Exhibit 10.1


 






 


AMENDED AND RESTATED CREDIT AGREEMENT


 


consisting of a


 


$25,000,000


Revolving Credit Facility,


 


and


 


$215,000,000 


Tranche B Term Loan Facility


 


dated as of


 


April 28, 2006,


 


among


 


AGA Medical Corporation,


as Borrower


 


AGA Medical Holdings, Inc.


 


The Lenders Party Hereto from Time to Time


Lehman Brothers Inc. and Citigroup Global Markets
Inc.,


as Joint Lead Arrangers and Joint Bookrunners


Citigroup Global Markets Inc.


as Syndication Agent


 


Lehman Commercial Paper Inc.,


as Administrative Agent


 






 

















 


TABLE OF
CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I         Definitions

  	
  1

  
	
  SECTION 1.01.

  	
  Defined Terms

  	
  1

  
	
  SECTION 1.02.

  	
  Classification
  of Loans and Borrowings

  	
  26

  
	
  SECTION 1.03.

  	
  Terms Generally

  	
  26

  
	
  SECTION 1.04.

  	
  Accounting
  Terms; GAAP

  	
  27

  
	
  SECTION 1.05.

  	
  Specified Transactions

  	
  27

  
	
  SECTION 1.06.

  	
  Letter of Credit
  Amounts

  	
  27

  
	
  ARTICLE II        The Credits

  	
  27

  
	
  SECTION 2.01.

  	
  Loans and
  Commitments

  	
  27

  
	
  SECTION 2.02.

  	
  Loans and
  Borrowings

  	
  27

  
	
  SECTION 2.03.

  	
  Requests for
  Borrowings

  	
  28

  
	
  SECTION 2.04.

  	
  Swingline Loans

  	
  29

  
	
  SECTION 2.05.

  	
  Letters of
  Credit

  	
  30

  
	
  SECTION 2.06.

  	
  Funding of
  Borrowings

  	
  35

  
	
  SECTION 2.07.

  	
  Interest
  Elections

  	
  35

  
	
  SECTION 2.08.

  	
  Termination and
  Reduction of Commitments

  	
  37

  
	
  SECTION 2.09.

  	
  Repayment of
  Loans; Evidence of Debt

  	
  37

  
	
  SECTION 2.10.

  	
  Amortization of
  Tranche B Term Loans

  	
  38

  
	
  SECTION 2.11.

  	
  Prepayment of
  Loans

  	
  39

  
	
  SECTION 2.12.

  	
  Fees

  	
  41

  
	
  SECTION 2.13.

  	
  Interest

  	
  41

  
	
  SECTION 2.14.

  	
  Alternate Rate
  of Interest

  	
  42

  
	
  SECTION 2.15.

  	
  Increased Costs

  	
  42

  
	
  SECTION 2.16.

  	
  Break Funding
  Payments

  	
  43

  
	
  SECTION 2.17.

  	
  Taxes

  	
  44

  
	
  SECTION 2.18.

  	
  Payments
  Generally; Pro Rata Treatment; Sharing of Setoffs

  	
  45

  
	
  SECTION 2.19.

  	
  Mitigation
  Obligations; Replacement of Lenders

  	
  47

  
	
  SECTION 2.20.

  	
  Incremental
  Extensions of Credit

  	
  47

  
	
  ARTICLE III      Representations and Warranties

  	
  49

  
	
  SECTION 3.01.

  	
  Organization;
  Power

  	
  49

  
	
  SECTION 3.02.

  	
  Authorization;
  Enforceability

  	
  49

  



 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 3.03.

  	
  Governmental
  Approvals; No Conflicts

  	
  49

  
	
  SECTION 3.04

  	
  Financial
  Condition; No Material Adverse Change

  	
  49

  
	
  SECTION 3.05.

  	
  Properties

  	
  50

  
	
  SECTION 3.06.

  	
  Litigation and
  Environmental Matters

  	
  50

  
	
  SECTION 3.07.

  	
  Compliance with
  Laws and Agreements

  	
  51

  
	
  SECTION 3.08.

  	
  Investment and
  Holding Company Status

  	
  51

  
	
  SECTION 3.09.

  	
  Taxes

  	
  51

  
	
  SECTION 3.10.

  	
  ERISA

  	
  52

  
	
  SECTION 3.11.

  	
  Disclosure

  	
  52

  
	
  SECTION 3.12.

  	
  Subsidiaries

  	
  52

  
	
  SECTION 3.13.

  	
  Insurance

  	
  52

  
	
  SECTION 3.14.

  	
  Labor Matters

  	
  52

  
	
  SECTION 3.15.

  	
  Solvency

  	
  52

  
	
  SECTION 3.16.

  	
  Senior
  Indebtedness

  	
  53

  
	
  SECTION 3.17.

  	
  Fraud and Abuse

  	
  53

  
	
  ARTICLE IV      Conditions

  	
  53

  
	
  SECTION 4.01.

  	
  Closing Date

  	
  53

  
	
  SECTION 4.02.

  	
  Each Credit
  Event

  	
  55

  
	
  ARTICLE V        Affirmative Covenants

  	
  56

  
	
  SECTION 5.01.

  	
  Financial
  Statements and Other Information

  	
  56

  
	
  SECTION 5.02.

  	
  Notices of
  Material Events

  	
  58

  
	
  SECTION 5.03.

  	
  Information
  Regarding Collateral

  	
  58

  
	
  SECTION 5.04.

  	
  Existence;
  Conduct of Business

  	
  59

  
	
  SECTION 5.05.

  	
  Payment of
  Obligations

  	
  59

  
	
  SECTION 5.06.

  	
  Maintenance of
  Properties

  	
  59

  
	
  SECTION 5.07.

  	
  Insurance

  	
  59

  
	
  SECTION 5.08.

  	
  Casualty and
  Condemnation

  	
  59

  
	
  SECTION 5.09.

  	
  Books and
  Records; Inspection and Audit Rights

  	
  59

  
	
  SECTION 5.10.

  	
  Compliance with
  Laws

  	
  60

  
	
  SECTION 5.11.

  	
  Use of Proceeds
  and Letters of Credit

  	
  60

  
	
  SECTION 5.12.

  	
  Additional
  Subsidiaries; Holdings

  	
  60

  



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 5.13.

  	
  Further
  Assurances

  	
  60

  
	
  SECTION 5.14.

  	
  Post Closing
  Matters

  	
  61

  
	
  ARTICLE VI      Negative Covenants

  	
  61

  
	
  SECTION 6.01.

  	
  Indebtedness;
  Certain Equity Securities

  	
  61

  
	
  SECTION 6.02.

  	
  Liens

  	
  63

  
	
  SECTION 6.03.

  	
  Fundamental
  Changes

  	
  64

  
	
  SECTION 6.04.

  	
  Investments,
  Loans, Advances, Guarantees and Acquisitions

  	
  65

  
	
  SECTION 6.05.

  	
  Asset Sales

  	
  67

  
	
  SECTION 6.06.

  	
  Sale and
  Leaseback Transactions

  	
  67

  
	
  SECTION 6.07.

  	
  Swap Agreements

  	
  68

  
	
  SECTION 6.08.

  	
  Restricted
  Payments; Certain Payments of Indebtedness

  	
  68

  
	
  SECTION 6.09.

  	
  Transactions
  with Affiliates

  	
  70

  
	
  SECTION 6.10.

  	
  Restrictive
  Agreements

  	
  71

  
	
  SECTION 6.11.

  	
  Amendment of
  Material Documents

  	
  72

  
	
  SECTION 6.12.

  	
  Interest Expense
  Coverage Ratio

  	
  72

  
	
  SECTION 6.13.

  	
  Leverage Ratio

  	
  73

  
	
  SECTION 6.14.

  	
  Intentionally
  Deleted

  	
  73

  
	
  SECTION 6.15.

  	
  Maximum Capital
  Expenditures

  	
  73

  
	
  ARTICLE VII     Events of Default

  	
  74

  
	
  SECTION 7.01.

  	
  Events of
  Default

  	
  74

  
	
  SECTION 7.02.

  	
  Borrower’s Right
  to Cure

  	
  77

  
	
  SECTION 7.03.

  	
  Exclusion of
  Immaterial Subsidiaries

  	
  77

  
	
  ARTICLE VIII    The Agents

  	
  78

  
	
  SECTION 8.01.

  	
  The Agents

  	
  78

  
	
  ARTICLE IX      Miscellaneous

  	
  79

  
	
  SECTION 9.01.

