received in the ordinary course of business from
customers for goods and services purchased in the ordinary course of business;


 


91

















 


(22)                            Indebtedness
owed on a short-term basis of no longer than 30 days to banks and other
financial institutions incurred in the ordinary course of business of the
Borrower and its Restricted Subsidiaries with such banks or financial
institutions that arises in connection with ordinary banking arrangements to
manage cash balances of the Borrower and its Restricted Subsidiaries; and


 


(23)                            Indebtedness of
the Borrower or any of its Restricted Subsidiaries undertaken in connection
with cash management and related activities with respect to any Subsidiary or
joint venture in the ordinary course of business.


 


(c)                                  For purposes of
determining compliance with this Section 9.7:


 


(x)                                   in the event
that an item of Indebtedness, Disqualified Stock or Preferred Stock (or any
portion thereof) meets the criteria of more than one of the categories of
permitted Indebtedness, Disqualified Stock or Preferred Stock described in clauses
(1) through (23) of this Section 9.7(b) or is
entitled to be incurred pursuant to Section 9.7(a) hereof, the
Borrower, in its sole discretion, shall classify or reclassify such item of Indebtedness,
Disqualified Stock or Preferred Stock (or any portion thereof) and shall only
be required to include the amount and type of such Indebtedness, Disqualified
Stock or Preferred Stock in clauses (1) through (23) of this
Section 9.7(b) or under Section 9.7(a) hereof;
provided that all Indebtedness outstanding under the Credit Facilities
on the Closing Date shall be treated as incurred on the Closing Date under clause
(1) of Section 9.7(b) hereof; and


 


(y)                                 at the time of incurrence,
the Borrower will be entitled to divide and classify an item of Indebtedness in
more than one of the types of Indebtedness described in Sections 9.7(a) and
9.7(b) hereof.


 


(d)                                 Accrual of
interest or dividends, the accretion of accreted value, the accretion or
amortization of original issue discounts and the payment of interest or dividends
in the form of additional Indebtedness, Disqualified Stock or Preferred Stock
shall not be deemed to be an incurrence of Indebtedness, Disqualified Stock or
Preferred Stock for purposes of this Section 9.7.


 


(e)                                  For purposes of
determining compliance with any U.S. dollar-denominated restriction on the
incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of
Indebtedness denominated in a foreign currency shall be calculated based on the
relevant currency exchange rate in effect on the date such Indebtedness was
incurred, in the case of term debt, or first committed, in the case of
revolving credit debt; provided that if such Indebtedness is incurred to
refinance other Indebtedness denominated in a foreign currency, and such refinancing
would cause the applicable U.S. dollar-denominated restriction to be exceeded
if calculated at the relevant currency exchange rate in effect on the date of
such refinancing, such U.S. dollar-denominated restriction shall be deemed not
to have been exceeded so long as the principal amount of such refinancing
Indebtedness does not exceed the principal amount of such Indebtedness being
refinanced.


 


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The principal amount of any Indebtedness incurred to
refinance other Indebtedness, if incurred in a different currency from the
Indebtedness being refinanced, shall be calculated based on the currency
exchange rate applicable to the currencies in which such respective
Indebtedness is denominated that is in effect on the date of such refinancing.


 


9.8.                                   Asset Sales.


 


(a)                                  The Borrower
shall not, and shall not permit any of its Restricted Subsidiaries to
consummate, directly or indirectly, an Asset Sale, unless:


 


(1)                                  the Borrower or
such Restricted Subsidiary, as the case may be, receives consideration at the
time of such Asset Sale at least equal to the fair market value (as determined
in good faith by the Borrower) of the assets sold or otherwise disposed of; and


 


(2)                                  except in the
case of a Permitted Asset Swap, at least 75% of the consideration therefor
received by the Borrower or such Restricted Subsidiary, as the case may be, is
in the form of cash or Cash Equivalents; provided that the amount of:


 


(A)                              any liabilities (as
reflected in the Borrower’s or such Restricted Subsidiary’s most recent balance
sheet or in the footnotes thereto, or if incurred or accrued subsequent to the
date of such balance sheet, such liabilities that would have been shown on the
Borrower or such Restricted Subsidiary’s balance sheet or in the footnotes
thereto if such incurrence or accrual have taken place on the date of such
balance sheet, as determined by the Borrower) of the Borrower or such
Restricted Subsidiary, other than liabilities that are by their terms subordinated
to the Loans, that are assumed by the transferee of any such assets and for
which the Borrower and all of its Restricted Subsidiaries have been validly released
by all creditors in writing,


 


(B)                                any securities, notes or
other obligations or assets received by the Borrower or such Restricted
Subsidiary from such transferee that are converted by the Borrower or such
Restricted Subsidiary into cash (to the extent of the cash received) within 180
days following the closing of such Asset Sale, and


 


(C)                                any Designated Non-cash
Consideration received by the Borrower or such Restricted Subsidiary in such
Asset Sale having an aggregate fair market value, taken together with all other
Designated Non-cash Consideration received pursuant to this clause (C) that
is at that time outstanding, not to exceed 5% of the Borrower’s Total Assets at
the time of the receipt of such Designated Non-cash Consideration, with the
fair market value of each item of Designated Non-cash Consideration being
measured at the time received and without giving effect to subsequent changes
in value,


 


shall
be deemed to be cash for purposes of this provision and for no other purpose.


 


93

















 


(b)                                 Within 450 days
after the receipt of any Net Asset Sale Proceeds of any Asset Sale, the
Borrower or such Restricted Subsidiary, at its option, may apply the Net Asset
Sale Proceeds from such Asset Sale,


 


(1)                                  to permanently
reduce:


 


(A)                              Obligations under Senior
Indebtedness, and to correspondingly reduce commitments with respect thereto;


 


(B)                                Obligations under (i) this
Agreement or (ii) other Senior Subordinated Indebtedness of the Borrower
or any Guarantor (and to correspondingly reduce commitments with respect
thereto) through open market purchases or by making an Asset Sale Offer in
accordance with the procedures set forth below; provided that to the extent the Borrower or such Restricted
Subsidiary reduces or makes an offer to prepay, as applicable, Obligations
under Senior Subordinated Indebtedness other than the Loans, the Borrower shall
equally and ratably reduce Obligations under the Loans as provided under Section 5.1
by making an offer in accordance with the procedures set forth below for an
Asset Sale Offer to all Lenders to equally and ratably reduce or make an offer
to prepay, as applicable, the Loans at 100% of the principal amount thereof,
plus the amount of accrued but unpaid interest, if any, on the amount of the
Loans that would otherwise be prepaid; or


 


(C)                                Indebtedness of a Restricted
Subsidiary that is not a Guarantor, other than Indebtedness owed to the
Borrower or another Restricted Subsidiary (or any Affiliate thereof);


 


(2)                                  to make (a) an
Investment in any one or more businesses, provided that if such business
is not a Restricted Subsidiary, such Investment is in the form of the acquisition
of Capital Stock and results in the Borrower or another of its Restricted
Subsidiaries, as the case may be, owning an amount of the Capital Stock of such
business such that it constitutes a Restricted Subsidiary, (b) an
Investment in properties (c) capital expenditures or (d) acquisitions
of other assets, in each of clauses (a) through (d), that
are used or useful in a Similar Business or that replace the businesses,
properties and/or assets that are the subject of such Asset Sale;


 


provided that, in the
case of clause (2) above, a binding commitment shall be treated as
a permitted application of the Net Asset Sale Proceeds from the date of such
commitment so long as the Borrower or such other Restricted Subsidiary enters
into such commitment with the good faith expectation that such Net Asset Sale
Proceeds will be applied to satisfy such commitment within 180 days of such
commitment (an “Acceptable Commitment”) and, in
the event any Acceptable Commitment is later cancelled or terminated for any
reason before the Net Asset Sale Proceeds are applied in connection therewith,
the Borrower or such Restricted Subsidiary enters into another Acceptable
Commitment (a “Second Commitment”) within
180 days of such cancellation or termination; provided,  further,
that if any Second Commitment is later cancelled or terminated for any reason
before such Net Asset Sale Proceeds are applied, then such Net Asset Sale Proceeds
shall constitute Excess Proceeds.


 


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(c)                                  Any Net Asset
Sale Proceeds that are not invested or applied as provided and within the time
period set forth in Section 9.8(b) shall be deemed to
constitute “Excess Proceeds.”  When the aggregate amount of Excess Proceeds
exceeds $200.0 million, the Borrower shall make an offer to all Lenders or
holders of the Senior Subordinated Notes, as applicable and, if required or
permitted by the terms of any Senior Subordinated Indebtedness, to the holders
of such Senior Subordinated Indebtedness (an “Asset Sale
Offer”), to purchase the maximum aggregate principal amount of the
Loans or Senior Subordinated Notes, as applicable, and such Senior Subordinated
Indebtedness that is a minimum of $2,000 or an integral multiple of $1,000 in
excess thereof that may be purchased out of the Excess Proceeds at an offer
price in cash in an amount equal to 100% of the principal amount thereof, plus
accrued and unpaid interest, to the date fixed for the closing of such offer,
in accordance with the procedures set forth in this Agreement and the Senior
Subordinated Refinancing Indenture.  The
Borrower will commence an Asset Sale Offer with respect to Excess Proceeds
within ten Business Days after the date that Excess Proceeds exceed
$200.0 million by mailing the notice required pursuant to the terms of
this Agreement or the Senior Subordinated Refinancing Indenture, as applicable,
with a copy to the Administrative Agent.


 


To the extent that the aggregate amount of Loans or
Senior Subordinated Notes, as applicable, and any other Senior Subordinated
Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Borrower may use any remaining Excess Proceeds for general
corporate purposes, subject to other covenants contained in this Agreement or
the Senior Subordinated Refinancing Indenture, as applicable.  If the aggregate principal amount of Loans or
Senior Subordinated Notes, as applicable, or the Senior Subordinated
Indebtedness surrendered by such holders thereof exceeds the amount of Excess
Proceeds, the Administrative Agent shall select the Loans or Senior
Subordinated Notes, as applicable, and such other Senior Subordinated
Indebtedness to be purchased on a pro rata basis based on the accreted value or
principal amount of the Loans or Senior Subordinated Notes, as applicable, or
such Senior Subordinated Indebtedness which have been accepted for repayment by
the applicable Lender.  Upon completion
of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at
zero.  Additionally, the Borrower may, at
its option, make an Asset Sale Offer using proceeds from any Asset Sale at any
time after consummation of such Asset Sale; provided that such Asset
Sale Offer shall be in an aggregate amount of not less than
$25.0 million.  Upon consummation of
such Asset Sale Offer, any Net Asset Sale Proceeds not required to be used to
purchase Loans or Senior Subordinated Notes, as applicable, shall not be deemed
Excess Proceeds.


 


(d)                                 Pending the
final application of any Net Asset Sale Proceeds pursuant to this Section 9.8,
the holder of such Net Asset Sale Proceeds may apply such Net Asset Sale Proceeds
temporarily to reduce Indebtedness outstanding under a revolving credit
facility or otherwise invest such Net Asset Sale Proceeds in any manner not
prohibited by this Agreement.


 


9.9.                                   Transactions
with Affiliates.


 


(a)                                  The Borrower
shall not, and shall not permit any of its Restricted Subsidiaries to, make any
payment to, or sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from, or enter into
or make or amend any transaction, contract, agreement, understanding, loan,
advance or guarantee with, or for the


 


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benefit of, any Affiliate of the Borrower
(each of the foregoing, an “Affiliate
Transaction”) involving aggregate payments or consideration in excess
of $40.0 million, unless:


 


(1)               such Affiliate
Transaction is on terms that are not materially less favorable to the Borrower
or its relevant Restricted Subsidiary than those that would have been obtained
in a comparable transaction by the Borrower or such Restricted Subsidiary with
an unrelated Person on an arm’s-length basis; and


 


(2)               the Borrower
delivers to the Administrative Agent with respect to any Affiliate Transaction
or series of related Affiliate Transactions involving aggregate payments or
consideration in excess of $80.0 million, a resolution adopted by the
majority of the board of directors of the Borrower approving such Affiliate
Transaction and set forth in an Officer’s Certificate certifying that such
Affiliate Transaction complies with clause (1) of this Section 9.9(a).