  	
  Notices

  	
  79

  
	
  SECTION 9.02.

  	
  Waivers;
  Amendments

  	
  80

  
	
  SECTION 9.03.

  	
  Expenses;
  Indemnity; Damage Waiver

  	
  82

  
	
  SECTION 9.04.

  	
  Successors and
  Assigns

  	
  84

  
	
  SECTION 9.05.

  	
  Survival

  	
  87

  
	
  SECTION 9.06.

  	
  Counterparts;
  Integration; Effectiveness

  	
  87

  



 


iii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 9.07.

  	
  Severability

  	
  87

  
	
  SECTION 9.08.

  	
  Right of Setoff

  	
  87

  
	
  SECTION 9.09.

  	
  Governing Law;
  Jurisdiction; Consent to Service of Process

  	
  88

  
	
  SECTION 9.10.

  	
  WAIVER OF JURY
  TRIAL

  	
  88

  
	
  SECTION 9.11.

  	
  Headings

  	
  88

  
	
  SECTION 9.12.

  	
  Confidentiality

  	
  88

  
	
  SECTION 9.13.

  	
  Interest Rate
  Limitation

  	
  89

  
	
  SECTION 9.14.

  	
  USA Patriot Act

  	
  89

  
	
  SECTION 9.15.

  	
  Release of
  Collateral

  	
  89

  
	
  SECTION 9.16.

  	
  Amendment and
  Restatement

  	
  89

  



 


iv

















 


	
  SCHEDULES:

  	
   

  
	
   

  	
   

  
	
  Schedule 1.01

  	
  — Mortgaged Property

  
	
  Schedule 2.01

  	
  — Commitments

  
	
  Schedule 3.05

  	
  — Real Property

  
	
  Schedule 3.12

  	
  — Subsidiaries

  
	
  Schedule 3.13

  	
  — Insurance

  
	
  Schedule 4.01 (h) 

  	
  — Sources and Uses

  	 

	
  Schedule 5.14

  	
  — Post-Closing
  Matters

  
	
  Schedule 6.01

  	
  — Existing
  Indebtedness

  
	
  Schedule 6.02

  	
  — Existing Liens

  
	
  Schedule 6.04

  	
  — Existing
  Investments

  
	
  Schedule 6.06

  	
  — Sale Leaseback
  Properties

  
	
  Schedule 6.09

  	
  — Existing
  Transactions with Affiliates

  
	
  Schedule 6.10

  	
  — Existing
  Restrictions

  



 


	
  EXHIBITS:

  	
   

  
	
   

  	
   

  
	
  Exhibit A

  	
  — Form of
  Assignment and Assumption

  
	
  Exhibit B-l

  	
  — Form of
  Opinion of Ropes & Gray LLP

  
	
  Exhibit B-2

  	
  — Form of
  Opinion of The Holstein Law Firm

  
	
  Exhibit C

  	
  — Form of
  Collateral Agreement

  
	
  Exhibit D

  	
  — Form of
  Perfection Certificate

  
	
  Exhibit E

  	
  — Form of
  Borrowing Request

  
	
  Exhibit F

  	
  — Form of
  Interest Election Request

  



 


v














 


This AMENDED AND RESTATED CREDIT AGREEMENT (the “Agreement”),
dated as of April 28, 2006, among AGA MEDICAL CORPORATION, a Minnesota
corporation, (the “Borrower”) AGA MEDICAL HOLDINGS, INC., a Delaware
corporation (“Holdings”), LEHMAN COMMERCIAL PAPER INC., LEHMAN BROTHERS
COMMERCIAL BANK, BANK OF AMERICA, N.A., CITICORP USA, INC., WACHOVIA BANK,
NATIONAL ASSOCIATION, as lenders, and each of the other lenders party hereto
from time to time (individually a “Lender”, and, collectively, the “Lenders”)
LEHMAN BROTHERS INC. AND CITIGROUP GLOBAL MARKETS INC, as joint lead arrangers
and joint bookrunners (in such capacity, the “Arrangers”), CITIGROUP
GLOBAL MARKETS INC, as syndication agent (in such capacity, the “Syndication
Agent”) and LEHMAN COMMERCIAL PAPER INC., as administrative agent (in such
capacity, the “Administrative Agent”) amends and restates in its
entirety the Existing Credit Agreement (as defined below).


 


W  I  T
N  E  S  S  E  T  H:


 


WHEREAS, the Borrower, Holdings, Lehman Commercial Paper Inc., Citicorp
USA, Inc., Deutsche Bank Trust Company Americas, Wachovia Bank, National
Association, as lenders and the Administrative Agent are parties to the Credit
Agreement, dated as of July 28, 2005 (as amended, supplemented or modified
prior to the date hereof, the “Existing Credit Agreement”);


 


WHEREAS, the Borrower has requested that the Lenders amend and restate
the Existing Credit Agreement to, among other things, add a new tranche B term
loan thereto, increase the aggregate principal amount of available Revolving
Credit Loans to $25,000,000 and amend the financial covenants (including
deleting the maximum senior leverage ratio covenant). In connection therewith,
the Borrower intends to (i) repay the Term Loans (as defined in the
Existing Credit Agreement), together with accrued and unpaid interest thereon,
outstanding under the Existing Credit Agreement, (ii) pay a dividend to
Holdings (as defined herein), and (iii) pay fees and expenses incurred in
connection with the foregoing (the transactions described in the foregoing
being referred to collectively as the “Transactions”); and


 


WHEREAS, (a) this Agreement, on the terms and subject to the
conditions set forth herein, shall amend and restate the Existing Credit
Agreement in its entirety as of the Closing Date, (b) this Agreement shall
not constitute a novation of the obligations and liabilities existing under the
Existing Credit Agreement or evidence payment of all or any of such obligations
and liabilities or constitute a release of any of the liens or security interests
granted in connection therewith and (c) from and after the Closing Date,
the Existing Credit Agreement shall be of no further force or effect, except to
evidence the Obligations (as defined therein) incurred, the representations and
warranties made, liens and security interests granted and the actions or
omissions performed or required to be performed thereunder prior to the Closing
Date;


 


NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, the parties hereto hereby agree as follows:


 


ARTICLE I


 


Definitions


 


SECTION 1.01.  Defined
Terms. As used in this Agreement, the following terms have the meanings
specified below:


 


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


 

















 


“Additional Lender” has the meaning set forth in Section 2.20.


 


“Additional Subordinated Debt” means unsecured Indebtedness of the
Borrower (that may be guaranteed by those Subsidiaries that are Loan Parties)
that (a) does not have a stated maturity date prior to the date that is
180 days after the Tranche B Term Loan Maturity Date, (b) does not require
any scheduled payment of principal (including pursuant to a sinking fund
obligation) or amortization prior to the date that is 180 days after the
Tranche B Term Loan Maturity Date, (c) is (and all guarantees with respect
thereto are) subordinated to the Obligations on terms (i) no less
favorable to the Lenders than the terms of the Senior Subordinated Notes or (ii) in
the case of high yield debt securities, customary for senior subordinated high
yield debt securities or as are reasonably satisfactory to the Administrative
Agent, (d) contains non-pricing terms (including covenants, events of
default, remedies, redemption provisions and sinking fund provisions) (i) no
less favorable to the Lenders than the terms of the Senior Subordinated Notes
taken as a whole or (ii) customary for senior subordinated high yield debt
securities and (e) bears a market rate of interest as determined by the
Borrower’s Board of Directors.


 


“Adjusted LIBO Rate” means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/100 of 1 %) equal to (a) the LIBO Rate for
such Interest Period multiplied by (b) the Statutory Reserve Rate.


 


“Administrative Agent” means Lehman Commercial Paper Inc., in
its capacity as administrative agent for the Lenders under the Loan Documents.


 


“Administrative Questionnaire” means an administrative
questionnaire in a form supplied by the Administrative Agent.


 


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


 


“Agents” means the Administrative Agent, the Collateral Agent
and the Syndication Agent.


 


“Agreement” means the Existing Credit Agreement as amended and
restated by this Amended and Restated Credit Agreement and as the same may be
renewed, extended, modified, supplemented or amended from time to time.


 


“Alternate Base Rate” means, for any day, a rate per annum equal
to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1 %. Any
change in the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective from and including the
effective date of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively.


 


“Applicable Percentage” means, with respect to any Revolving
Lender, the percentage of the aggregate Revolving Commitments represented by such
Lender’s Revolving Commitment. If the Revolving Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the
Revolving Commitments most recently in effect, giving effect to any assignments
that occur thereafter.