 


(b)              The provisions of Section 9.9(a) hereof
shall not apply to the following:


 


(1)               transactions
between or among the Borrower or any of its Restricted Subsidiaries;


 


(2)               Restricted
Payments permitted by Section 9.5 hereof and the definition of “Permitted
Investments”;


 


(3)               the payment of
management, consulting, monitoring and advisory fees and related expenses to
the Investors pursuant to the Sponsor Management Agreement (plus any unpaid
management, consulting, monitoring and advisory fees and related expenses
accrued in any prior year) and the termination fees pursuant to the Sponsor Management
Agreement, in each case as in effect on the Closing Date, or any amendments
thereto (so long as any such amendment is not, in the good faith judgment of
the board of directors of the Borrower, disadvantageous to the Lenders when
taken as a whole compared to the Sponsor Management Agreement as in effect on
the Closing Date);


 


(4)               the payment of
reasonable and customary fees paid to, and indemnities provided for the benefit
of, former, current or future officers, directors, employees or consultants of
Borrower, any of its direct or indirect parent companies or any of its Restricted
Subsidiaries;


 


(5)               transactions in
which the Borrower or any of its Restricted Subsidiaries, as the case may be,
delivers to the Administrative Agent a letter from an Independent Financial
Advisor stating that such transaction is fair to the Borrower or such
Restricted Subsidiary from a financial point of view or stating that the terms
are not materially less favorable to the Borrower or its relevant Restricted
Subsidiary than those that would have been obtained in a comparable transaction
by the Borrower or such Restricted Subsidiary with an unrelated Person on an
arm’s-length basis;


 


(6)               any agreement
or arrangement as in effect as of the Closing Date, or any amendment thereto
(so long as any such amendment is not disadvantageous to the Lenders 


 


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when
taken as a whole as compared to the applicable agreement as in effect on the
Closing Date);


 


(7)               the existence
of, or the performance by the Borrower or any of its Restricted Subsidiaries of
its obligations under the terms of, any stockholders agreement or its
equivalent (including any registration rights agreement or purchase agreement
related thereto) to which it is a party as of the Closing Date and any similar
agreements which it may enter into thereafter; provided, however,
that the existence of, or the performance by the Borrower or any of its
Restricted Subsidiaries of obligations under any future amendment to any such
existing agreement or under any similar agreement entered into after the Closing
Date shall only be permitted by this clause (7) to the extent that
the terms of any such amendment or new agreement are not otherwise
disadvantageous to the Lenders when taken as a whole;


 


(8)               the
Transactions, the Senior Take out Notes Offering and the payment of all fees
and expenses related to the Transactions and the Senior Take out Notes
Offering;


 


(9)               transactions
with customers, clients, suppliers, or purchasers or sellers of goods or
services, in each case in the ordinary course of business and otherwise in compliance
with the terms of this Agreement which are fair to the Borrower and its Restricted
Subsidiaries, in the reasonable determination of the board of directors of the
Borrower or the senior management thereof, or are on terms at least as
favorable as might reasonably have been obtained at such time from an unaffiliated
party;


 


(10)         the issuance or
transfer of Equity Interests (other than Disqualified Stock) of the Borrower to
any Permitted Lender or to any former, current or future director, officer,
employee or consultant (or their respective estates, investment funds,
investment vehicles, spouses or former spouses) of the Borrower, any of its
direct or indirect parent companies or any of its Subsidiaries;


 


(11)         sales of
accounts receivable, or participations therein, in connection with any
Receivables Facility;


 


(12)         payments by the
Borrower or any of its Restricted Subsidiaries to any of the Investors made for
any financial advisory, financing, underwriting or placement services or in
respect of other investment banking activities, including, without limitation,
in connection with acquisitions or divestitures, which payments are approved by
a majority of the board of directors of the Borrower in good faith;


 


(13)         payments or
loans (or cancellation of loans) to employees or consultants of the Borrower,
any of its direct or indirect parent companies or any of its Restricted
Subsidiaries and employment agreements, stock option plans and other similar
arrangements with such employees or consultants which, in each case, are
approved by the Borrower in good faith;


 


(14)         investments by
the Investors in securities of the Borrower or any of its Restricted
Subsidiaries (and the payment of reasonable out-of-pocket expenses incurred by


 


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the
Investors in connection therewith) so long as (i) the investment is being
offered generally to other investors on the same or more favorable terms and (ii) the
investment constitutes less than 5% of the proposed or outstanding issue amount
of such class of securities;


 


(15)         payments to and
from, and transactions with, any joint venture in the ordinary course of
business; and


 


(16)         payments by the
Borrower (and any direct or indirect parent thereof) and its Subsidiaries
pursuant to tax sharing agreements among the Borrower (and any such parent) and
its Subsidiaries on customary terms to the extent attributable to the ownership
or operation of the Borrower and its Subsidiaries; provided that in each case the amount of such payments in
any fiscal year does not exceed the amount that the Borrower, its Restricted
Subsidiaries and its Unrestricted Subsidiaries (to the extent of amounts
received from Unrestricted Subsidiaries) would be required to pay in respect of
foreign, federal, state and local taxes for such fiscal year were the Borrower
and its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the
extent described above) to pay such taxes separately from any such parent
entity.


 


9.10.          Liens.  The Borrower shall not, and shall not permit any
Guarantor to, directly or indirectly, create, incur, assume or suffer to exist
any Lien (except Permitted Liens) that secures obligations under any
Indebtedness ranking pari passu with
or subordinated to the Loans or any related Guarantee, on any asset or property
of the Borrower or any Guarantor, or any income or profits therefrom, or assign
or convey any right to receive income therefrom, unless:


 


(1)               in the case of
Liens securing Subordinated Indebtedness, the Loans and related Guarantees are
secured by a Lien on such property, assets or proceeds that is senior in priority
to such Liens; or


 


(2)               in all other
cases, the Loans or the Guarantees are equally and ratably secured or are
secured by a Lien on such property, assets or proceeds that is senior in priority
to such Liens;


 


except that the foregoing shall not apply to
Liens securing Senior Indebtedness of the Borrower or any Guarantor.


 


9.11.          Corporate Existence.  Subject to Sections 9.14
and 9.15, the Borrower shall do or cause to be done all things necessary
to preserve and keep in full force and effect (i) its corporate existence,
and the corporate, partnership or other existence of each of its Restricted
Subsidiaries, in accordance with the respective organizational documents (as
the same may be amended from time to time) of the Borrower or any such
Restricted Subsidiary and (ii) the rights (charter and statutory),
licenses and franchises of the Borrower and its Restricted Subsidiaries; provided
that the Borrower shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of its
Restricted Subsidiaries, if the Borrower in good faith shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Borrower and its Restricted Subsidiaries, taken as a whole.


 


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9.12.                             Offer to
Repurchase upon Change of Control.


 


(a)                                  If a Change of
Control occurs, unless otherwise prepaid in accordance with Section 5.2(a) or
Section 9.8 hereof, the Borrower shall make an offer to prepay all
of the Loans pursuant to the offer described below (the “Change of Control Offer”) at a price in cash (the “Change of Control Prepayment”)
equal to 100% of the aggregate principal amount thereof plus accrued and unpaid
interest, to the date of purchase, subject to the right of Lenders of record on
the relevant record date to receive interest due on the relevant interest
payment date.  Within 30 days following
any Change of Control, the Borrower shall send notice of such Change of Control
Offer by first-class mail, with a copy to the Administrative Agent, to each
Lender to the address of such Lender appearing in the Register with a copy to
the Administrative Agent, with the following information:


 


(1)                        that a Change
of Control Offer is being made pursuant to this Section 9.12 and
that such Lender has the right to require the Borrower to prepay such Lender’s
Loans;


 


(2)                        the prepayment
amount and the prepayment date, which will be no earlier than 30 days nor later
than 60 days from the date such notice is mailed (the “Change of Control Prepayment Date”);


 


(3)                        that any Loans
not properly accepted for prepayment pursuant to this Section 9.12
will remain outstanding and continue to accrue interest;


 


(4)                        that unless the
Borrower defaults in the prepayment of the Change of Control Prepayment, all
Loans accepted for prepayment pursuant to the Change of Control Offer will
cease to accrue interest on the Change of Control Prepayment Date;


 


(5)                        that Lenders
shall be entitled to withdraw their election to require the Borrower to prepay
such Loans, provided
that the Borrower receives, not later than the close of business on the
expiration date of the Change of Control Offer, a facsimile transmission or
letter setting forth the name of the Lender, the principal amount of Loans
accepted for prepayment, and a statement that such Lender is withdrawing its
election to have such Loans prepaid; and


 


(6)                        the other
instructions, as determined by the Borrower, consistent with this Section 9.12,
that a Lender must follow.


 


The notice, if mailed in a
manner herein provided, shall be conclusively presumed to have been given,
whether or not the Lender receives such notice. 
If (a) the notice is mailed in a manner herein provided and (b) any
Lender fails to receive such notice or a Lender receives such notice but it is
defective, such Lender’s failure to receive such notice or such defect shall
not affect the validity of the proceedings for the purchase of the Loans as to all
other Lenders that properly received such notice without defect.


 


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(b)                       On the Change
of Control Prepayment Date, the Borrower shall, to the extent permitted by law,


 


(i)                                     prepay all
Loans, or portions thereof, accepted for prepayment in accordance with this Section 9.12
pursuant to the Change of Control Offer;


 


(ii)                                  deposit with
the Administrative Agent an amount equal to the aggregate Change of Control
Prepayment in respect of all Loans or portions thereof so accreted for
prepayment; and


 


(iii)                               deliver, or
cause to be delivered, to the Administrative Agent an Officer’s Certificate to
the Administrative Agent stating that such Loans or portions thereof have been
prepaid by the Borrower.


 


(c)                                  The Borrower
shall not be required to make a Change of Control Offer following a Change of
Control if a third-party makes the Change of Control Offer in the manner, at
the times and otherwise in compliance with the requirements set forth in this Section 9.12
applicable to a Change of Control Offer made by the Borrower and repays all
Loans accepted for prepayment pursuant to such Change of Control Offer.  Notwithstanding anything to the contrary
herein, a Change of Control Offer may be made in advance of a Change of
Control, conditional upon such Change of Control, if a definitive agreement is
in place for the Change of Control at the time of making of the Change of
Control Offer.


 


(d)                                 Other than as
specifically provided in this Section 9.12, any prepayment pursuant
to this Section 9.12 shall be made pursuant to the provisions of Sections
5.2, 5.5 and 5.6 hereof.


 


9.13.                             Limitation on
Guarantees of Indebtedness by Restricted Subsidiaries.  The Borrower shall not
permit any of its Wholly-Owned Subsidiaries that are Restricted Subsidiaries
(and non-Wholly Owned Subsidiaries if such non-Wholly Owned Subsidiaries guarantee
capital markets debt securities of the Borrower or any Guarantor), other than a
Guarantor, a Foreign Subsidiary or a Receivables Subsidiary, to guarantee the
payment of any Indebtedness of the Borrower or any other Guarantor unless:


 


(1)                                     such Restricted
Subsidiary within 30 days executes and delivers a Guarantee substantially in
the form of Exhibit A providing for a Guarantee by such Restricted
Subsidiary, provided that:


 


(a)                                  if the Loans or such
Guarantor’s Guarantee is subordinated in right of payment to such Indebtedness,
the Guarantee shall be subordinated to such Restricted Subsidiary’s guarantee
with respect to such Indebtedness substantially to the same extent as the Loans are
subordinated to such Indebtedness; and


 


(b)                                 if such Indebtedness is by
its express terms subordinated in right of payment to the Loans or such
Guarantor’s Guarantee, any such guarantee by such Restricted Subsidiary with
respect to such Indebtedness shall be subordinated in 


 


100

















 


right of payment to such
Guarantee substantially to the same extent as such Indebtedness is subordinated
to the Loans; and


 


(2)                                  such Restricted
Subsidiary waives, and shall not in any manner whatsoever claim or take the
benefit or advantage of, any rights of reimbursement, indemnity or subrogation
or any other rights against the Borrower or any other Restricted Subsidiary as
a result of any payment by such Restricted Subsidiary under its Guarantee;


 


provided that this Section 9.13
shall not be applicable to (i) any guarantee of any Restricted Subsidiary
that existed at the time such Person became a Restricted Subsidiary and was not
incurred in connection with, or in contemplation of, such Person becoming a
Restricted Subsidiary, (ii) guarantees of any Receivables Facility by any
Receivables Subsidiary and (iii) any guarantee relating to the Senior Take
out Notes Offering.


 


9.14.                             Merger,
Consolidation or Sale of All or Substantially All Assets.


 


(a)                                  The Borrower shall not consolidate
or merge with or into or wind up into (whether or not the Borrower is the
surviving corporation), or sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its properties or assets, in one or more
related transactions, to any Person unless:


 


(1)                                  either:  (x) the Borrower is the surviving
entity; or (y) the Person formed by or surviving any such consolidation or
merger (if other than the Borrower) or to which such sale, assignment,
transfer, lease, conveyance or other disposition will have been made is an
entity organized or existing under the laws of the jurisdiction of organization
of the Borrower or the laws of the United States, any state thereof, the
District of Columbia or any territory thereof (such Person, as the case may be,
being herein called the “Successor Borrower”);
provided that if the surviving Person is not a corporation, a corporation
organized or existing under the laws of the jurisdiction of organization of the
Borrower or the laws of the United States, any state thereof, the District of
Columbia or any territory thereof shall be a co-Borrower of the Loans;


 


(2)                                  the Successor
Borrower, if other than the Borrower, expressly assumes all the obligations of
the Borrower under the Loans pursuant to a supplemental agreement or other
documents or instruments in form reasonably satisfactory to the Administrative
Agent;


 


(3)                                  immediately
after such transaction, no Default exists;


 


(4)                                  immediately
after giving pro forma effect to such
transaction and any related financing transactions, as if such transactions had
occurred at the beginning of the applicable four-quarter period,


 


(A)                              the Successor Borrower would
be permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in Section 9.7(a) hereof,
or


 


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(B)                                the Fixed Charge Coverage
Ratio for the Successor Borrower, the Borrower and its Restricted Subsidiaries
would be greater than such ratio for the Borrower and its Restricted
Subsidiaries immediately prior to such transaction;


 


(5)                                  each Guarantor, unless it is
the other party to the transactions described above, in which case Section 9.14(c)(1)(B) hereof
shall apply, shall have by supplemental agreement confirmed that its Guarantee
shall apply to such Person’s obligations under this Agreement and the Loans;
and


 


(6)                                  the Borrower shall have
delivered to the Administrative Agent an Officer’s Certificate stating that
such consolidation, merger or transfer and such supplemental agreements, if
any, comply with this Agreement and, if a supplemental agreement is required in
connection with such transaction, such supplement shall comply with the applicable
provisions of this Agreement.


 


(b)                                 The Successor
Borrower shall succeed to, and be substituted for the Borrower, under this
Agreement, the Guarantees, the Loans, the Senior Subordinated Refinancing
Indenture and the Senior Subordinated Notes as applicable.  Notwithstanding clauses (3) and (4) of
Section 9.14(a) hereof,


 


(1)                                  any Restricted
Subsidiary may consolidate with or merge into or transfer all or part of its
properties and assets to the Borrower, and


 


(2)                                  the Borrower
may merge with an Affiliate of the Borrower, as the case may be, solely for the
purpose of reincorporating the Borrower in a State of the United States or any
state thereof, the District of Columbia or any territory thereof so long as the
amount of Indebtedness of the Borrower and its Restricted Subsidiaries is not
increased thereby.


 


(c)                                  Subject to
certain limitations described in this Agreement governing release of a
Guarantee upon the sale, disposition or transfer of a Guarantor, no Guarantor
shall, and the Borrower shall not permit any Guarantor to, consolidate or merge
with or into or wind up into (whether or not the Borrower or Guarantor is the
surviving corporation), or sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its properties or assets, in one or more
related transactions, to any Person unless:


 


(1)                                  (A) such Guarantor is
the surviving corporation or the Person formed by or surviving any such
consolidation or merger (if other than such Guarantor) or to which such sale, assignment,
transfer, lease, conveyance or other disposition will have been made is a
corporation, partnership, limited partnership, limited liability corporation or
trust organized or existing under the laws of the jurisdiction of organization
of such Guarantor, as the case may be, or the laws of the United States, any
state thereof, the District of Columbia, or any territory thereof (such
Guarantor or such Person, as the case may be, being herein called the “Successor Person”);


 


(B)                                the Successor Person, if
other than such Guarantor, expressly assumes all the obligations of such
Guarantor under this Agreement and such Guarantor’s related 


 


102

















 


Guarantee pursuant to
supplemental agreements or other documents or instruments in form reasonably
satisfactory to the Administrative Agent;


 


(C)                                immediately after such
transaction, no Default exists; and


 


(D)                               the Borrower shall have
delivered to the Administrative Agent an Officer’s Certificate stating that
such consolidation, merger or transfer and such supplemental agreements, if
any, comply with this Agreement; or


 


(2)                                  the transaction is made in
compliance with Section 9.8 hereof.


 


(d)                                 Subject to
certain limitations described in this Agreement, the Successor Person shall
succeed to, and be substituted for, such Guarantor under this Agreement and
such Guarantor’s Guarantee. Notwithstanding the foregoing, any Guarantor may (i) merge
into or transfer all or part of its properties and assets to another Guarantor
or the Borrower, (ii) merge with an Affiliate of the Borrower solely for
the purpose of reincorporating the Guarantor in the United States, any state
thereof, the District of Columbia or any territory thereof or (iii) convert
into a corporation, partnership, limited partnership, limited liability
corporation or trust organized or existing under the laws of the jurisdiction
of organization of such Guarantor.


 


(e)                                  Notwithstanding
anything to the contrary, the mergers contemplated by the Acquisition Agreement
shall be permitted without compliance with this Section 9.14.


 


9.15.                             Successor
Corporation Substituted.  Upon any
consolidation or merger, or any sale, assignment, transfer, lease, conveyance
or other disposition of all or substantially all of the assets of the Borrower
in accordance with Section 9.14 hereof, the successor corporation
formed by such consolidation or into or with which the Borrower is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition
is made shall succeed to, and be substituted for (so that from and after the
date of such consolidation, merger, sale, lease, conveyance or other disposition,
the provisions of this Agreement referring to the Borrower
shall refer instead to the successor corporation and not to the Borrower), and
may exercise every right and power of the Borrower under this Agreement with the same
effect as if such successor Person had been named as the Borrower herein; provided
that the predecessor Borrower shall not be relieved from the obligation to pay
the principal of and interest, if any, on the Loans except in the case of a
sale, assignment, transfer, conveyance or other disposition of all of the
Borrower’s assets that meets the requirements of Section 9.14
hereof.


 


9.16.                             [Reserved].


 


9.17.                             [Reserved].


 


9.18.                             Limitation on
Layering.


 


The Borrower shall not, and shall not permit any
Guarantor to, directly or indirectly, incur any Indebtedness (including
Acquired Indebtedness) that is subordinate in right of payment to any Senior
Indebtedness of the Borrower or such Guarantor, as the case may be, unless such
Indebtedness is either:


 


103

















 


(1)                                  pari passu in right of
payment with the Loans or such Guarantor’s Guarantee, as the case may be; or


 


(2)                                  expressly subordinated in
right of payment to the Loans or such Guarantor’s Guarantee, as the case may
be.


 


This agreement shall not treat (1) unsecured
Indebtedness as subordinated or junior to Secured Indebtedness merely because
it is unsecured or (2) Senior Indebtedness as subordinated or junior to
any other Senior Indebtedness merely because it has a junior priority with
respect to the same collateral.


 


SECTION 10.                                    [Reserved].


 


SECTION 11.                                    Defaults and Remedies


 


11.1.                             Events of
Default.


 


(I)                                              Any of the
following events referred to in any of Sections 11.1(a) through (i) shall
constitute an “Event of Default”:


 


(a)                                          default in payment when due
and payable, upon redemption, acceleration or otherwise, of principal of, or
premium, if any, on the Loans (whether or not such payment will be prohibited
by Section 14 hereto);


 


(b)                                         default for 30 days or more
in the payment when due of interest on or with respect to the Loans (whether or
not such payment will be prohibited by Section 14 hereto);


 


(c)                                  failure by the Borrower for
120 days after receipt of written notice given by the Administrative Agent or (x) prior
to the Interim Loan Conversion Date, the Required Holders of a majority of the
Required Debt or (y) on or after the Interim Loan Conversion Date, Holders
holding at least 30% in aggregate principal amount of the Required Debt then
outstanding, to comply with any of its obligations, covenants or agreements
contained in Section 9.1;


 


(d)                                         (1)  failure by the
Borrower or any Guarantor for 60 days after receipt of written notice given by
the Administrative Agent or (x) prior to the Interim Loan Conversion Date,
the Required Holders of a majority of the Required Debt or (y) on or after
the Interim Loan Conversion Date, Holders holding at least 30% in aggregate
principal amount of the Required Debt then outstanding, to comply with any of
its obligations, covenants or agreements (other than a default referred to in clauses
(a), (b) and (c) above) contained in this Agreement
or the Loans or (2) failure by the Borrower or any Guarantor in the due
performance of its obligation to issue Senior Subordinated Notes as contemplated
in Section 2.14 and such default shall continue unremedied for a
period of at least 30 days;


 


104

















 


(e)                                          default under any mortgage,
indenture or instrument under which there is issued or by which there is
secured or evidenced any Indebtedness for money borrowed by the Borrower or any
of its Restricted Subsidiaries or the payment of which is guaranteed by the
Borrower or any of its Restricted Subsidiaries, other than Indebtedness owed to
the Borrower or a Restricted Subsidiary, whether such Indebtedness or guarantee
now exists or is created after the issuance of the Loans, if both:


 


(i)                                     such default
either results from the failure to pay any principal of such Indebtedness at
its stated final maturity (after giving effect to any applicable grace periods)
or relates to an obligation other than the obligation to pay principal of any
such Indebtedness at its stated final maturity and results in the holder or
holders of such Indebtedness causing such Indebtedness to become due prior to
its stated maturity; and


 


(ii)                                  the principal
amount of such Indebtedness, together with the principal amount of any other
such Indebtedness in default for failure to pay principal at stated final
maturity (after giving effect to any applicable grace periods), or the maturity
of which has been so accelerated, aggregates $100.0 million or more at any one
time outstanding;


 


(f)                                            failure by the
Borrower or any Significant Subsidiary (or group of Restricted Subsidiaries
that together would constitute a Significant Subsidiary) to pay final
non-appealable judgments aggregating in excess of $100.0 million, which
final judgments remain unpaid, undischarged and unstayed for a period of more
than 60 days after such judgment becomes final, and in the event such judgment
is covered by insurance, an enforcement proceeding has been commenced by any
creditor upon such judgment or decree which is not promptly stayed;


 


(g)                                         the Borrower or any of its
Restricted Subsidiaries that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:


 


(i)                                     commences
proceedings to be adjudicated bankrupt or insolvent;


 


(ii)                                  consents to the
institution of bankruptcy or insolvency proceedings against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief under
applicable Bankruptcy Law;


 


(iii)                               consents to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator or other
similar official of it or for all or substantially all of its property;


 


(iv)                              makes a general
assignment for the benefit of its creditors; or


 


(v)                                 generally is
not paying its debts as they become due;


 


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(h)                                 a court of competent
jurisdiction enters an order or decree under any Bankruptcy Law that:


 


(i)                                     is for relief against the
Borrower or any of its Restricted Subsidiaries that is a Significant Subsidiary
or any group of Restricted Subsidiaries that, taken together, would constitute
a Significant Subsidiary, in a proceeding in which the Borrower or any such
Restricted Subsidiaries, that is a Significant Subsidiary
or any group of Restricted Subsidiaries that, taken together, would constitute
a Significant Subsidiary, is to be adjudicated bankrupt or insolvent;


 


(ii)                                  appoints a
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Borrower or any of its Restricted Subsidiaries that is a Significant Subsidiary
or any group of Restricted Subsidiaries that, taken together, would constitute
a Significant Subsidiary, or for all or substantially all of the property of
the Borrower or any of its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary; or


 


(iii)                               orders the
liquidation of the Borrower or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary;


 


and
the order or decree remains unstayed and in effect for 60 consecutive days; or


 


(i)                                             the Guarantee
of any Significant Subsidiary (or group of Restricted Subsidiaries that
together would constitute a Significant Subsidiary) shall for any reason cease
to be in full force and effect or be declared null and void or any responsible
officer of any Guarantor that is a Significant Subsidiary (or group of
Subsidiaries that together would constitute a Significant Subsidiary), as the
case may be, denies that it has any further liability under its Guarantee or
gives notice to such effect, other than by reason of the termination of this
Agreement or the release of any such Guarantee in accordance with this Agreement.


 


(II)                                In the event of
any Event of Default specified in clause (d) of Section 11.1(I) hereof,
such Event of Default and all consequences thereof (excluding any resulting
payment default, other than as a result of acceleration of the Senior
Subordinated Interim Loans) will be annulled, waived and rescinded,
automatically and without any action by the Administrative Agent or the
Required Holders holding at least a majority of the Required Debt, if within 20
days after such Event of Default arose:


 


(a)                                  the Indebtedness or
guarantee that is the basis for such Event of Default has been discharged; or


 


(b)                                 holders thereof have
rescinded or waived the acceleration, notice or action (as the case may be)
giving rise to such Event of Default; or


 


(c)                                  the default that is the
basis for such Event of Default has been cured.


 


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11.2.                             [Reserved].


 


11.3.                             [Reserved].


 


11.4.                             [Reserved].


 


11.5.                             [Reserved].


 


11.6.                             [Reserved].


 


11.7.                             [Reserved].


 


11.8.                             [Reserved].


 


11.9.                             [Reserved].


 


11.10.                       [Reserved].


 


11.11.                       [Reserved].


 


11.12.                       [Reserved].


 


11.13.                       [Reserved].


 


11.14.                       [Reserved].


 


11.15.                       [Reserved].


 


11.16.                       Remedies upon
Event of Default, Waivers of Past Defaults.


 


(a)                                  If any Event of
Default (other than an Event of Default specified in clause (g) or (h) of
Section 11.1(I) hereof) occurs and is continuing under this
Agreement, (x) prior to the Interim Loan Conversion Date, the
Administrative Agent may and, upon the written request of the Required Holders
of a majority of the Required Debt or (y) on or after the Interim Loan
Conversion Date, the Administrative Agent may, and upon the written request of
Required Holders holding at least 30% in aggregate principal amount of Required
Debt then outstanding shall declare the principal, premium, if any, interest
and any other monetary obligations on all the then outstanding Loans to be due
and payable immediately. Upon the effectiveness of such declaration, such
principal and interest shall be due and payable immediately; provided, however, that so long as any Indebtedness under
the Senior Secured Credit Agreement permitted to be incurred under this
Agreement shall be outstanding, no such acceleration shall be effective until
the earlier of:


 


(1)                                  acceleration of any such
Indebtedness under the Senior Secured Credit Agreement; or


 


(2)                                  five Business Days after the
giving of written notice of such acceleration to the Borrower and the
administrative agent under the Senior Secured Credit Agreement.


 


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Upon the effectiveness of such declaration,
such principal and interest shall be due and payable immediately.


 


Notwithstanding the foregoing, in the case of an
Event of Default arising under clause (g) or (h) of Section 11.1(I)
hereof, all outstanding Loans shall be due and payable immediately without further
action or notice.


 


(b)                                 The Required
Holders holding at least a majority of the Required Debt by notice to the
Administrative Agent may on behalf of all Lenders waive any existing Default
and its consequences hereunder, except a continuing Default in the payment of
the principal of, premium, if any, or interest on, any Loans (held by a
Non-Consenting Lender) and rescind any acceleration with respect to the Loans
and its consequences (provided such rescission would not conflict with
any judgment of a court of competent jurisdiction; and that the Required
Holders holding at least a majority of the Required Debt may rescind an
acceleration and its consequences, including any related payment default that
resulted from such acceleration.  Upon
any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this
Agreement; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.