 


“Approved Fund” has the meaning assigned to such term in Section 9.04(b).


 


2

















 


“Assignment and Assumption” means an assignment and assumption
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04) and accepted by the Administrative
Agent, in the form of Exhibit A or any other form approved by the
Administrative Agent.


 


“Available Amount” means, the sum, without duplication, of:


 


(a) the sum (determined on a cumulative basis and
in no event less than zero) of the Borrower’s Portion of Excess Cash Flow for
all fiscal years ending after January 1, 2006, plus


 


(b) the amount of Net Proceeds actually received
by the Borrower from the issuance by Holdings of any Equity Interests (or
capital contribution in respect thereof) after the Original Closing Date that
was not (i) required to be applied to prepay Loans pursuant to Section 2.1l(c)(x) or
(ii) used to pay non-recurring cash charges or expenses in an aggregate
amount not to exceed $45,000,000 since the Original Closing Date incurred by
the Borrower and its Subsidiaries, plus


 


(c) the amount of Net Proceeds actually received
by the Borrower from the issuance after the Original Closing Date of Qualified
Holdings Debt that was not used to pay non-recurring cash charges or expenses
in an aggregate amount not to exceed $25,000,000 incurred by the Borrower and
its Subsidiaries, plus


 


(d) an amount equal to any returns (including
dividends, interest, distributions, returns of principal and profits on sale)
actually received by the Borrower or any of the Subsidiaries in cash in respect
of any Investments made after the Original Closing Date pursuant to Section 6.04(xvi),
minus


 


(e) the sum, without duplication, of (i) the
aggregate amount of Investments made after the Original Closing Date pursuant
to Section 6.04(xvi), (ii) the aggregate amount of Restricted
Payments made after the Original Closing Date pursuant to Section 6.08(a)(ix),
(iii) the aggregate amount of Net Proceeds of an IPO used to prepay,
redeem, defease, repurchase or otherwise retire the Senior Subordinated Notes
and (iv) the aggregate amount of payments made after the Original Closing
Date pursuant to Section 6.08(b)(iii) (other than such payments made
with proceeds of any Additional Subordinated Debt permitted by Section 6.01).


 


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


 


“Borrower” has the meaning set forth in the preamble to this
Agreement.


 


“Borrower’s Portion of Excess Cash Flow” means, on any date from
and after January 1, 2007, the portion of Excess Cash Flow for the
immediately preceding full fiscal year of the Borrower for which financial
statements have been delivered pursuant to Section 5.01 that has not been,
or is not required to be, applied to prepay Loans pursuant to Section 2.1l(d).


 


“Borrowing” means (a) Loans of the same Class and Type
made, converted or continued on the same date and, in the case of Eurodollar
Loans, as to which a single Interest Period is in effect, or (b) a
Swingline Loan.


 


3

















 


“Borrowing Request” means a request by the Borrower for a
Borrowing in accordance with Section 2.03, provided that a written
Borrowing Request shall be substantially in the form of Exhibit E,
or such other form as shall be approved by the Administrative Agent.


 


“Business Day” means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed, provided that when used in connection with a
Eurodollar Loan, the term “Business Day” shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.


 


“Capital Expenditures” means, for any period (and without
duplication), (a) the additions to property, plant and equipment and other
capital expenditures of the Borrower and any of the Subsidiaries that are (or
would be) set forth in a consolidated statement of cash flows of the Borrower
for such period prepared in accordance with GAAP and (b) Capital Lease
Obligations incurred by the Borrower and the Subsidiaries during such period; provided
that Capital Expenditures shall not include (i) expenditures to the extent
they are made with the proceeds of the issuance by Holdings of Equity Interests
(or capital contributions in respect thereof) after the Original Closing Date
to the extent not Otherwise Applied, Additional Subordinated Debt or Qualified
Holdings Debt, (ii) investments permitted under Section 6.04,
including Permitted Acquisitions, (iii) expenditures that constitute a
reinvestment of the Net Proceeds of any event described in clause (a) or (b) of
the definition of the term “Prepayment Event”, to the extent permitted by Section 2.1l(c),
and (iv) the purchase price of equipment purchased during such period to
the extent the consideration therefor consists of any combination of (x) used
or surplus equipment traded in at the time of such purchase and (y) the
proceeds of a concurrent sale of used or surplus equipment.


 


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


 


“Change in Control” means:


 


(a) the acquisition of record ownership by any
Person other than Holdings of any Equity Interests in the Borrower,


 


(b) prior to an IPO, the failure by the Permitted
Investors to own, directly or indirectly, beneficially or of record, Equity
Interests in Holdings representing a majority of the aggregate ordinary voting
power represented by the issued and outstanding Equity Interests in Holdings,


 


(c) after an IPO, (i) the acquisition of
ownership, directly or indirectly, beneficially or of record, by any Person or
group (within the meaning of the Securities Exchange Act of 1934, as amended,
and the rules of the SEC thereunder as in effect on the date hereof) of
Equity Interests in Holdings representing more than 35% of the aggregate
ordinary voting power represented by the issued and outstanding Equity
Interests in Holdings and (ii) the ownership, directly or indirectly,
beneficially or of record, by the Permitted Investors of Equity Interests in
Holdings representing in the aggregate a lesser percentage of the aggregate
ordinary voting power represented by the issued and outstanding Equity
Interests in Holdings than such Person or group,


 


4

















 


(d) occupation of a majority of the seats (other
than vacant seats) on the Board of Directors of Holdings by Persons who were
not (i) nominated by the Board of Directors of Holdings, (ii) appointed
by directors so nominated or (iii) nominated by the Permitted Investors,
or


 


(e) the occurrence of a “Change of Control”, as
defined in any of the Senior Subordinated Notes Documents, any indenture or
other instrument, agreement of other document evidencing or governing any
Qualified Holdings Debt or any certificate of designations relating to the
Qualified Preferred Stock.


 


“Change in Law” means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender
or the Issuing Bank (or, for purposes of Section 2.15(b), by any lending
office of such Lender or by such Lender’s or the Issuing Bank’s holding
company, if any) with any request, guideline or directive (whether or not
having the force of law) of any Governmental Authority made or issued after the
date of this Agreement.


 


“Charges” has the meaning set forth in Section 9.13.


 


“Class”, when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are Revolving
Loans, Tranche B Term Loans or Swingline Loans and, when used in reference to
any Commitment, refers to whether such Commitment is a Revolving Commitment or
a Tranche B Term Loan Commitment.


 


“CLO” has the meaning assigned to such term in Section 9.04(b).


 


“Code” means the Internal Revenue Code of 1986 and the rules and
regulations promulgated thereunder, as amended from time to time.


 


“Collateral” means any and all “Collateral”, as defined in any
applicable Security Document.


 


“Collateral Agent” means Lehman Commercial Paper Inc., in its
capacity as collateral agent for the Lenders under this Agreement and any
Security Document.


 


“Collateral Agreement” means the Guarantee and Collateral
Agreement among the Loan Parties and the Collateral Agent, substantially in the
form of Exhibit C.


 


“Collateral and Guarantee Requirement” means the requirement
that:


 


(a) the Collateral Agent shall have received from
each Loan Party either (i) a counterpart of the reaffirmation of the
Collateral Agreement duly executed and delivered on behalf of such Loan Party
or (ii) in the case of any Person that becomes a Loan Party after the
Closing Date, a supplement to the Collateral Agreement, in the form specified
therein, duly executed and delivered on behalf of such Loan Party;


 


(b) all outstanding Equity Interests of (i) the
Borrower and (ii) each Subsidiary owned directly by any Loan Party shall
have been pledged pursuant to the Collateral Agreement (except that the Loan
Parties shall not be required to pledge more than 65% of the outstanding voting
Equity Interests of any Foreign Subsidiary) and the Collateral Agent shall have
received


 


5

















 


all certificates or other instruments representing such Equity
Interests, together with undated stock powers or other instruments of transfer
with respect thereto endorsed in blank;


 


(c) all Indebtedness of Holdings, the Borrower
and each Subsidiary that is owing to any Loan Party shall be evidenced by a
promissory note and shall have been pledged pursuant to the Collateral
Agreement, and the Collateral Agent shall have received all such promissory
notes, together with undated instruments of transfer with respect thereto endorsed
in blank;


 