 


11.17.                       Application of
Proceeds.  Any amount
received by the Administrative Agent from any Loan Party following any
acceleration of the Obligations under this Agreement or any Event of Default
with respect to the Borrower under Section 11.1(I)(g) or (h) shall
be applied:


 


(i)                                     first, to the
payment of all reasonable and documented costs and expenses incurred by the
Administrative Agent in connection with any collection or sale or otherwise in
connection with any Loan Document, including all court costs and the reasonable
fees and expenses of its agents and legal counsel, the repayment of all advances
made by the Administrative Agent hereunder or under any other Loan Document on
behalf of any Loan Party and any other reasonable and documented costs or
expenses incurred in connection with the exercise of any right or remedy
hereunder or under any other Loan Document;


 


(ii)                                  second, to the
Guaranteed Parties, an amount (x) equal to all Obligations owing to them on
the date of any distribution and such moneys shall be insufficient to pay such
amounts in full, then ratably (without priority of any one over any other) to
such Guaranteed Parties in proportion to the unpaid amounts thereof; and


 


(iii)                               third, any surplus
then remaining shall be paid to the applicable Loan Parties or their successors
or assigns or to whomsoever may be lawfully entitled to receive the same or as
a court of competent jurisdiction may direct.


 


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SECTION 12.                                    The
Agents


 


12.1.                             Appointment.


 


(a)                                          Each
Lender hereby irrevocably designates and appoints the Administrative Agent as
the agent of such Lender under this Agreement and the other Loan Documents and
irrevocably authorizes the Administrative Agent, in such capacity, to take such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and the
other Loan Documents, together with such other powers as are reasonably
incidental thereto.  The provisions of
this Section 12 (other than Section 12.1(c) with
respect to the Joint Lead Arrangers and Section 12.9 with respect
to the Borrower) are solely for the benefit of the Agents and the Lenders, and
the Borrower shall not have rights as third party beneficiary of any such
provision.  Notwithstanding any provision
to the contrary elsewhere in this Agreement, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein,
or any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.


 


(b)                                         [Reserved].


 


(c)                                          Each
of the Syndication Agent, Joint Lead Arrangers and Bookrunners, each in its
capacity as such, shall not have any obligations, duties or responsibilities under
this Agreement but shall be entitled to all benefits of this Section 12.


 


12.2.                             Delegation
of Duties.  The Administrative Agent
may each execute any of its duties under this Agreement and the other Loan
Documents by or through agents, sub-agents, employees or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to
such duties.  The Administrative Agent
shall not be responsible for the negligence or misconduct of any agents,
subagents or attorneys-in-fact selected by it in the absence of gross
negligence or willful misconduct (as determined in the final judgment of a
court of competent jurisdiction).


 


12.3.                             Exculpatory
Provisions.  No Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall
be (a) liable for any action lawfully taken or omitted to be taken by any
of them under or in connection with this Agreement or any other Loan Document
(except for its or such Person’s own gross negligence or willful misconduct, as
determined in the final judgment of a court of competent jurisdiction, in
connection with its duties expressly set forth herein) or (b) responsible
in any manner to any of the Lenders or any participant for any recitals,
statements, representations or warranties made by any of the Borrower, any
Guarantor, any other Loan Party or any officer thereof contained in this
Agreement or any other Loan Document or in any certificate, report, statement
or other document referred to or provided for in, or received by such Agent under
or in connection with, this Agreement or any other Loan Document or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document, or for any failure of the Borrower,
any Guarantor or any other Loan Party to perform its obligations hereunder or
thereunder.  No Agent 


 


109

















 


shall be under any obligation to any Lender to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of any Loan Party or any Affiliate thereof.


 


12.4.                             Reliance
by Agents.  The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or instruction
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including counsel to the Borrower), independent accountants and other experts
selected by the Administrative Agent. 
The Administrative Agent may deem and treat the Lender specified in the
Register with respect to any amount owing hereunder as the owner thereof for
all purposes unless a written notice of assignment, negotiation or transfer
thereof shall have been filed with the Administrative Agent.  The Administrative Agent shall be fully justified
in failing or refusing to take any action under this Agreement or any other
Loan Document unless it shall first receive such advice or concurrence of the
Required Lenders or Required Holders holding a majority of the Required Debt
(as applicable) as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense that may
be incurred by it by reason of taking or continuing to take any such
action.  The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement and the other Loan Documents in accordance with a request of the
Required Lenders or Required Holders holding a majority of the Required Debt
(as applicable), and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders
of the Loans; provided that the Administrative Agent shall not be required
to take any action that, in its opinion or in the opinion of its counsel, may
expose it to liability or that is contrary to any Loan Document or applicable
law.  For purposes of determining
compliance with the conditions specified in Sections 6 and 7 on
the Original Closing Date, each Lender that signed the Original Senior Subordinated
Loan Agreement shall be deemed to have consented to, approved or accepted or to
be satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender unless
the Administrative Agent shall have received notice from such Lender prior to
the Original Closing Date specifying its objection thereto.


 


12.5.                             Notice of Default.  The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received written notice
from a Lender or the Borrower referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a “notice of
default.”  In the event that the
Administrative Agent receives such a notice, it shall give notice thereof to
the Lenders.  The Administrative Agent
shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Required Lenders or Required Holders
holding a majority of the Required Debt (as applicable), 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 or Event of Default
as it shall deem advisable in the best interests of the Lenders except to the
extent that this Agreement requires that such action be taken only with the
approval 


 


110

















 


of the Required Lenders or Required Holders holding a majority of the
Required Debt (as applicable)or each of the Lenders, as applicable).


 


12.6.                             Non-Reliance on
Administrative Agent and Other Lenders. 
Each Lender expressly acknowledges that neither the Administrative Agent
nor any of its respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties to
it and that no act by the Administrative Agent hereinafter taken, including any
review of the affairs of the Borrower, any Guarantor or any other Loan Party,
shall be deemed to constitute any representation or warranty by the Administrative
Agent to any Lender.  Each Lender
represents to the Administrative Agent that it has, independently and without
reliance upon the Administrative Agent or any other Lender, and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, operations, property, financial and
other condition and creditworthiness of the Borrower, Guarantor and other Loan
Party and made its own decision to make its Loans hereunder and enter into this
Agreement.  Each Lender also represents
that it will, independently and without reliance upon the Administrative Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement
and the other Loan Documents, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property, financial
and other condition and creditworthiness of the Borrower, any Guarantor and any
other Loan Party.  Except for notices,
reports and other documents expressly required to be furnished to the Lenders
by the Administrative Agent hereunder, the Administrative Agent shall not have
any duty or responsibility to provide any Lender with any credit or other
information concerning the business, assets, operations, properties, financial
condition, prospects or creditworthiness of the Borrower, any Guarantor or any
other Loan Party that may come into the possession of the Administrative Agent
any of their respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates.


 


12.7.                             Indemnification.  The Lenders agree to indemnify each Agent in
its capacity as such (to the extent not reimbursed by the Loan Parties and
without limiting the obligation of the Loan Parties to do so), ratably
according to their respective portions of the Total Credit Exposure in effect
on the date on which indemnification is sought (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and the
Loans shall have been paid in full, ratably in accordance with their respective
portions of the Total Credit Exposure in effect immediately prior to such date),
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever that may at any time (including at any time following the
payment of the Loans) be imposed on, incurred by or asserted against any Agent
in any way relating to or arising out of the Commitments, this Agreement, any
of the other Loan Documents or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Administrative Agent under or in connection with
any of the foregoing, provided that no Lender shall be liable to an
Agent for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Agent’s gross negligence or willful misconduct as
determined by a final judgment of a court of competent jurisdiction; provided,
further, that no action taken by the Administrative Agent in accordance
with the directions of the Required 


 


111

















 


Lenders or Required Holders holding a majority of the Required Debt (as
applicable) (or such other number or percentage of the Lenders or Required
Holders as shall be required by the Loan Documents) shall be deemed to
constitute gross negligence or willful misconduct for purposes of this Section 12.7.  In the case of any investigation, litigation
or proceeding giving rise to any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever that may at any time occur (including at any time following the
payment of the Loans), this Section 12.7 applies whether any such
investigation, litigation or proceeding is brought by any Lender or any other
Person.  Without limitation of the
foregoing, each Lender shall reimburse each Agent upon demand for its ratable
share of any costs or out-of-pocket expenses (including attorneys’ fees)
incurred by such Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice rendered in
respect of rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein, to the extent
that such Agent is not reimbursed for such expenses by or on behalf of the
Borrower, provided that such reimbursement by the Lenders shall not
affect the Borrower’s continuing reimbursement obligations with respect
thereto.  If any indemnity furnished to
any Agent for any purpose shall, in the opinion of such Agent, be insufficient
or become impaired, such Agent may call for additional indemnity and cease, or
not commence, to do the acts indemnified against until such additional
indemnity is furnished; provided, in no event shall this sentence
require any Lender to indemnify any Agent against any liability, obligation,
loss, damage, penalty, action, judgment, suit, cost, expense or disbursement in
excess of such Lender’s pro rata
portion thereof; and provided,  further, this sentence shall not
be deemed to require any Lender to indemnify any Agent against any liability,
obligation, loss, damage, penalty, action, judgment, suit, cost, expense or
disbursement resulting from such Agent’s gross negligence or willful
misconduct.  The agreements in this Section 12.7
shall survive the payment of the Loans and all other amounts payable hereunder.


 


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


 


12.9.                             Successor Agents.  The Administrative Agent may at any time give
notice of its resignation to the Lenders and the Borrower.  Upon receipt of any such notice of resignation,
the Required Lenders shall have the right, subject to the consent of the
Borrower (not to be unreasonably withheld or delayed) so long as no Default
under Section 11.1 is continuing, to appoint a successor, which
shall be a bank with an office in the United States, or an Affiliate of any
such bank with an office in the United States. 
If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring Administrative
Agent may on behalf of the Lenders, appoint a successor Administrative Agent
meeting the qualifications set forth above. 
Upon the acceptance of a successor’s appointment as the Administrative
Agent hereunder, and upon the transfer
by the retiring (or retired) Agent to the successor Agent 


 


112

















 


of
all sums, together with all records and other documents necessary or appropriate
in connection with the performance of the duties of the successor Agent under
the Loan Documents, such successor shall succeed to and become vested
with all of the rights, powers, privileges and duties of the retiring (or
retired) Agent, and the retiring Agent shall be discharged from all of its
duties and obligations hereunder or under the other Loan Documents (if not
already discharged therefrom as provided above in this Section). The fees
payable by the Borrower (following the effectiveness of such appointment) to
such Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor. After the retiring
Agent’s resignation hereunder and under the other Loan Documents, the provisions
of this Section 12 (including 12.7) and Section 13.5
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative
Agent was acting as an Administrative Agent.


 


12.10.                       Withholding Tax.  To the extent required by any applicable law,
the Administrative Agent may withhold from any payment to any Lender an amount
equivalent to any applicable withholding tax. 
If the Internal Revenue Service or any authority of the United States or
other jurisdiction asserts a claim that the Administrative Agent did not
properly withhold tax from amounts paid to or for the account of any Lender for
any reason (including, without limitation, because the appropriate form was not
delivered, was not properly executed, or because such Lender failed to notify
the Administrative Agent of a change in circumstances that rendered the
exemption from, or reduction of, withholding tax ineffective), such Lender
shall indemnify the Administrative Agent (to the extent that the Administrative
Agent has not already been reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so) fully for all amounts paid, directly or
indirectly, by the Administrative Agent as tax or otherwise, including
penalties and interest, together with all expenses incurred, including legal
expenses, allocated staff costs and any out of pocket expenses.


 


12.11.                       [Reserved].


 


12.12.                       Agents under Guarantee.  Each Guaranteed Party hereby further authorizes
the Administrative Agent, on behalf of and for the benefit of the Guaranteed
Parties, to be the agent for and representative of the Guaranteed Parties with
respect to the Guarantees.  Subject to Section 13.1,
without further written consent or authorization from any Guaranteed Party, the
Administrative Agent may execute any documents or instruments necessary to in
connection with a sale or disposition of assets permitted by this Agreement,
release any Guarantor from the Guarantee, or with respect to which Required Lenders
(or such other Lenders as may be required to give such consent under Section 13.1)
have otherwise consented.


 


12.13.                       Right to Enforce Guarantee.  Anything contained in any of the Loan
Documents to the contrary notwithstanding, the Borrower, the Agents and each
Guaranteed Party hereby agree that no Guaranteed Party shall have any right
individually to enforce the Guarantee, it being understood and agreed that all
powers, rights and remedies hereunder may be exercised solely by the
Administrative Agent, on behalf of the Guaranteed Parties in accordance with
the terms hereof and all powers, rights and remedies under the Guarantee may be
exercised solely by the Administrative Agent, on behalf of the Guaranteed
Parties.