(d) all documents and instruments, including
Uniform Commercial Code financing statements, required by law or reasonably
requested by the Collateral Agent to be filed, registered or recorded to create
the Liens intended to be created by the Collateral Agreement and perfect such
Liens to the extent required by the Collateral Agreement, shall have been
executed, filed, registered or recorded or delivered to the Collateral Agent
for filing, registration or recording;


 


(e) the Collateral Agent shall have received (i) counterparts
of a Mortgage (or, if applicable, an amendment thereto) with respect to each
Mortgaged Property duly executed and delivered by the record owner of such
Mortgaged Property, (ii) a policy or policies of title insurance issued by
a nationally recognized title insurance company insuring the Lien of each such
Mortgage as a valid first-priority Lien on the Mortgaged Property described
therein, free of any other Liens except as expressly permitted by Section 6.02,
together with such endorsements, coinsurance and reinsurance as the Collateral
Agent or the Required Lenders may reasonably request, and such surveys,
appraisals, legal opinions and other documents as the Collateral Agent or the
Required Lenders may reasonably request with respect to any such Mortgage or
Mortgaged Property; and


 


(f) each Loan Party shall have obtained all
material consents and approvals required to be obtained by it in connection
with the execution and delivery of all Security Documents to which it is a
party, the performance of its obligations thereunder and the granting by it of
the Liens thereunder.


 


Notwithstanding anything to the contrary in this Agreement or any
Security Document, no Loan Party shall be required to pledge or grant security
interests in particular assets if, in the reasonable judgment of the
Administrative Agent or the Collateral Agent, the costs of creating or
perfecting such pledges or security interests in such assets (including any
mortgage, stamp, intangibles or other tax) are excessive in relation to the
benefits to the Lenders therefrom.


 


“Commitment” with respect to any Lender, each of the Tranche B
Term Loan Commitment, Revolving Credit Commitment and any Commitment in respect
of an Incremental Extension of Credit or any combination thereof (as the
context requires).


 


“Consolidated EBITDA” means, for any period, Consolidated Net
Income for such period plus


 


(a) without duplication and to the extent deducted in determining
such Consolidated Net Income for such period, the sum of: (i) (A) consolidated
interest expense of the Borrower and its subsidiaries for such period and (B) interest
expense of Holdings to the extent paid or payable in cash during such period
and financed by a Restricted Payment by the Borrower to the extent permitted
hereunder and funded from consolidated operating cash flow of the Borrower, (ii) (A) consolidated
income tax expense of the Borrower and its subsidiaries for such period and (B) income
tax expense of Holdings for such period to the extent paid in such period using
the proceeds of Restricted Payments


 


6

















 


made by the
Borrower pursuant to clause (v) of Section 6.08(a), (iii) all
amounts attributable to depreciation and amortization expense of the Borrower
and its subsidiaries for such period, (iv) any non-cash charges for such
period (but excluding (A) any non-cash charge in respect of an item that
was included in Consolidated Net Income in a prior period and (B) any
non-cash charge that relates to the write-down or write-off of inventory), (v) any
fees and expenses made or incurred by Holdings, the Borrower and its
subsidiaries in connection with the Original Transactions and/or the
Transactions that are paid, accrued or reserved for within 180 days of the
consummation of the Original Transactions or the Transactions, as applicable, (vii) any
non-recurring fees, cash charges and other cash expenses (A) made or
incurred by the Borrower and its subsidiaries in connection with any Permitted
Acquisition, including severance, relocation and facilities closing costs, that
are paid, accrued or reserved for within 180 days of such transaction or (B) incurred
in connection with the issuance of Equity Interests or Indebtedness or the
extinguishment of Indebtedness, (viii) other cash expenses incurred during
such period in connection with a Permitted Acquisition to the extent that such
expenses are reimbursed in cash during such period pursuant to indemnification
provisions of any agreement relating to such transaction, (ix) fees paid
to any Sponsor or Sponsor Affiliate under Section 6.09(h), (viii) Consolidated
Net Income attributable to minority interests of a subsidiary (less the amount
of any mandatory cash distribution with respect to any minority interest other than
in connection with a proportionate discretionary cash distribution with respect
to the interest held by the Borrower or any subsidiary), (x) cash expenses
incurred during such period in connection with extraordinary casualty events to
the extent such expenses are reimbursed (or reasonably anticipated to be
reimbursed) in cash by insurance during such period (or in a subsequent period)
and (xi) non-recurring cash charges or expenses incurred by the Borrower and
its Subsidiaries, minus


 


(b) without duplication and to the extent included in determining
such Consolidated Net Income, (i) any cash payments made during such
period in respect of non-cash charges described in clause (a)(iv) taken in
a prior period and (ii) any non-cash items of income for such period, all
determined on a consolidated basis in accordance with GAAP, and


 


(c) (without duplication) plus unrealized losses and minus
unrealized gains in each case in respect of Swap Agreements, as determined in
accordance with GAAP.


 


“Consolidated Net Income” means, for any period, the net income
or loss of the Borrower and its subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, provided that there shall be
excluded from Consolidated Net Income (a) the income of any subsidiary to
the extent that the declaration or payment of dividends or other distributions
by such subsidiary of that income is not at the time permitted by a Requirement
of Law or any agreement or instrument applicable to such subsidiary, except to
the extent of the amount of cash dividends or other cash distributions actually
paid to the Borrower or any subsidiary during such period (unless the income of
any subsidiary receiving such dividend or distribution would be excluded from
Consolidated Net Income pursuant to this proviso), and (b) any gains or
losses attributable to sales of assets out of the ordinary course of business
and any extraordinary losses or gains. Notwithstanding the foregoing, (1) the
income of any Permitted Joint Venture that is not a subsidiary shall be
included in Consolidated Net Income during any four quarter period only to the
extent of the amount of cash dividends or other cash distributions of such
income actually paid to the Borrower or any subsidiary prior to the date
financial statements are required to be delivered pursuant to Section 5.01
(a) or (b) for the most recent fiscal period (unless the income of
the subsidiary receiving such dividend or distribution would be excluded from
Consolidated Net Income pursuant to this definition) and (2) for purposes
of calculating the “Available Amount”, Consolidated Net Income shall be
increased (without duplication) by the amount of cash dividends or other cash
distributions actually paid to the Borrower or any subsidiary (unless the income
of the subsidiary receiving such dividend or distribution would be excluded
from Consolidated Net Income pursuant to this definition) since the Original
Closing Date, to the extent not previously included therein.


 


7

















 


“Contribution and Exchange Agreement” means the Contribution and
Exchange Agreement, dated as of July 28, 2005, among Holdings, the
Borrower and the shareholders of the Borrower listed on the signature pages thereto.


 


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


 


“Default” means any event or condition that constitutes an Event
of Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.


 


“dollars” or “$” refers to lawful money of the United
States of America.


 


“Domestic Subsidiary” means any Subsidiary incorporated or
organized under the laws of the United States of America, any State thereof or
the District of Columbia.


 


“Environmental Laws” means all laws (including the common law),
rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions,
notices or binding agreements issued, promulgated or entered into by or with
any Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources, the presence, management,
Release or threatened Release of any Hazardous Material, or to health and
safety matters.


 


“Environmental Liability” means liabilities, obligations,
damages, claims, actions, suits, judgments, orders, fines, penalties, fees, expenses
and costs (including administrative oversight costs, natural resource damages
and medical monitoring, investigation or remediation costs), whether contingent
or otherwise, arising out of or relating to (a) compliance or
non-compliance with any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the Release
or threatened Release of any Hazardous Materials or (e) any contract,
agreement or other consensual arrangement pursuant to which liability is
assumed or imposed with respect to any of the foregoing.


 


“Equity Interests” means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person, and any
warrants, options or other rights entitling the holder thereof to purchase or
acquire any such equity interest from the issuer thereof.


 


“ERISA” means the Employee Retirement Income Security Act of
1974 and the regulations promulgated thereunder, as amended from time to time.


 


“ERISA Affiliate” means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414 of the Code.


 


“ERISA Event” means (a) any “reportable event”, as defined
in Section 4043 of ERISA or the regulations issued thereunder, with
respect to a Plan (other than an event for which the 30 day notice period is
waived), (b) the existence with respect to any Plan of an “accumulated
funding deficiency” (as defined in Section 412 of the Code or Section 302
of ERISA), whether or not waived, (c) the filing pursuant to Section 412(d) of
the Code or Section 303(d) of ERISA of an application for a waiver of
the minimum funding standard with respect to any Plan, (d) the incurrence
by the Borrower or any of its ERISA Affiliates of any liability under Title IV
of ERISA with respect to the termination of any Plan, (e) the receipt by
the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of
any notice relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any


 


8

















 


Plan, (f) the
incurrence by the Borrower or any of its ERISA Affiliates of any liability with
respect to the withdrawal or partial withdrawal from any Plan or Multiemployer
Plan or (g) the receipt by the Borrower or any ERISA Affiliate of any
notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA
Affiliate of any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA.


 


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


 


“Event of Default” has the meaning assigned to such term in Section 7.01.


 


“Excess Cash Flow” means, for any fiscal year, the sum (without
duplication) of:


 


(a) Consolidated Net Income for such fiscal year,
adjusted to exclude any gains or losses attributable to Prepayment Events; plus


 


(b) depreciation, amortization and other non-cash
charges or losses (including deferred income taxes) deducted in determining
such Consolidated Net Income for such fiscal year; plus


 


(c) the amount, if any, by which Net Working
Capital decreased during such fiscal year (except as a result of
reclassification of items from short-term to long-term); minus


 


(d) the sum of (i) any non-cash gains or
non-cash items of income included in determining Consolidated Net Income for
such fiscal year plus (ii) the amount, if any, by which Net Working
Capital increased during such fiscal year (except as a result of
reclassification of items from long-term to short-term); minus


 


(e) the amount of Capital Expenditures of the
Borrower and its subsidiaries in such fiscal year (except to the extent
attributable to the incurrence of Capital Lease Obligations or otherwise
financed by incurring Long-Term Indebtedness); minus


 


(f) the aggregate principal amount of Long-Term
Indebtedness repaid or prepaid by the Borrower and its subsidiaries during such
fiscal year, excluding (i) Indebtedness in respect of Revolving Loans and
Letters of Credit (unless there is a corresponding reduction in the aggregate
Revolving Commitments), (ii) Tranche B Term Loans prepaid pursuant to Section 2.11
(a), (c) or (d), and (iii) repayments or prepayments of Long-Term
Indebtedness financed by the incurrence of other Long-Term Indebtedness by a
Parent or any Loan Party or the issuance of Equity Interests (or capital
contributions in respect thereof) after the Original Closing Date to the extent
not Otherwise Applied; minus


 


(g) the amount of Restricted Payments made by a
Loan Party in such fiscal year pursuant to clauses (iii), (iv), (v), (vii),
(viii), (x), (xi), (xiii) and (xv) of Section 6.08(a); minus


 


(h) to the extent not deducted in the calculation
of Consolidated Net Income, the amount of Investments made by a Loan Party in
such fiscal year pursuant to clauses (i), (iv)(B), (v)(B), (xv) and (xvii) of Section 6.04;
minus


 


9














 


(i) cash Taxes paid in such fiscal year that did
not reduce Consolidated Net Income for such fiscal year; minus


 


(j) cash payments made during such fiscal year in
respect of non-cash charges that increased Excess Cash Flow in any prior fiscal
year.


 


“Excluded Taxes” means, with respect to the Administrative
Agent, any Lender, the Issuing Bank or any other recipient of any payment to be
made by or on account of any obligation of the Borrower hereunder, (a) income
or franchise taxes imposed on (or measured by) its net income by the United
States of America, or by the jurisdiction under the laws of which such
recipient is organized or in. which its principal office is located or, in the
case of any Lender, in which its applicable lending office is located, (b) any
branch profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction described in clause (a) above, (c) in
the case of a Foreign Lender (other than an assignee pursuant to a request by
the Borrower under Section 2.19 (b)), any withholding tax that is
in effect and would apply to amounts payable to such Foreign Lender at the time
such Foreign Lender becomes a party to this Agreement (or designates a new
lending office), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Borrower with
respect to any withholding tax pursuant to Section 2.17(a), and (d) any
withholding tax that is attributable to a Foreign Lender’s failure to comply
with Section 2.17(e).


 


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


 


“Fair Market Value” means the value that would be paid by a
willing buyer to an unaffiliated willing seller in a transaction not involving
distress or necessity of either party, determined in good faith by the Board of
Directors, chief executive officer or chief financial officer of the Borrower.


 


“FCPA” means the Foreign Corrupt Practices Act and the
regulations promulgated thereunder, as amended from time to time.


 


“FCPA Claims” means all claims, damages, liabilities,
obligations, losses, penalties, actions, judgments and suits of any kind or
nature that are asserted against, paid or payable by any Loan Party or any
Subsidiary thereof, in connection with non-compliance with FGPA and any other
related, applicable statute.


 


“Federal Funds Effective Rate” means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.


 


“Financial Officer” means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower, in each case in
his or her capacity as such.


 


“Financial Performance Covenants” means the covenants of the
Borrower set forth in Sections 6.12 and 6.13.


 


“Foreign Lender” means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of


 


10

















 


America, each
State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.


 


“Foreign Subsidiary” means any Subsidiary that is not a Domestic
Subsidiary.


 


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


 


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


 


“Guarantee” of or by any Person (the “guarantor”) means
any obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any Indebtedness or other obligation
of any other Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of the guarantor, direct
or indirect, (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation or to purchase
(or to advance or supply funds for the purchase of) any security for the
payment thereof, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness or other obligation
of the payment thereof, (c) to maintain working capital, equity capital or
any other financial statement condition or liquidity of the primary obligor so
as to enable the primary obligor to pay such Indebtedness or other obligation
or (d) as an account party or applicant in respect of any letter of credit
or letter of guaranty issued to support such Indebtedness or obligation, provided
that the term “Guarantee” shall not include endorsements for collection or
deposit in the ordinary course of business. The amount of any Guarantee of any
guaranteeing person shall be deemed to be the lower of (a) an amount equal
to the stated or determinable amount of the primary obligation in respect of
which the Guarantee is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee.


 


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


 


“Holdings” has the meaning set forth in the preamble to this
Agreement.


 


“Inactive Subsidiary” means a Subsidiary that (a) conducts
no business operations, (b) has total assets with a fair market value of
not more than $500,000 individually and not more than $1,000,000 in the
aggregate for all Inactive Subsidiaries and (c) has no Indebtedness
outstanding.


 


“Incremental Extensions of Credit” has the meaning set forth in Section 2.20.


 


“Incremental Facility Amendment” has the meaning set forth in Section 2.20.


 


“Incremental Facility Closing Date” has the meaning set forth in
Section 2.20.


 


“Indebtedness” of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, (c) all obligations of
such Person upon which interest charges are customarily paid, (d) all
obligations of such Person under conditional sale


 


11

















 


or other title
retention agreements relating to property acquired by such Person, (e) all
obligations of such Person in respect of the deferred purchase price of
property or services (excluding trade accounts payable and accrued obligations
incurred in the ordinary course of business), (f) all obligations of
others secured by (or for which the holder of such obligations has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the obligations secured thereby have
been assumed, but limited, in the event such secured obligations are
nonrecourse to such Person, to the fair value of such property, (g) all
Guarantees by such Person of the obligations of any other Person, (h) all
Capital Lease Obligations of such Person, (i) all obligations, contingent
or otherwise, of such Person as an account party or applicant in respect of
letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers’ acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person’s ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
Notwithstanding the foregoing, the term “Indebtedness” shall not include
post-closing payment adjustments, earn-outs or non-compete payments to which
the seller in any Permitted Acquisition is or may become entitled or amounts
that any member of management, the employees or consultants of Holdings, the
Borrower or any of the Subsidiaries may become entitled to under any cash
incentive plan in existence from time to time.


 


“Indemnified Taxes” means Taxes other than Excluded Taxes.


 


“Indemnitee” has the meaning set forth in Section 9.03(b).


 


“Information” has the meaning set forth in Section 9.12.


 


“Interest Election Request” means a request by the Borrower to
convert or continue a Revolving Borrowing or a Tranche B Term Loan Borrowing in
accordance with Section 2.07, provided that a written Interest
Election Request shall be substantially in the form of Exhibit F,
or such other form as shall be approved by the Administrative Agent.


 


“Interest Expense Coverage Ratio” has the meaning set forth in Section 6.12.


 


“Interest Payment Date” means (a) with respect to any ABR
Loan (including a Swingline Loan), the last day of each March, June, September and
December and (b) with respect to any Eurodollar Loan, the last day of
the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurodollar Borrowing with an Interest Period of more than
three months’ duration, each day prior to the last day of such Interest Period
that occurs at intervals of three months’ duration after the first day of such
Interest Period.