 


113

















 


SECTION 13.                                    Miscellaneous


 


13.1.                             Amendments, Waivers and
Releases.  (a)Neither this Agreement
nor any other Loan Document, nor any terms hereof or thereof, may be amended,
supplemented or modified except in accordance with the provisions of this Section 13.1.  The Required Holders holding a majority of
the Required Debt may, or, with the written consent of the Required Holders
holding a majority of the Required Debt, the Administrative Agent may, from
time to time, (a) enter into with the relevant Loan Party or Loan Parties
written amendments, supplements or modifications hereto and to the other Loan
Documents for the purpose of adding any provisions to this Agreement or the
other Loan Documents or changing in any manner the rights of the Lenders or of
the Loan Parties hereunder or thereunder, (b) waive in writing, on such
terms and conditions as the Required Holders holding a majority of the Required
Debt or the Administrative Agent, as the case may be, may specify in such
instrument, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its consequences or (c) consent to amendments,
supplements or modifications to the form of the Senior Subordinated Refinancing
Indenture; provided, however, that each such waiver and
each such amendment, supplement or modification shall be effective only in the
specific instance and for the specific purpose for which given and provided,
further, that no such waiver and no such amendment, supplement or
modification shall (i) forgive or reduce any portion of any Loan or extend
the final scheduled maturity date of any Loan or reduce the stated rate (it
being understood that any change to the definition of Consolidated Leverage
Ratio or Fixed Charge Coverage Ratio or in the component definitions thereof
shall not constitute a reduction in the rate and only the consent of the
Required Holders holding a majority of the Required Debt shall be necessary to
waive any obligation of the Borrower to pay interest at the “default rate” or
amend Section 2.8(c)), or forgive any portion, or extend the date
for the payment, of any interest or fee payable hereunder (other than as a result
of waiving the applicability of any post-default increase in interest rates),
or extend the final expiration date of any Lender’s Commitment or increase the
aggregate amount of the Commitments of any Lender, or amend or modify any provisions
of Section 5.3(a) (with respect to the ratable allocation of
any payments only) and 13.8(a) and 13.20, or make any Loan,
interest, Fee or other amount payable in any currency other than expressly
provided herein, in each case without the written consent of each Lender
directly and adversely affected thereby (or,
in the case of any Fees, the written consent of the Administrative Agent),
or (ii) amend, modify or waive any provision of this Section 13.1
or reduce the percentages specified in the definitions of the terms “Required
Holders,” consent to the assignment or transfer by the Borrower of its rights
and obligations under any Loan Document to which it is a party (except as
permitted pursuant to Section 9.14) or alter the order of application
set forth in Section 11.17, in each case without the written
consent of each Lender directly and adversely affected thereby, or (iii) amend,
modify or waive any provision of Section 12 without the written
consent of the then-current Administrative Agent in a manner that directly and
adversely affects such Person, (iv) release all or substantially all of
the Guarantors under the Guarantees (except as expressly permitted by the
Guarantees or this Agreement) except with the prior written consent of each
Lender or (v) amend, modify or waive any provision of Section 2.14
without the written consent of each Lender directly and adversely affected
thereby or (vi) amend or modify any provision of the Senior Subordinated
Refinancing Indenture that requires (or would, if any Senior Subordinated Notes
were outstanding, require) the approval of all holders of Senior Subordinated
Notes, without the written consent of each Lender directly and adversely
affected thereby.  Any 


 


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such waiver and any such amendment, supplement or modification shall
apply equally to each of the affected Lenders and shall be binding upon the
Borrower, such Lenders, the Administrative Agent and all future holders of the
affected Loans.  In the case of any
waiver, the Borrower, the Lenders and the Administrative Agent shall be
restored to their former positions and rights hereunder and under the other
Loan Documents, and any Default or Event of Default waived shall be deemed to
be cured and not continuing, it being understood that no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon.  In connection
with the foregoing provisions, the Administrative Agent may, but shall have no
obligations to, with the concurrence of any Lender, execute amendments, modifications,
waivers or consents on behalf of such Lender.


 


(a)                                  Notwithstanding
the foregoing, without notice to or the consent of any Lenders and without any
further action necessary by the parties hereto, effective as of the Initial
Loan Maturity Date, in the event of any inconsistency between the terms
contained in Sections 8, 9 and 11 of this Agreement and
the corresponding terms contained in the Senior Subordinated Refinancing
Indenture, such provisions of this Agreement shall be replaced with corresponding
provisions of the Senior Subordinated Refinancing Indenture, and, to the extent
necessary to give effect to the foregoing, each defined term used in the
sections of the Senior Subordinated Refinancing Indenture shall have the
meaning set forth in the Senior Subordinated Refinancing Indenture, subject to
the terms of Section 1.2(h), as applicable.  The applicable provisions of the Senior
Subordinated Refinancing Indenture as described in Exhibit B shall
be deemed incorporated and set forth in this Agreement to the extent necessary
to give effect to the foregoing.  In
furtherance of the foregoing, the Administrative Agent will (and the Lenders
hereby authorize and direct the Administrative Agent to), at the request of the
Borrower, enter into such technical amendments and other modifications to this
Agreement as are reasonably necessary to effect the foregoing.


 


(c)                                  Notwithstanding
anything to the contrary herein, no Defaulting Lender shall have any right to approve
or disapprove any amendment, waiver or consent hereunder, except that the Commitment
of such Lender may not be increased or extended without the consent of such
Lender (it being understood that any Commitments or Loans held or deemed held
by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder
requiring any consent of the Lenders).


 


(d)                                 The Lenders hereby
irrevocably agree that the Guarantors shall be released from the Guarantees and
no further action by such Guarantor, the Borrower or the Administrative Agent
is required for the release of such Guarantor’s Guarantee, upon: (1)(A) 
any sale, exchange or transfer (by merger or otherwise) of the Capital Stock of
such Guarantor (including any sale, exchange or transfer), after which the
applicable Guarantor is no longer a Restricted Subsidiary or all or substantially
all the assets of such Guarantor which sale, exchange or transfer is made in
compliance with the applicable provisions of this Agreement; (B) the
release or discharge of the guarantee by such Guarantor of the Senior Secured
Credit Agreement or such other guarantee that resulted in the creation of such
Guarantee, except a discharge or release by or as a result of payment under
such guarantee; (C) the designation of any Restricted Subsidiary that is a
Guarantor as an Unrestricted Subsidiary in compliance with Section 9.5
hereof and the definition of “Unrestricted Subsidiary” hereunder; or (D) the
Borrower’s obligations under this Agreement 


 


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being
discharged in accordance with the terms of this Agreement; and (2) such
Guarantor delivering to the Administrative Agent an Officer’s Certificate and
an Opinion of Counsel, each stating that all conditions precedent provided for in
this Agreement relating to such transaction have been complied with.


 


(e)                                  The Lenders hereby
authorize the Administrative Agent to execute and deliver any instruments,
documents, and agreements necessary or desirable to evidence and confirm the
release of any Guarantor pursuant to the foregoing provisions of this paragraph,
all without the further consent or joinder of any Lender.


 


(f)                                    Notwithstanding
anything herein to the contrary, (i) if any amendment, waiver or other
modification would by its terms disproportionately affect the holders of any
one or more classes of Required Debt, such amendment, waiver or other
modification shall also require the consent of the holders of at least a
majority in aggregate principal amount of the then outstanding amount of such
class or classes of Required Debt, voting as a single class and (ii) if
any amendment, waiver or other modification would only affect the holders of
any one class of Required Debt, consent of the respective holders, if
applicable, holding at least a majority in aggregate principal amount of the
then outstanding amount of such class of Required Debt, if any are outstanding,
and not the consent of the Required Holders of a majority of the Required Debt,
as the case may be, acting as a single class, shall be required


 


13.2.                        Notices.  Unless otherwise expressly provided herein,
all notices and other communications provided for hereunder or under any other
Loan Document shall be in writing (including by facsimile transmission).  All such written notices shall be mailed,
faxed or delivered to the applicable address, facsimile number or electronic
mail address, and all notices and other communications expressly permitted
hereunder to be given by telephone shall be made to the applicable telephone
number, as follows:


 


(a)                                  if to the Borrower or
the Administrative Agent, to the address, facsimile number, electronic mail
address or telephone number specified for such Person on Schedule 13.2
or to such other address, facsimile number, electronic mail address or telephone
number as shall be designated by such party in a notice to the other parties;
and


 


(b)                                 if to any Lender, to
the address, facsimile number, electronic mail address or telephone number
specified in its Administrative Questionnaire or to such other address,
facsimile number, electronic mail address or telephone number as shall be designated
by such party in a notice to the Borrower and the Administrative Agent.


 


All such notices and other communications
shall be deemed to be given or made upon the earlier to occur of (i) actual
receipt by the relevant party hereto and (ii) (A) if delivered by
hand or by courier, when signed for by or on behalf of the relevant party
hereto; (B) if delivered by mail, three (3) Business Days after
deposit in the mails, postage prepaid; (C) if delivered by facsimile, when
sent and receipt has been confirmed by telephone; and (D) if delivered by
electronic mail, when delivered; provided that notices and other
communications to the Administrative Agent or the Lenders pursuant to Sections
2.3, 2.6, 2.9 and 5.1 shall not be effective until
received.


 


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


 


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


 


13.5.                             Payment of Expenses;
Indemnification.  The Borrower agrees
(a) to pay or reimburse the Agents for all their reasonable out-of-pocket
costs and expenses incurred in connection with the development, preparation and
execution and delivery of, and any amendment, supplement or modification to,
this Agreement and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of
the transactions contemplated hereby and thereby, including the reasonable
fees, disbursements and other charges of Cahill Gordon & Reindel LLP
and one counsel in each relevant local jurisdiction, (b) to pay or
reimburse each Agent for all its reasonable out-of-pocket costs and expenses
incurred in connection with the enforcement or preservation of any rights under
this Agreement, the other Loan Documents and any other documents, including the
reasonable fees, disbursements and other charges of Cahill Gordon & Reindel
LLP,
as counsel to the Agents, or such other counsel retained with the Borrower’s
consent (such consent not to be unreasonably withheld), (c) to pay,
indemnify, and hold harmless each Lender and Agent from, any and all recording
and filing fees and (d) to pay, indemnify, and hold harmless each Lender
and Agent and their respective Affiliates, directors, officers, employees,
trustees, investment advisors and agents from and against any and all other
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever, including reasonable and documented fees, disbursements and other
charges of one primary counsel and one local counsel in each relevant jurisdiction
to such indemnified Persons (unless there is an actual or perceived conflict of
interest or the availability of different claims or defenses in which case each
such Person may retain its own counsel), related to the Transactions
(including, without limitation, the Merger) or, with respect to the execution,
delivery, enforcement, performance and administration of this Agreement, the
other Loan Documents and any other documents, including, without limitation,
any of the foregoing relating to the violation of, noncompliance with or
liability under, any Environmental Law (other than by such indemnified person
or any of its Affiliates, officers, directors, employees or agents) or to any actual
or alleged presence, release or threatened release of Hazardous Materials
involving or attributable to the operations of the Borrower, any of its
Subsidiaries or any of the Real Estate (all the foregoing in this clause (d),
collectively, the “indemnified liabilities”),
provided that the Borrower shall have no obligation hereunder to any
Agent or any Lender or any of their respective Affiliates, officers, directors,
employees or agents with respect to indemnified liabilities to the extent it
has been determined by a final non-appealable judgment of a court of competent jurisdiction
to have resulted from (i) the gross negligence, bad faith or willful
misconduct of the party 


 


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to be indemnified or any of its Affiliates, officers, directors,
employees or agents, or (ii) any material breach of any Loan Document by
the party to be indemnified.  No Person
entitled to indemnification under clause (d) of this Section 13.5
shall be liable for any damages arising from the use by others of any
information or other materials obtained through IntraLinks or other similar
information transmission systems in connection with this Agreement, nor shall
any such Person have any liability for any special, punitive, indirect or consequential
damages relating to this Agreement or any other Loan Document or arising out of
its activities in connection herewith or therewith (whether before or after the
Original Closing Date).  In the case of
an investigation, litigation or other proceeding to which the indemnity in this
Section 13.5 applies, such indemnity shall be effective whether or
not such investigation, litigation or proceeding is brought by any Loan Party,
its directors, stockholders or creditors or any other Person, whether or not
any Person entitled to indemnification under clause (d) of this Section 13.5
is otherwise a party thereto.  All
amounts payable under this Section 13.5 shall be paid within ten
Business Days of receipt by the Borrower of an invoice relating thereto setting
forth such expense in reasonable retail. 
The agreements in this Section 13.5 shall survive repayment
of the Loans and all other amounts payable hereunder.


 


13.6.                        Successors
and Assigns; Participations and Assignments.


 


(a)                                  The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted
hereby, except that (i) except as expressly permitted by Section 10.3,
the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of the Administrative
Agent and each Lender (and any attempted assignment or transfer by the Borrower
without such consent shall be null and void) and (ii) no Lender may assign
or otherwise transfer its rights or obligations hereunder except in accordance
with this Section 13.6. 
Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants (to the extent provided
in clause (c) of this Section 13.6) and, to the extent
expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders and each other Person entitled to
indemnification under Section 13.5) any legal or equitable right, remedy
or claim under or by reason of this Agreement.


 


(b)                                 (i) 
Subject to the conditions set forth in clause (b)(ii) below, any
Lender may at any time assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitments and the Loans at the time owing to it) with the prior written
consent (such consent not be unreasonably withheld or delayed; it being
understood that, without limitation, the Borrower shall have the right to
withhold or delay its consent to any assignment if, in order for such
assignment to comply with applicable law, the Borrower would be required to
obtain the consent of, or make any filing or registration with, any
Governmental Authority) of:


 


(A)                              the
Borrower, provided that no consent of the Borrower shall be required for
an assignment to (1) a Lender, an Affiliate of a Lender, an Approved Fund,
(2) if an Event of Default under Section 11.1(I)(a), (b),
(g) or (h) has occurred and is continuing, any other
assignee or (3) to a Person not more than 14 days following the Original 


 


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Closing Date to the extent the
Borrower has previously consented to an allocation of Loans of Commitments in
an amount greater than or equal to the amount assigned to a Person in such time
period; and


 


(B)                                the Administrative
Agent (which consent shall not be unreasonably withheld or delayed), provided
that no consent of the Administrative Agent shall be required for an assignment
of any Loan to a Lender, an Affiliate of a Lender or an Approved Fund.