 


“Interest Period” means, with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on
the numerically corresponding day in the calendar month that is one, two, three
or six months thereafter (or nine or twelve months thereafter if, at the time
of the relevant Borrowing, all Lenders participating therein agree to make an
interest period of such duration available), as the Borrower may elect, provided
that (a) if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day
unless such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business
Day, and (b) any Interest Period that commences on the last Business Day
of a calendar month (or on a day for which there is no numerically corresponding
day in the last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period. For purposes
hereof, the date of a Borrowing initially


 


12

















 


shall be the date
on which such Borrowing is made and thereafter shall be the effective date of
the most recent conversion or continuation of such Borrowing.


 


“IPO” means a bona fide underwritten initial public offering of
Equity Interests of Holdings after the Closing Date.


 


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


 


“Issuer Document” means all applications for Letters of Credit
by the Borrower and all documents between the Issuing Bank and the Borrower
related to the issuance of such Letters of Credit.


 


“Issuing Bank” means Lehman Brothers Bank, FSB or a Lender designated
by the Borrower with the consent of the Administrative Agent and the Borrower
(which consent shall not be unreasonably withheld) and such Lender or such
other Lender designated as an “Issuing Bank” pursuant to Section 2.05(k).
The Issuing Bank may, in its discretion, arrange for one or more Letters of
Credit to be issued by Affiliates of the Issuing Bank, in which case the term “Issuing
Bank” shall include any such Affiliate with respect to Letters of Credit issued
by such Affiliate.


 


“LC Advance” has meaning set forth in Section 2.05(c).


 


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


 


“LC Exposure” means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit at such time plus
(b) the aggregate amount of all LC Disbursements that have not yet been
reimbursed by or on behalf of the Borrower at such time. For purposes of
computing the amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance with Section 1.06.
For all purposes of this Agreement, if on any date of determination a Letter of
Credit has expired by its terms but any amount may still be drawn thereunder by
reason of the operation of Rule 3.14 of the ISP, such Letter of Credit
shall be deemed to be “outstanding” in the amount so remaining to be drawn. The
LC Exposure of any Revolving Lender at any time shall be its Applicable
Percentage of the aggregate LC Exposure at such time, “Lenders” means
the Persons listed on Schedule 2.01 and any other Person that shall have
become a party hereto pursuant to an Assignment and Assumption or an
Incremental Facility Amendment, other than any such Person that ceases to be a
party hereto pursuant to an Assignment and Assumption. Unless the context
otherwise requires, the term “Lenders” includes the Swingline Lender.


 


“Letter of Credit” means any letter of credit issued pursuant to
this Agreement.


 


“Letter of Credit Expiration Date” means the date that is five
Business Days prior to the Revolving Maturity Date then in effect (or if such
day is not a Business Day, the next preceding Business Day).


 


“Leverage Ratio” means, on any date, the ratio of (a) Total
Indebtedness on such date to (b) Consolidated EBITDA for the period of
four consecutive fiscal quarters of the Borrower ended on such date (or, if
such date is not the last day of a fiscal quarter, ended on the last day of the
fiscal quarter of the Borrower most recently ended prior to such date).


 


13

















 


“LIBO Rate” means, with respect to any Eurodollar Borrowing for
any Interest Period, the rate appearing on Telerate Page 3750 (or on any
successor or substitute page of such service, or any successor to or
substitute for such service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the “LIBO Rate” with respect to
such Eurodollar Borrowing for such Interest Period shall be the rate at which
dollar deposits for a comparable amount and for a maturity comparable to such
Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior
to the commencement of such Interest Period.


 


“Lien” means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset or other arrangement to provide priority or
preference with respect to such asset, (b) the interest of a vendor or a
lessor under any conditional sale agreement, capital lease or title retention
agreement (or any financing lease having substantially the same economic effect
as any of the foregoing) relating to such asset and (c) in the case of
securities, any purchase option, call or similar right of a third party (other
than customary rights of first refusal and tag, drag and similar rights in
joint venture agreements (other than any such agreement in respect of any
Subsidiary)) with respect to such securities.


 


“Loan Documents” means this Agreement, the promissory notes, if
any, executed and delivered pursuant to Section 2.09 (e), any Incremental
Facility Amendment, the Collateral Agreement and the other Security Documents.


 


“Loan Parties” means Holdings, the Borrower, the Subsidiary Loan
Parties and each Permitted Joint Venture Loan Party.


 


“Loans” means the loans made by the Lenders to the Borrower
pursuant to this Agreement or an Incremental Facility Amendment.


 


“Long-Term Indebtedness” means any Indebtedness that, in
accordance with GAAP, constitutes (or, when incurred, constituted) a long-term
liability.


 


“Material Adverse Effect” means a material adverse effect on (a) the
business, operations, assets, liabilities, financial condition or results of
operations of Holdings, the Borrower and the Subsidiaries, taken as a whole,
whether or not covered by insurance, (b) the ability of any Loan Party to
perform any obligation under any Loan Document or (c) the rights of or
benefits available to the Lenders under any Loan Document.


 


“Material Disposition” means the sale by the Borrower or any
Subsidiary of assets (including the capital stock of a Subsidiary or a business
unit) for aggregate consideration (including amounts received in connection
with post-closing payment adjustments, earn-outs and noncompete payments) of at
least $5,000,000.


 


“Material Indebtedness” means Indebtedness (other than the Loans
and Letters of Credit), or obligations in respect of one or more Swap
Agreements of any one or more of Holdings, the Borrower and the Subsidiaries in
an aggregate principal amount exceeding $10,000,000. For purposes of
determining Material Indebtedness, the “principal amount” of the obligations of
the Borrower or any


 


14

















 


Subsidiary in
respect of any Swap Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that the Borrower or such Subsidiary
would be required to pay if such Swap Agreement were terminated at such time.


 


“Maximum Rate” has the meaning set forth in Section 9.13.


 


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


 


“Mortgage” means a mortgage, deed of trust, assignment of leases
and rents, leasehold mortgage or other security document granting a Lien on any
Mortgaged Property to secure the Obligations. Each Mortgage shall be reasonably
satisfactory in form and substance to the Collateral Agent.


 


“Mortgaged Property” means, initially, each parcel of real
property and the improvements thereto owned by a Loan Party and identified on Schedule
1.01 and includes each other parcel of real property owned by a Loan Party
and improvements thereto with respect to which a Mortgage is granted pursuant
to Section 5.12 or 5.13.


 


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


 


“Net Proceeds” means, with respect to any event, (a) the
cash proceeds received in respect of such event including (i) any cash
received in respect of any non-cash proceeds (including any cash payments received
by way of deferred payment of principal pursuant to a note or installment
receivable or purchase price adjustment receivable or otherwise, but excluding
any interest payments), but only as and when received, (ii) in the case of
a casualty, insurance proceeds and (iii) in the case of a condemnation or
similar event, condemnation awards and similar payments, net of (b) the
sum of (i) all reasonable fees and out-of-pocket expenses paid to third
parties (other than Affiliates) in connection with such event, (ii) in the
case of a sale, transfer or other disposition of an asset (including pursuant
to a sale and leaseback transaction or a casualty or a condemnation or similar
proceeding), the amount of all payments required to be made as a result of such
event to repay Indebtedness (other than Loans) secured by such asset or
otherwise subject to mandatory prepayment as a result of such event and (iii) the
amount, of all taxes paid (or reasonably estimated to be payable) and the
amount of any reserves established to fund liabilities reasonably estimated to
be payable, in each case during the year that such event occurred or the next
succeeding year and that are directly attributable to such event (as determined
reasonably and in good faith by a Financial Officer), provided that no
net proceeds calculated in accordance with the foregoing of less than $500,000
realized in a single transaction or series of related transactions shall
constitute Net Proceeds.


 


“Net Working Capital” means, at any date, (a) the consolidated
current assets of the Borrower and its subsidiaries as of such date (excluding
cash and Permitted Investments) minus (b) the consolidated current
liabilities of the Borrower and its subsidiaries as of such date (excluding
current liabilities in respect of Indebtedness). Net Working Capital at any
date may be a positive or negative number. Net Working Capital increases when
it becomes more positive or less negative and decreases when it becomes less
positive or more negative.


 


“Non-Consenting Lender” has the meaning set forth in Section 9.02(b).


 


“Obligations” has the meaning assigned to such term in the
Collateral Agreement.