 


Notwithstanding the foregoing, no such
assignment shall be made to a natural person.


 


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


 


(A)                              except in the case of an
assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an
assignment of the entire remaining amount of the assigning Lender’s Commitment
or Loans, the amount of the Commitment or Loans of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $1,000,000 in excess thereof or, unless each of
the Borrower and the Administrative Agent otherwise consents (which consents
shall not be unreasonably withheld or delayed), provided that no such
consent of the Borrower shall be required if an Event of Default under Section 11.1(I)(a),
(b), (g) or (h) has occurred and is continuing; provided
further that contemporaneous assignments to a single assignee made by Affiliates
of Lenders and related Approved Funds shall be aggregated for purposes of meeting
the minimum assignment amount requirements stated above;


 


(B)                                each partial assignment
shall be made as an assignment of a proportionate part of all the assigning
Lender’s rights and obligations under this Agreement;


 


(C)                                The parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance via an electronic settlement system reasonably acceptable to the
Administrative Agent, together with a processing and recordation fee in the
amount of $3,500 via an electronic settlement system acceptable to the Administrative
Agent; provided that the Administrative Agent may, in its sole
discretion, elect to waive such processing and recordation fee in the case of
any assignment;


 


(D)                               the assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
administrative questionnaire in a form approved by the Administrative Agent
(the “Administrative Questionnaire”) and
applicable tax form; and


 


(E)                                 prior
to the Interim Loan Conversion Date, no Committed Lender shall assign to
another Lender (other than another Committed Lender) any Loans without the Borrower’s
prior consent if, after giving effect to such assignment, the Committed Lenders
would hold, in the aggregate, less than 51% of the aggregate principal amount
of outstanding Loans.


 


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(iii)                               Subject
to acceptance and recording thereof pursuant to clause (b)(iv) of
this Section 13.6, from and after the effective date specified in
each Assignment and Acceptance, the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.10, 2.11, 5.4 and 13.5).  Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this Section 13.6
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with clause (c) of
this Section 13.6.


 


(iv)                              The
Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at the Administrative Agent’s Office a copy of each Assignment
and Acceptance delivered to it and a register for the recordation of the names
and addresses of the Lenders, the Commitments of, and principal amount of the
Loans owing to each Lender pursuant to the terms hereof from time to time (the “Register”).  Further,
each Register shall contain the name and address of the Administrative Agent
and the lending office through which each such Person acts under this
Agreement.  The entries in the Register
shall be conclusive, and the Borrower, the Administrative Agent and the Lenders
shall treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. 
The Register shall be available for inspection by the Borrower and any
Lender, at any reasonable time and from time to time upon reasonable prior notice.


 


(v)                                 Upon
its receipt of a duly completed Assignment and Acceptance executed by an
assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire
and applicable tax forms(unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in clause (b) of
this Section 13.6 and any written consent to such assignment
required by clause (b) of this Section 13.6, the
Administrative Agent shall promptly accept such Assignment and Acceptance and
record the information contained therein in the Register.


 


(c)                                  (i) 
Any Lender may, without the consent of the Borrower, or the Administrative
Agent, sell participations to one or more banks or other entities (each, a “Participant”) in all or a portion of such Lender’s rights
and obligations under this Agreement (including all or a portion of its
Commitments and the Loans owing to it), provided that (A) such
Lender’s obligations under this Agreement shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, and (C) 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 this
Agreement.  Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement or any
other Loan Document, provided that such agreement or instrument may
provide that such Lender will not,


 


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without the consent of the Participant, agree
to any amendment, modification or waiver described in clause (i) of
the proviso to Section 13.1. 
that
affects such Participant.  Subject
to clause (c)(ii) of this Section 13.6, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections
2.10, 2.11 and 5.4 to the same extent as if it were a Lender
and provided that such Participant agrees to be subject to the requirements
of those Sections as though it were a Lender and had acquired its interest by
assignment pursuant to clause (b) of this Section 13.6.  To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 13.8(b) as
though it were a Lender, provided such Participant agrees to be subject
to Section 13.8(a) as though it were a Lender.


 


(ii)                                          A
Participant shall not be entitled to receive any greater payment under Section 2.10,
2.11 or 5.4 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 (which consent shall not be unreasonably withheld).  Each Lender that sells a participation shall,
acting solely for this purpose as an agent of the Borrower, maintain a register
on which it enters the name and address of each participant and the principal
amounts of each participant’s interest in the Loans or other obligations under
this Agreement (the “Participant Register”).  The entries in the Participant Register shall
be conclusive, absent manifest error, and such Lender shall treat each Person
whose name is recorded in the Participant Register as the owner of such Loan or
other obligation hereunder as the owner thereof for all purposes of this
Agreement notwithstanding any notice to the contrary.  Any such Participant Register shall be
available for inspection by the Administrative Agent at any reasonable time and
from time to time upon reasonable prior notice.


 


(d)                                         Any
Lender may, without the consent of the Borrower or the Administrative Agent, at
any time pledge or assign a security interest in all or any portion of its
rights under this Agreement to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section 13.6
shall not apply to any such pledge or assignment of a security interest, provided
that no such pledge or assignment of a security interest shall release a Lender
from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto. 
The Borrower hereby agrees that, upon request of any Lender at any time
and from time to time after the Borrower has made its initial borrowing
hereunder, the Borrower shall provide to such Lender, at the Borrower’s own
expense, a promissory note, substantially in the form of Exhibit H,
evidencing the Loans, owing to such Lender.


 


(e)                                          Subject
to Section 13.16, the Borrower authorizes each Lender to disclose
to any Participant, secured creditor of such Lender or assignee (each, a “Transferee”) and any prospective Transferee any and all
financial information in such Lender’s possession concerning the Borrower and
its Affiliates that has been delivered to such Lender by or on behalf of the
Borrower and its Affiliates pursuant to this Agreement or that has been
delivered to such Lender by or on behalf of the Borrower and its Affiliates in
connection with such Lender’s credit evaluation of the Borrower and its
Affiliates prior to becoming a party to this Agreement.


 


(f)                                            The
words “execution,” “signed,” “signature,” and words of like import in any
Assignment and Acceptance shall be deemed to include electronic signatures or
the 


 


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keeping of records in electronic form, each
of which shall be of the same legal effect, validity or enforceability as a
manually executed signature or the use of a paper-based recordkeeping system,
as the case may be, to the extent and as provided for in any applicable law,
including the Federal Electronic Signatures in Global and National Commerce
Act, the New York State Electronic Signatures and Records Act, or any other
similar state laws based on the Uniform Electronic Transactions Act.


 


(g)                                         SPV
Lender.  Notwithstanding anything to
the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle (a “SPV”), identified as such in writing from time to time by
the Granting Lender to the Administrative Agent and the Borrower, the option to
provide to the Borrower all or any part of any Loan that such Granting Lender
would otherwise be obligated to make the Borrower pursuant to this Agreement; provided
that (i) nothing herein shall constitute a commitment by any SPV to make
any Loan and (ii) if an SPV elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Granting Lender
shall be obligated to make such Loan pursuant to the terms hereof. The making
of a Loan by an SPV hereunder shall utilize the Commitment of the Granting
Lender to the same extent, and as if, such Loan were made by such Granting
Lender. Each party hereto hereby agrees that no SPV shall be liable for any
indemnity or similar payment obligation under this Agreement (all liability for
which shall remain with the Granting Lender). In furtherance of the foregoing,
each party hereto hereby agrees (which agreement shall survive the termination
of this Agreement) that, prior to the date that is one year and one day after
the payment in full of all outstanding commercial paper or other senior
indebtedness of any SPV, it shall not institute against, or join any other
person in instituting against, such SPV any bankruptcy, reorganization,
arrangement, Insolvency or Liquidation Proceedings under the laws of the United
States or any State thereof. In addition, notwithstanding anything to the
contrary contained in this Section 13.6, any SPV may (i) with
notice to, but without the prior written consent of, the Borrower and the
Administrative Agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Loans to the Granting Lender or to any
financial institutions (consented to by the Borrower and Administrative Agent)
providing liquidity and/or credit support to or for the account of such SPV to
support the funding or maintenance of Loans and (ii) disclose on a
confidential basis any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of any surety, guarantee or
credit or liquidity enhancement to such SPV. This Section 13.6(g) may
not be amended without the written consent of the SPV. Notwithstanding anything
to the contrary in this Agreement, (x) no SPV shall be entitled to any
greater rights under Sections 2.10, 2.11 and 5.4 than its
Granting Lender would have been entitled to absent the use of such SPV and (y) each
SPV agrees to be subject to the requirements of Sections 2.10, 2.11
and 5.4 as though it were a Lender and has acquired its interest by
assignment pursuant to clause (b) of this Section 13.6.


 


13.7.                             Replacements
of Lenders Under Certain Circumstances.


 


(a)                                          The
Borrower shall be permitted to replace any Lender that (a) requests
reimbursement for amounts owing pursuant to Section 2.10, 2.11
or 5.4, (b) is affected in the manner described in Section 2.10(a)(iii) and
as a result thereof any of the actions described in such Section is
required to be taken or (c) becomes a Defaulting Lender, with a
replacement 


 


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bank or other financial institution, provided
that (i) such replacement does not conflict with any Requirement of Law, (ii) no
Event of Default under Section 11.1 or 11.5 shall have
occurred and be continuing at the time of such replacement, (iii) the
Borrower shall repay (or the replacement bank or institution shall purchase, at
par) all Loans and other amounts (other than any disputed amounts), pursuant to
Section 2.10, 2.11 or 5.4, as the case may be) owing
to such replaced Lender prior to the date of replacement, (iv) the
replacement bank or institution, if not already a Lender, and the terms and
conditions of such replacement, shall be reasonably satisfactory to the
Administrative Agent, (v) the replaced Lender shall be obligated to make
such replacement in accordance with the provisions of Section 13.6
(provided that the Borrower shall be obligated to pay the registration
and processing fee referred to therein) and (vi) any such replacement
shall not be deemed to be a waiver of any rights that the Borrower, the
Administrative Agent or any other Lender shall have against the replaced
Lender.


 


(b)                                         If
any Lender (such Lender, a “Non-Consenting Lender”)
has failed to consent to a proposed amendment, waiver, discharge or termination
that pursuant to the terms of Section 13.1 requires the consent of
all of the Lenders affected and with respect to which the Required Lenders
shall have granted their consent, then provided no Event of Default then exists,
the Borrower shall have the right (unless such Non-Consenting Lender grants
such consent) to replace such Non-Consenting Lender by requiring such
Non-Consenting Lender to assign its Loans, and its Commitments hereunder to one
or more assignees reasonably acceptable to the Administrative Agent, provided
that (a) all Obligations of the Borrower owing to such Non-Consenting
Lender being replaced shall be paid in full to such Non-Consenting Lender
concurrently with such assignment, and (b) the replacement Lender shall
purchase the foregoing by paying to such Non-Consenting Lender a price equal to
the principal amount thereof plus accrued and unpaid interest thereon and (c) the
Borrower shall pay to such Non-Consenting Lender the amount, if any, owing to
such Lender pursuant to Section 5.1(b).  In connection with any such assignment, the
Borrower, Administrative Agent, such Non-Consenting Lender and the replacement
Lender shall otherwise comply with Section 13.6.


 


13.8.                             Adjustments;
Set-off.


 


(a)                                          If
any Lender (a “benefited Lender”) shall at any
time receive any payment of all or part of its Loans, or interest thereon, or
receive any collateral in respect thereof (whether voluntarily or involuntarily,
by set-off, pursuant to events or proceedings of the nature referred to in Section 11.1(I)(g) or
(h), or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender’s Loans, or interest thereon, such benefited Lender shall purchase for
cash from the other Lenders a participating interest in such portion of each
such other Lender’s Loan, or shall provide such other Lenders with the benefits
of any such collateral, or the proceeds thereof, as shall be necessary to cause
such benefited Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; provided, however,
that if all or any portion of such excess payment or benefits is thereafter recovered
from such benefited Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest.


 


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(b)                                         After
the occurrence and during the continuance of an Event of Default, in addition
to any rights and remedies of the Lenders provided by law, each Lender shall
have the right, without prior notice to the Borrower, any such notice being
expressly waived by the Borrower to the extent permitted by applicable law,
upon any amount becoming due and payable by the Borrower hereunder (whether at
the stated maturity, by acceleration or otherwise) to set-off and appropriate
and apply against such amount any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or
the account of the Borrower (excluding, for the avoidance of doubt, any Settlement
Assets except to effect Settlement Payments such Lender is obligated to make to
a third party in respect of such Settlement Assets or as otherwise agreed in
writing between the Borrower and such Lender). 
Each Lender agrees promptly to notify the Borrower and the Administrative
Agent after any such set-off and application made by such Lender, provided
that the failure to give such notice shall not affect the validity of such
set-off and application.


 


13.9.                             Counterparts.  This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts
(including by facsimile or other electronic transmission), and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.  A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.


 


13.10.                       Severability.  Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.


 


13.11.                       Integration.  This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Borrower, the Administrative
Agent nor any Lender relative to subject matter hereof not expressly set forth
or referred to herein or in the other Loan Documents.  For the avoidance of doubt, the Fee Letter
and the Engagement Letter remain in full force and effect in accordance with
their terms.