 


“Original Closing Date” means July 28, 2005.


 


15

















 


“Original Transaction Documents” means the Stock Purchase
Agreement, the Contribution and Exchange Agreement, the Settlement Agreement,
the Research Agreement, the Stockholders Agreement and the other agreements to
be entered into in connection with the Original Transactions, all schedules,
exhibits and annexes to each of the foregoing and all side letters, instruments
and agreements affecting the terms of any of the foregoing or entered into in
connection therewith.


 


“Original Transactions” means “Transactions” as defined in the
Existing Credit Agreement.


 


“Other Taxes” means any and all present or future recording,
stamp, documentary, excise, transfer, sales, property or similar taxes, charges
or levies of the United States or any political subdivision thereof arising
from any payment made under any Loan Document or from the execution, delivery
or enforcement of, or from the filing or recording of or otherwise with respect
to the exercise by the Administrative Agent or the Lenders of their rights
under, any Loan Document.


 


“Otherwise Applied” means, with respect to any Net Proceeds, the
amount of such Net Proceeds that was (i) required to prepay the Loans
pursuant to Section 2.11 or (ii) otherwise previously applied under
the Loan Documents.


 


“Parent” means any direct or indirect parent of which Holdings
is a wholly owned subsidiary.


 


“Participant” has the meaning set forth in Section 9.04(c).


 


“Patriot Act” has the meaning set forth in Section 9.14.


 


“PBGC” means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.


 


“Perfection Certificate” means a certificate in the form of Exhibit D
or any other form approved by the Collateral Agent.


 


“Permitted Acquisitions” means any acquisition by the Borrower
or any Subsidiary Loan Party at least 80% of all outstanding Equity Interests
(other than directors’ qualifying shares or shares issued to foreign nationals
to the extent required by applicable law) in, all or substantially all the
assets of, or all or substantially all the assets constituting a division or
line of business of, a Person if (a) such acquisition was not preceded by,
or consummated pursuant to, a hostile offer (including a proxy contest), (b) no
Default has occurred and is continuing or would result therefrom, (c) after
giving effect to such acquisition, the Borrower and the Subsidiary Loan Party
shall have aggregate unused and available Revolving Commitments and
unrestricted cash and Permitted Investments of not less than $3,000,000, (d) such
acquisition and all transactions related thereto are consummated in accordance
in all material respects with all applicable laws, (e) all actions
required to be taken with respect to such acquired or newly formed Subsidiary
(if a Domestic Subsidiary) or assets (if held by a Domestic Subsidiary) to
cause such Person to become a Loan Party under Sections 5.12 and 5.13 shall
have been taken (or shall be taken promptly thereafter), (f) the Borrower
and the Subsidiaries are in compliance on a Pro Forma Basis with the Financial
Performance Covenants recomputed as of the last day of the most recently ended
fiscal quarter of the Borrower for which financial statements are available,
and (g) the Borrower has delivered to the Administrative Agent an officer’s
certificate to the effect set forth in clauses (a), (b), (c), (d), (e) and
(f) above, together with all relevant financial information for the Person
or assets to be acquired.


 


16

















 


“Permitted Encumbrances” means:


 


(a) Liens imposed by law for taxes that are not
yet due or are being contested in compliance with Section 5.05;


 


(b) carriers’, warehousemen’s, mechanics’,
materialmen’s, repairmen’s and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not overdue by
more than 30 days or are being contested in compliance with Section 5.05;


 


(c) pledges and deposits made in the ordinary
course of business in compliance with workers’ compensation, unemployment
insurance and other social security laws or regulations;


 


(d) deposits to secure the performance of bids,
trade contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature;


 


(e) judgment liens in respect of judgments that
do not constitute an Event of Default under paragraph (k) of Section 7.01;


 


(f) easements, zoning restrictions,
rights-of-way, minor defects or irregularities of title and other similar
encumbrances on real property imposed by law or arising in the ordinary course
of business that do not secure any monetary obligations and do not either
detract from the value of the affected property or interfere with the ordinary
conduct of business of the Borrower or any Subsidiary, in each case in any
material respect;


 


(g) landlords’ and lessors’ and other like Liens
in respect of rent not in default;


 


(h) any Liens shown on the title insurance
policies in favor of the Collateral Agent insuring the Liens of the Mortgages;
and


 


(i) leases or subleases which are subordinate to
the Lien of any Mortgage, provided that the term “Permitted Encumbrances”
shall not include any Lien securing Indebtedness.


 


“Permitted Investments” means:


 


(a) direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by, the
United States of America (or by any agency thereof to the extent such
obligations are backed by the full faith and credit of the United States of
America), in each case maturing within one year from the date of acquisition
thereof;


 


(b) investments in commercial paper maturing
within 365 days from the date of acquisition thereof and having, at such date
of acquisition, a credit rating from S&P or Moody’s of at least’A2 or P2,
respectively;


 


(c) investments in certificates of deposit,
banker’s acceptances and time deposits maturing within 365 days from the date
of acquisition thereof issued or guaranteed by or placed with, and money market
deposit accounts issued or offered by, any domestic office of any commercial
bank organized under the laws of the United States of America or any State
thereof that has a combined capital and surplus and undivided profits of not
less than $500,000,000;


 


17

















 


(d) fully collateralized repurchase agreements
with a term of not more than 30 days  for
securities described in clause (a) above and entered into with a financial
institution satisfying the criteria described in clause (c) above; and


 


(e) investments in money market funds that comply
with the criteria set forth in SEC Rule 2a-7 under the Investment Company
Act of 1940, as amended, substantially all of whose assets are invested in
investments of the type described in clauses (a) through (d) above.


 


“Permitted Investors” means, collectively, (A) Welsh,
Carson, Anderson & Stowe IX, L.P., WCAS Capital Partners IV, L.P. and
its Sponsor Affiliates and (B) (i) Franck Gougeon and each of the
other directors, officers and employees of the Borrower who owned capital stock
of Holdings on the first date the Borrower became a wholly owned subsidiary of
Holdings; (ii) the spouses, ancestors, siblings, descendants (including
children or grandchildren by adoption) and the descendants of any of the
siblings of the Persons referred to in clause (i); (iii) in the event of
the incompetence or death of any of the Persons described in clauses (i) or
(ii), such Person’s estate, executor, administrator, committee or other
personal representative, in each case who at any particular date shall be the
beneficial owner or have the right to acquire, directly or indirectly, capital
stock of the Borrower or Holdings (or any other direct or indirect parent
company of the Borrower); (iv) any trust created for the benefit of the
Persons described in any of clauses (i) through (iii) or any trust
for the benefit of any such trust; or (v) any Person Controlled by any of
the Persons described in any of clauses (i) through (iv).


 


“Permitted Joint Venture” means any investment by which the
Borrower or any Subsidiary Loan Party acquires at least 10% but not more than
80% of the Equity Interests of any Person.


 


“Permitted Joint Venture Loan Party” means any Permitted Joint
Venture which (x) is a subsidiary of the Borrower or any Subsidiary Loan
Party and (y) satisfies the terms of the Collateral and Guarantee
Requirement.


 


“Permitted Security” means (a) common stock of Holdings or (b) Qualified
Preferred Stock, in each case (x) issued to the Permitted Investors for
cash or (y) issued to any other Person that made a direct or indirect
equity investment in the Borrower in connection with the Original Transactions.


 


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


 


“Plan” means any employee pension benefit plan subject to the
provisions of Title IV or Section 302 of ERISA or Section 412 of the
Code, and in respect of which the Borrower or any ERISA Affiliate is (or, if
such plan were terminated, would under Section 4069 of ERISA be deemed to
be) an “employer” as defined in Section 3(5) of ERISA.