 


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


 


13.13.                       Submission
to Jurisdiction; Waivers.  The
Borrower irrevocably and unconditionally:


 


(a)                                          submits
for itself and its property in any legal action or proceeding relating to this
Agreement and the other Loan Documents to which it is a party, or for recognition
and enforcement of any judgment in respect thereof, to the non-exclusive
general 


 


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jurisdiction of the courts of the State of
New York, the courts of the United States of America for the Southern District
of New York and appellate courts from any thereof;


 


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


 


(c)                                          agrees
that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to such Person at its address set forth
on Schedule 13.2 or at such other address of which the Administrative
Agent shall have been notified pursuant to Section 13.2;


 


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


 


(e)                                          waives,
to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section 13.13
any special, exemplary, punitive or consequential damages.


 


13.14.                       Acknowledgments.  The Borrower hereby acknowledges that:


 


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


 


(b)                                         (i) the
Loans provided for hereunder and any related arranging or other services in
connection therewith (including in connection with any amendment, waiver or
other modification hereof or of any other Loan Document) are an arm’s-length
commercial transaction between the Borrower, on the one hand, and the
Administrative Agent, the Lenders and the other Agents on the other hand, and
the Borrower and the other Loan Parties are capable of evaluating and
understanding and understand and accept the terms, risks and conditions of the
transactions contemplated hereby and by the other Loan Documents (including any
amendment, waiver or other modification hereof or thereof); (ii) in
connection with the process leading to such transaction, each of the Administrative
Agent and the other Agents, is and has been acting solely as a principal and is
not the financial advisor, agent or fiduciary for the Borrower, any other Loan
Parties or any of their respective Affiliates, stockholders, creditors or
employees or any other Person; (iii) neither the Administrative Agent nor
any other Agent has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of the Borrower or any other Loan Party with respect to
any of the transactions contemplated hereby or the process leading thereto,
including with respect to any amendment, waiver or other modification hereof or
of any other Loan Document (irrespective of whether the Administrative Agent or
other Agent has advised or is currently advising the Borrower, the other Loan
Parties or their respective Affiliates on other matters) and neither the
Administrative Agent or other Agent has any obligation to the Borrower, the
other Loan Parties or their respective 


 


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Affiliates with respect to the transactions
contemplated hereby except those obligations expressly set forth herein and in
the other Loan Documents; (iv) the Administrative Agent, each other Agent
and each Affiliate of the foregoing may be engaged in a broad range of
transactions that involve interests that differ from those of the Borrower and
its Affiliates, and neither the Administrative Agent nor any other Agent has
any obligation to disclose any of such interests by virtue of any advisory,
agency or fiduciary relationship; and (v) neither the Administrative Agent
nor any other Agent has provided and none will provide any legal, accounting,
regulatory or tax advice with respect to any of the transactions contemplated
hereby (including any amendment, waiver or other modification hereof or of any
other Loan Document) and the Borrower has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate.  The Borrower hereby waives and releases, to
the fullest extent permitted by law, any claims that it may have against the
Administrative Agent or any other Agent with respect to any breach or alleged
breach of agency or fiduciary duty; and


 


(c)                                          no
joint venture is created hereby or by the other Loan Documents or otherwise
exists by virtue of the transactions contemplated hereby among the Lenders or
among the Borrower, on the one hand, and any Lender, on the other hand.


 


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


 


13.16.                       Confidentiality.  The Administrative Agent, each other Agent
and each Lender shall hold all non-public information furnished by or on behalf
of the Borrower or any of its Subsidiaries in connection with such Lender’s
evaluation of whether to become a Lender hereunder or obtained by such Lender,
the Administrative Agent or such other Agent pursuant to the requirements of
this Agreement (“Confidential Information”),
confidential in accordance with its customary procedure for handling
confidential information of this nature and (in the case of a Lender that is a
bank) in accordance with safe and sound banking practices and in any event may
make disclosure as required or requested by any governmental, regulatory or
self-regulatory agency or representative thereof or pursuant to legal process
or applicable law or regulation or (a) to such Lender’s or the
Administrative Agent’s or other Agent’s attorneys, professional advisors, independent
auditors, trustees or Affiliates, (b) to an investor or prospective
investor in a Securitization that agrees its access to information regarding
the Loan Parties, the Loans and the Loan Documents is solely for purposes of
evaluating an investment in a Securitization and who agrees to treat such
information as confidential, (c) to a trustee, collateral manager,
servicer, backup servicer, noteholder or secured party in connection with the
administration, servicing and reporting on the assets serving as collateral for
a securitization and who agrees to treat such information as confidential and (d) to
a nationally recognized ratings agency that requires access to information
regarding the Loan Parties, the Loans and Loan Documents in connection with ratings
issued with respect to a Securitization; provided that unless
specifically prohibited by applicable law or court order, each Lender, the
Administrative Agent and each other Agent shall use commercially reasonable efforts
to notify the Borrower of any request made to such Lender, the 


 


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Administrative
Agent or such other Agent by any governmental, regulatory or self regulatory
agency or representative thereof (other than any such request in connection
with an examination of the financial condition of such Lender by such agency)
for disclosure of any such non-public information prior to disclosure of such
information, and provided  further that in no event shall any
Lender, the Administrative Agent or any other Agent be obligated or required to
return any materials furnished by the Borrower or any Subsidiary.  Each Lender, the Administrative Agent and
each other Agent agrees that it will not provide to prospective Transferees or
to any pledgee referred to in Section 13.6 or to prospective direct
or indirect contractual counterparties in swap agreements to be entered into in
connection with Loans made hereunder any of the Confidential Information unless
such Person is advised of and agrees to be bound by the provisions of this Section 13.16
or confidentiality provisions at least as restrictive as those set forth in
this Section 13.16.


 


13.17.                       Direct
Website Communications.


 


(a)                                          The
Borrower may, at its option, provide to the Administrative Agent any
information, documents and other materials that it is obligated to furnish to
the Administrative Agent pursuant to the Loan Documents, including, without
limitation, all notices, requests, financial statements, financial and other
reports, certificates and other information materials, but excluding any such
communication that (A) relates to a request for a new, or a conversion of
an existing, borrowing or other extension of credit (including any election of
an interest rate or interest period relating thereto), (B) relates to the
payment of any principal or other amount due under the Senior Secured Credit
Agreement prior to the scheduled date therefor, (C) provides notice of any
default or event of default under this Agreement or (D) is required to be
delivered to satisfy any condition precedent to the effectiveness of the Senior
Secured Credit Agreement and/or any borrowing or other extension of credit
thereunder (all such non-excluded communications being referred to herein
collectively as “Communications”), by transmitting
the Communications in an electronic/soft medium in a format reasonably
acceptable to the Administrative Agent to the Administrative Agent at an email
address provided by the Administrative Agent from time to time; provided
that: (i) upon written request by the Administrative Agent, the Borrower
shall deliver paper copies of such documents to the Administrative Agent for
further distribution to each Lender until a written request to cease delivering
paper copies is given by the Administrative Agent and (ii) the Borrower
shall notify (which may be by facsimile or electronic mail) the Administrative
Agent of the posting of any such documents and provide to the Administrative
Agent by electronic mail electronic versions (i.e., soft copies) of such
documents. Each Lender shall be solely responsible for timely accessing posted
documents or requesting delivery of paper copies of such documents from the
Administrative Agent and maintaining its copies of such documents.  Nothing in this Section 13.17
shall prejudice the right of the Borrower, the Administrative Agent, any other
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.


 


The Administrative Agent agrees that the
receipt of the Communications by the Administrative Agent at its e-mail address
set forth above shall constitute effective delivery of the Communications to
the Administrative Agent for purposes of the Loan Documents.  Each Lender agrees that notice to it (as
provided in the next sentence) specifying that the 


 


127

















 


Communications have been posted to the
Platform shall constitute effective delivery of the Communications to such
Lender for purposes of the Loan Documents. 
Each Lender agrees (A) 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 (B) that the foregoing notice may be sent to such e-mail
address.


 


(b)                                         The
Borrower further agrees that any Agent may make the Communications available to
the Lenders by posting the Communications on Intralinks or a substantially
similar electronic transmission system (the “Platform”),
so long as the access to such Platform (i) is limited to the Agents and
the Lenders and Transferees or Prospective Transferees and (ii) remains
subject to the confidentiality requirements set forth in Section 13.16.


 


(c)                                          THE
PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”.  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT
WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY
OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS
FROM THE BORROWER MATERIALS.  NO WARRANTY
OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN
CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent or
any of its Related Parties (collectively, the “Agent
Parties” and each an “Agent Party”)
have any liability to the Borrower, any Lender, or any other Person for losses,
claims, damages, liabilities or expenses of any kind (whether in tort, contract
or otherwise) arising out of the Borrower’s or the Administrative Agent’s
transmission of Borrower Materials through the internet, except to the extent
the liability of any Agent Party resulted from such Agent Party’s (or any of
its Related Parties’ (other than any trustee or advisor)) gross negligence, bad
faith or willful misconduct or material breach of the Loan Documents.


 


(d)                                         The
Borrower and each Lender acknowledge that certain of the Lenders may be “public-side”
Lenders (Lenders that do not wish to receive material non-public information
with respect to the Borrower, its Subsidiaries or their securities) and, if
documents or notices required to be delivered pursuant to the Loan Documents or
otherwise are being distributed through the Platform, any document or notice
that the Borrower has indicated contains only publicly available information
with respect to the Borrower may be posted on that portion of the Platform designated
for such public-side Lenders.  If the
Borrower has not indicated whether a document or notice delivered contains only
publicly available information, the Administrative Agent shall post such
document or notice solely on that portion of the Platform designated for
Lenders who wish to receive material nonpublic information with respect to the
Borrower, its Subsidiaries and their securities.  Notwithstanding the foregoing, the Borrower
shall use commercially reasonable efforts to indicate whether any document or notice
contains only publicly available information.


 


13.18.                       USA
PATRIOT Act.  Each Lender hereby
notifies the Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law 


 


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October 26,
2001)) (the “Patriot Act”), it is required to
obtain, verify and record information that identifies each Loan Party, which
information includes the name and address of each Loan Party and other
information that will allow such Lender to identify each Loan Party in accordance
with the Patriot Act.


 


13.19.                       Judgment
Currency.  If, for the purposes of
obtaining judgment in any court, it is necessary to convert a sum due hereunder
or any other Loan Document in one currency into another currency, the rate of exchange
used shall be that at which in accordance with normal banking procedures the
Administrative Agent could purchase the first currency with such other currency
on the Business Day preceding that on which final judgment is given.  The obligation of the Borrower in respect of
any such sum due from it to the Administrative Agent or the Lenders hereunder
or under the other Loan Documents shall, notwithstanding any judgment in a
currency (the “Judgment Currency”) other than that
in which such sum is denominated in accordance with the applicable provisions
of this Agreement (the “Agreement Currency”),
be discharged only to the extent that on the Business Day following receipt by
the Administrative Agent of any sum adjudged to be so due in the Judgment
Currency, the Administrative Agent may in accordance with normal banking
procedures purchase the Agreement Currency with the Judgment Currency.  If the amount of the Agreement Currency so
purchased is less than the sum originally due to the Administrative Agent from
the Borrower in the Agreement Currency, the Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify the
Administrative Agent or the Person to whom such obligation was owing against such
loss.  If the amount of the Agreement Currency
so purchased is greater than the sum originally due to the Administrative Agent
in such currency, the Administrative Agent agrees to return the amount of any
excess to the Borrower (or to any other Person who may be entitled thereto
under applicable law).


 


13.20.                       Payments
Set Aside.  To the extent that any
payment by or on behalf of the Borrower is made to any Agent or any Lender, or
any Agent or any Lender exercises its right of setoff, and such payment or the
proceeds of such setoff or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including
pursuant to any settlement entered into by such Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had
not been made or such setoff had not occurred, and (b) each Lender
severally agrees to pay to the Administrative Agent upon demand its applicable
share of any amount so recovered from or repaid by any Agent, plus interest
thereon from the date of such demand to the date such payment is made at a rate
per annum equal to the applicable Overnight
Rate from time to time in effect.


 


13.21.                  Acknowledgements
Relating to the Closing Date.  Each
Loan Party hereby (i) expressly acknowledges the terms of this Agreement, (ii) ratifies
and affirms its obligations under the Loan Documents executed by such Loan
Party and (iii) acknowledges, renews and extends its continued liability
under all such Loan Documents and agrees such Loan Documents remain in full
force and effect, including with respect to the obligations of the Borrower as
modified by this Agreement.


 


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SECTION 14.                          Subordination.


 


14.1.                        Agreement
To Subordinate.  The Borrower agrees,
and each of the Administrative Agent and the Lenders agrees, that the payment of all principal, premium, if any, and
interest on Indebtedness under this Agreement is subordinated in right of
payment, to the extent and in the manner provided in this Section 14,
to the prior payment in full of all existing and future Senior Indebtedness of
the Borrower, and that the subordination is for the benefit of and enforceable
by the holders of such Senior Indebtedness. 
The Indebtedness that is permitted to be incurred under this Agreement
shall in all respects rank pari passu in
right of payment with all existing and future Senior Subordinated Indebtedness
of the Borrower, and will be senior in right of payment to all existing and
future Subordinated Indebtedness of the Borrower; and only Indebtedness of the
Borrower that is Senior Indebtedness shall rank senior to the Indebtedness that
is permitted to be incurred under this Agreement in accordance with the provisions
set forth herein.


 


14.2.                        Liquidation,
Dissolution or Bankruptcy.  Upon any payment or distribution of the
assets of the Borrower to creditors upon a total or partial liquidation or a
total or partial dissolution of the Borrower or in a reorganization,
bankruptcy, insolvency, receivership of or similar proceeding relating to the
Borrower or its property:


 


(i)                                     the holders of
Senior Indebtedness of the Borrower shall be entitled to receive payment in
full of such Senior Indebtedness in cash or Permitted Investments before
Lenders shall be entitled to receive any payment; and


 


(ii)                                  until the Senior
Indebtedness of the Borrower is paid in full in cash or Permitted Investments,
any payment or distribution to which Lenders would be entitled but for this Section 14
shall be made to holders of such Senior Indebtedness as their interests may
appear, except that Lenders may receive Permitted Junior Securities.


 


14.3.                        Default
on Senior Indebtedness of the Borrower. 
The Borrower shall not pay principal of, premium, if any, or interest on
the Loans (or pay any other Obligations relating to the Loans, including fees,
costs, expenses, indemnities and rescission or damage claims) and may not
purchase, redeem or otherwise retire any Loans (collectively, “pay the Loans”) (except in the form of Permitted Junior
Securities) if either of the following occurs (a “Payment Default”):


 


(i)                                     any Obligation on
any Designated Senior Indebtedness of the Borrower is not paid in full in cash
or Permitted Investments when due (after giving effect to any applicable grace
periods); or


 


(ii)                                  any other default on
Designated Senior Indebtedness of the Borrower occurs and the maturity of such
Designated Senior Indebtedness is accelerated in accordance with its terms;


 


unless, in either case, the
Payment Default has been cured or waived and any such acceleration has been
rescinded or such Designated Senior Indebtedness has been paid in full in cash
or Permitted Investments; provided, however, that the Borrower
shall be entitled to pay the Loans 


 


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without regard to the foregoing
if the Borrower and the Administrative Agent receive written notice approving
such payment from the Representatives of all Designated Senior Indebtedness
with respect to which the Payment Default has occurred and is continuing.


 


During the continuance of any default (other
than a Payment Default) with respect to any Designated Senior Indebtedness of
the Borrower pursuant to which the maturity thereof may be accelerated without
further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods (a “Non-Payment Default”), the Borrower shall not pay the Loans
(except in the form of Permitted Junior Securities) for a period (a “Payment Blockage Period”) commencing upon the receipt by the
Administrative Agent (with a copy to the Borrower) of written notice (a “Blockage Notice”) of such Non-Payment Default from the
Representative of such Designated Senior Indebtedness specifying an election to
effect a Payment Blockage Period and ending 179 days thereafter.  So long as there shall remain outstanding any
Senior Indebtedness under the Senior Secured Credit Agreement, a Blockage Notice
may be given only by the administrative agent thereunder unless otherwise
agreed to in writing by the requisite lenders named therein.  The Payment Blockage Period shall end earlier
if such Payment Blockage Period is terminated (i) by written notice to the
Administrative Agent and the Borrower from the Person or Persons who gave such
Blockage Notice; (ii) because the Non-Payment Default giving rise to such
Blockage Notice is cured, waived or otherwise no longer continuing; or (iii) because
such Designated Senior Indebtedness has been discharged or repaid in full in
cash or Permitted Investments.


 


Notwithstanding the provisions described in
the immediately preceding two sentences (but subject to the provisions
contained in the first sentence of this Section 14.3 and Section 14.2
hereof), unless the holders of such Designated Senior Indebtedness or the Representative
of such Designated Senior Indebtedness shall have accelerated the maturity of
such Designated Senior Indebtedness or a Payment Default has occurred and is
continuing, the Borrower shall be entitled to resume paying the Loans after the
end of such Payment Blockage Period.  The
Loans shall not be subject to more than one Payment Blockage Period in any
consecutive 360-day period irrespective of the number of defaults with respect
to Designated Senior Indebtedness of the Borrower during such period; provided that if any Blockage
Notice is delivered to the Administrative Agent by or on behalf of the holders
of Designated Senior Indebtedness of the Borrower (other than the holders of
Indebtedness under the Senior Secured Credit Agreement), a Representative of
holders of Indebtedness under the Senior Secured Credit Agreement may give
another Blockage Notice within such period. 
However, in no event shall the total number of days during which any
Payment Blockage Period or Periods on the Loans is in effect exceed 179 days in
the aggregate during any consecutive 360-day period, and there must be at least
181 days during any consecutive 360-day period during which no Payment Blockage
Period is in effect.  Notwithstanding the
foregoing, however, no default that existed or was continuing on the date of
delivery of any Blockage Notice to the Administrative Agent shall be, or be
made, the basis for a subsequent Blockage Notice unless such default shall have
been waived for a period of not less than 90 days (it being acknowledged that
any subsequent action, or any breach of any financial covenants during the
period after the date of delivery of a Blockage Notice, that, in either case,
would give rise to a Non-Payment Default pursuant to any provisions under which
a Non-Payment Default previously existed or was continuing shall constitute a
new Non-Payment Default for this purpose).


 


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14.4.                        Acceleration
of Payment of Loans.  If payment of
the Loans is accelerated because of an Event of Default, the Borrower shall
promptly notify the holders of the Designated Senior Indebtedness of the
Borrower or the Representative of such Designated Senior Indebtedness of the
acceleration; provided that any failure to give such notice shall have
no effect whatsoever on the provisions of this Section 14.  If any Designated Senior Indebtedness of the
Borrower is outstanding, the Borrower may not pay the Loans until five Business
Days after the Representatives of each Designated Senior Indebtedness of the Borrower
receive notice of such acceleration and, thereafter, the Borrower may pay the
Loans only if this Section 14 otherwise permits payment at that
time.


 


14.5.                        When
Distribution Must Be Paid Over.  If a
distribution is made to Lenders that, due to the provisions of this Section 14,
should not have been made to them, such Lenders are required to hold it in
trust for holders of Senior Indebtedness of the Borrower and pay it over to
them as their interests may appear.


 


14.6.                        Subrogation.  After all Senior Indebtedness of the Borrower
is paid in full in cash or Permitted Investments and until the Loans are paid
in full, Lenders shall be subrogated (equally and ratably with all other Senior
Subordinated Indebtedness pari passu with the Loans) to the rights of holders
of Senior Indebtedness of the Borrower to receive distributions applicable to
such Senior Indebtedness.  A distribution
made under this Section 14 to holders of such Senior Indebtedness
that otherwise would have been made to Lenders is not, as between the Borrower
and Lenders, a payment by the Borrower on such Senior Indebtedness.


 


14.7.                        Relative
Rights.  This Section 14
defines the relative rights of Lenders and holders of Senior Indebtedness of
the Borrower.  Nothing in this Agreement
shall:


 


(i)                                     impair, as between
the Borrower and Lenders, the obligation of the Borrower, which is absolute and
unconditional, to pay principal of and interest on the Loans in accordance with
their terms;


 


(ii)                                  prevent the
Administrative Agent or any Lender from exercising its available remedies upon
a Default, subject to the rights of holders of Senior Indebtedness of the
Borrower to receive payments or distributions otherwise payable to Lenders and
such other rights of such holders of Senior Indebtedness as set forth herein;
or


 


(iii)                               affect the relative
rights of Lenders and creditors of the Borrower, other than rights of Lenders
in relation to holders of Senior Indebtedness.


 


14.8.                        Subordination
May Not Be Impaired by Borrower. 
No right of any holder of Senior Indebtedness of the Borrower to enforce
the subordination of the Indebtedness permitted to be incurred under this
Agreement shall be impaired by any act or failure to act by the Borrower or by
its failure to comply with this Agreement.


 


14.9.                        Rights
of Administrative Agent and Paying Agent. 
Each Agent in its individual or any other capacity shall be entitled to
hold Senior Indebtedness of the Borrower with the same rights it would have if
it were not an Agent.  The Agent shall be
entitled to all the rights set forth in this Section 14 with
respect to any Senior Indebtedness of the Borrower which may at


 


132
















 


any time be
held by it, to the same extent as any other holder of such Senior
Indebtedness.  Nothing in this Section 14
shall apply to claims of, or payments to, the Agent under or pursuant to Section 13.5
hereof or any other Section of this Agreement.


 


14.10.        Distribution or Notice to
Representative.  Whenever a
distribution is to be made or a notice given to holders of Senior Indebtedness
of the Borrower, the distribution may be made and the notice given to their
Representative (if any).


 


14.11.        Section 14 Not To Prevent Events
of Default or Limit Right To Accelerate. 
The failure to make a payment pursuant to the Loans by reason of any
provision in this Section 14 shall not be construed as preventing
the occurrence of a Default.  Subject to Section 14.4,
nothing in this Section 14 shall have any effect on the right of
the Lenders or the Administrative Agent to accelerate the maturity of the
Loans.


 


14.12.        Subordination of Subsidiary
Guarantees.  The obligations of each
Guarantor under its Guarantee are subordinated in right of payment to the
obligations of such Guarantor under its Senior Indebtedness in the same manner
and to the same extent that the Loans are subordinated to Senior Indebtedness
of the Borrower pursuant to this Section 14.


 


14.13.        Reliance
by Lenders of Senior Indebtedness of the Borrower on Subordination Provisions.  Each Lender
acknowledges and agrees that the foregoing subordination provisions are, and
are intended to be, an inducement and a consideration to each holder of any Senior
Indebtedness of the Borrower, whether such Senior Indebtedness was created or
acquired before or after the Closing Date, to acquire and continue to hold, or
to continue to hold, such Senior Indebtedness and such holder of such Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such
Senior Indebtedness.


 


Without in any way limiting the generality of
the foregoing paragraph, the holders of Senior Indebtedness of the Borrower
may, at any time and from time to time, without the consent of or notice to the
Administrative Agent or the Lenders, without incurring responsibility to the
Administrative Agent or the Lenders and without impairing or releasing the subordination
provided in this Section 14 or the obligations hereunder of the
Lenders to the holders of the Senior Indebtedness of the Borrower, do any one
or more of the following:  (i) change the manner, place or terms
of payment or extend the time of payment of, or renew or alter, Senior Indebtedness
of the Borrower, or otherwise amend or supplement in any manner Senior
Indebtedness of the Borrower, or any instrument evidencing the same or any
agreement under which Senior Indebtedness of the Borrower is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness of the Borrower; (iii) release any
Person liable in any manner for the payment or collection of Senior
Indebtedness of the Borrower; and (iv) exercise or refrain from exercising
any rights against the Borrower and any other Person.


 


133

















 


IN WITNESS WHEREOF, each of the parties
hereto has caused a counterpart of this Agreement to be duly executed and
delivered as of the date first above written.


 


	
   

  	
  FIRST DATA CORPORATION, as Borrower

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stanley J. Andersen

  
	
   

  	
   

  	
  Name:

  	
  Stanley J. Andersen

  
	
   

  	
   

  	
  Title:

  	
  Vice President and Assistant Secretary

  
					



 


S-1

















 


	
   

  	
  CITIBANK, N.A., as

  
	
   

  	
  Administrative Agent and a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Caesar W. Wyszomirski

  
	
   

  	
   

  	
  Name:

  	
  Caesar W. Wyszomirski

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CITIGROUP GLOBAL MARKETS INC., as Joint

  Lead Arranger and Bookrunner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Caesar W. Wyszomirski

  
	
   

  	
   

  	
  Name:

  	
  Caesar W. Wyszomirski

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 


S-2

















 


	
   

  	
  CREDIT SUISSE, CAYMAN ISLANDS BRANCH,

  
	
   

  	
  as Syndication Agent and a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bill O’Daly

  
	
   

  	
   

  	
  Name:

  	
  Bill O’Daly

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ SoVonna Day-Goins

  
	
   

  	
   

  	
  Name:

  	
  SoVonna Day-Goins

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
						



 


S-3

















 


	
   

  	
  DEUTSCHE BANK AG CAYMAN ISLANDS

  BRANCH, as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Patrick W. Dowling

  
	
   

  	
   

  	
  Name:

  	
  Patrick W. Dowling

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen Cayer

  
	
   

  	
   

  	
  Name:

  	
  Stephen Cayer

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK SECURITIES INC., as Joint

  
	
   

  	
  Lead Arranger and Bookrunner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kris Mack

  
	
   

  	
   

  	
  Name:

  	
  Kris Mack

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jake Foley

  
	
   

  	
   

  	
  Name:

  	
  Jake Foley

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  



 


S-4

















 


	
   

  	
  GOLDMAN SACHS CREDIT PARTNERS L.P., as

  
	
   

  	
  Joint Lead Arranger and Bookrunner and a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Walt Jackson

  
	
   

  	
   

  	
  Name:

  	
  Walt Jackson

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  



 


S-5

















 


	
   

  	
  HSBC BANK USA, NATIONAL ASSOCIATION,

  as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Lopez

  
	
   

  	
   

  	
  Name:

  	
  Paul Lopez

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  



 


S-6

















 


	
   

  	
  LEHMAN COMMERCIAL PAPER INC., as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Laurie Perper

  
	
   

  	
   

  	
  Name:

  	
  Laurie Perper

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  LEHMAN BROTHERS INC., as Joint Lead

  Arranger and Joint Bookrunner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Laurie Perper

  
	
   

  	
   

  	
  Name:

  	
  Laurie Perper

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
						



 


S-7

















 


	
   

  	
  MERRILL LYNCH CAPITAL CORPORATION, as

  Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John C. Rowland

  
	
   

  	
   

  	
  Name:

  	
  John C. Rowland

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MERRILL LYNCH, PIERCE, FENNER & SMITH

  
	
   

  	
  INCORPORATED, as Joint Lead Arranger and

  Bookrunner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John C. Rowland

  
	
   

  	
   

  	
  Name:

  	
  John C. Rowland

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
						



 


S-8