 


“Prepayment Event” means:


 


(a) any sale, transfer or other disposition
(excluding pursuant to a sale and leaseback transaction permitted under Section 6.06)
of any property or asset of Holdings, the Borrower or any Subsidiary in excess
of $2,000,000 in any fiscal year, other than dispositions described in clauses
(a), (b), (c) and (d) of Section 6.05; or


 


(b) any casualty or other insured damage to, or
any taking under power of eminent domain or by condemnation or similar
proceeding of, any property or asset of Holdings, the Borrower or any
Subsidiary with a fair value immediately prior to such event equal to or
greater than $1,000,000; or


 


18














 


(c) the issuance by Holdings, the Borrower or any
Subsidiary of any Equity Interests, or the receipt by Holdings, the Borrower or
any Subsidiary of any capital contribution, other than (i) Permitted
Securities or any other capital contribution to Holdings by holders of
Permitted Securities (so long as such capital contribution is not made in
exchange for Equity Interests that are not Permitted Securities), (ii) any
issuance of directors’ qualifying shares, (iii) any issuance by the
Borrower or any Subsidiary of common Equity Interests to, or receipt of any
such capital contribution from, Holdings, the Borrower or any other Subsidiary,
(iv) any issuance to management, employees or consultants of Holdings, the
Borrower or any of the Subsidiaries under any employment or similar agreement,
stock option or stock purchase plan or benefit plan in existence from time to
time; (v) any issuance, the proceeds of which are used to fund a Permitted
Acquisition, (vi) any issuance, the proceeds of which are used to pay non-recurring
cash charges or expenses incurred by the Borrower and its Subsidiaries in an
aggregate amount not to exceed $45,000,000 since the Original Closing Date, (vii) an
IPO or any follow-on public offering or issuance or (viii) any issuance of
Qualified Preferred Stock, the proceeds of which are used to prepay, redeem,
defease, repurchase or otherwise retire any Senior Subordinated Notes or any
Sponsor Preferred Stock; or


 


(d) the incurrence by Holdings, the Borrower or
any Subsidiary of any Indebtedness, other than Indebtedness permitted under Section 6.01
or permitted by the Required Lenders pursuant to Section 9.02.


 


“Prime Rate” means the prime lending rate as set forth on the
British Banking Association Telerate Page 5 (or such other comparable page as
may, in the opinion of the Administrative Agent, replace such page for the
purpose of displaying such rate), as in effect from time to time; each change
in the Prime Rate shall be effective from and including the date such change is
publicly announced as being effective. The Prime Rate is a reference rate and
does not necessarily represent the lowest or best rate actually available.


 


“Pro Forma Basis” means, for purposes of calculating the
Leverage Ratio or the Interest Expense Coverage Ratio for any period, that any
Specified Transaction that has been consummated in such period and the
following transactions in connection therewith shall be deemed to have occurred
as of the first day of such period:


 


(a) income statement items (whether positive or
negative) attributable to the property or Person subject to such Specified
Transaction, in the case of a Permitted Acquisition,


 


(b) any retirement of Indebtedness, and


 


(c) any Indebtedness incurred or assumed by
Holdings, the Borrower or any of their subsidiaries in connection therewith (or
in any Specified Transaction) and if such Indebtedness has a floating or
formula rate, it shall have an implied rate of interest for the applicable
period for purposes of this definition determined by utilizing the rate which
is or would be in effect with respect to such Indebtedness as at the relevant
date of determination;


 


provided
that the foregoing pro forma adjustments may be applied to any such test solely
to the extent that such adjustments are consistent with the definition of “Consolidated
EBITDA” and give effect to events (including cost savings) to the extent they (i) have
been certified by an officer of the Borrower (with reasonably detailed
supporting calculations) as (1) reasonably attributable to, or made possible
by, the transaction and (2) reasonably expected to have a continuing
impact on Holdings and its Subsidiaries or the Borrower and its Subsidiaries,
as applicable; (ii) are supportable and quantifiable by good faith
assumptions believed to be reasonable at the time made or (iii) for all
purposes other than determining the


 


19

















 


“Revolving Loan
Applicable Rate” or the “Term Loan Applicable Rate”, as applicable, relate to
the business that is the subject of such Specified Transaction, and are
reasonably determined by the Borrower to be probable based upon specifically
identifiable actions to be taken within 12 months after the date of such
Specified Transaction, and, in each case are certified by a Financial Officer
(accompanied by reasonably detailed supporting evidence).


 


“Proposed Change” has the meaning set forth in Section 9.02(b).


 


“Qualified Holdings Debt” means unsecured Indebtedness of
Holdings or a Parent issued to Permitted Investors, including additional
unsecured Subordinated Indebtedness that (a) is not subject to any
Guarantee by the Borrower or any Subsidiary Loan Party, (b) does not
mature prior to the date that is 180 days after the Tranche B Term Loan
Maturity Date, (c) has no scheduled amortization or payments of principal
prior to such 180th day, (d) does not require any payments in cash of
interest or other amounts in respect of the principal thereof for at least four
(4) years from the date of issuance or incurrence thereof, and (e) has
subordination provisions and other non-pricing terms and conditions that are (i) no
less favorable to the Lenders than the analogous provisions of the Senior
Subordinated Notes Documents or (ii) customary for senior high yield debt
securities.


 


“Qualified Preferred Stock” means any Sponsor Preferred Stock
and any other preferred stock of Holdings that (a) does not require the
payment of cash dividends (it being understood that cumulative dividends shall
be permitted), (b) is not mandatorily redeemable pursuant to a sinking
fund obligation or otherwise prior to the date that is 180 days after the
Tranche B Term Loan Maturity Date (other than upon an event of default or
change in control, provided that any such payment is subordinated
(whether by contract or pursuant to the charter of Holdings or the certificate
of designations of such preferred stock) in right of payment to the Obligations
on the terms set forth in the certificate of incorporation of Holdings in
existence on the Closing Date or such other terms reasonably satisfactory to
the Administrative Agent), (c) contains no maintenance covenants, other
covenants materially adverse to the Lenders or remedies (other than voting
rights and rights relating to the constitution of the board of directors) and (d) is
convertible only into common equity of Holdings or securities that would
constitute Qualified Preferred Stock.


 


“Ratings Condition” means the Borrower shall have, as of the
most recent applicable determination date, a Moody’s corporate family rating of
B1 or better (with a stable outlook or better) and a S&P corporate credit
rating of BB- or better (with a stable outlook or better).


 


“Register” has the meaning set forth in Section 9.04(b).


 


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


 


“Release” means any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into or through the environment or within or upon any building,
structure, facility or fixture.


 


“Required Lenders” means, at any time, Lenders having Revolving
Exposures, Tranche B Term Loans, Loans in respect of Incremental Extensions of
Credit, if any, and unused Commitments representing more than 50% of the
aggregate Revolving Exposures, outstanding Tranche B Term Loans, outstanding
Loans in respect of Incremental Extensions of Credit, if any, and unused Commitments
at such time.


 


20

















 


“Requirement of Law” means, with respect to any Person, (i) the
charter, articles or certificate of organization or incorporation and bylaws or
other organizational or governing documents of such Person and (ii) any
statute, law, treaty, rule, regulation, order, decree, writ, injunction or
determination of any arbitrator or court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.


 


“Research Agreement” means the Interim Research Agreement, dated
as of May 6, 2005, between the Borrower, Amplatz Research Agreement, Co.
and Dr. Kurt Amplatz.


 


“Restricted Payment” means any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests in Holdings, the Borrower or any Subsidiary, or any payment thereon
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any Equity Interests in Holdings,
the Borrower or any Subsidiary or any option, warrant or other right to acquire
any such Equity Interests in Holdings, the Borrower or any Subsidiary.


 


“Revolving Available Credit” means, at any time, (a) the
then effective Revolving Commitments minus (b) the aggregate
Revolving Exposure at such time.


 


“Revolving Availability Period” means the period from and
including the Original Closing Date to but excluding the earlier of (a) the
Revolving Maturity Date and (b) the date of termination of the Revolving
Commitments.


 


“Revolving Commitment” means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder, expressed as
an amount representing the maximum possible aggregate amount of such Lender’s
Revolving Exposure hereunder, as such commitment may be (a) reduced from
time to time pursuant to Section 2.08 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.
The initial amount of each Lender’s Revolving Commitment is set forth on Schedule
2.01 or in the Assignment and Assumption pursuant to which such Lender
shall have assumed its Revolving Commitment, as applicable. The aggregate
amount of the Lenders’ Revolving Commitments on the Closing Date is
$25,000,000.


 


“Revolving Exposure” means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender’s Revolving
Loans and its LC Exposure and Swingline Exposure at such time.


 


“Revolving Lender” means a Lender with a Revolving Commitment
or, if the Revolving Commitments have terminated or expired, a Lender with
Revolving Exposure.


 


“Revolving Loan” means a Loan made pursuant to clause (c) of
Section 2.01.


 


“Revolving Loan Applicable Rate” means, for any day with respect
to (a) any Revolving Loan that is an ABR Loan or Eurodollar Loan or (b) the
commitment fees payable hereunder in respect of the Revolving Commitments, the
applicable rate per annum set forth below under the caption “ABR Spread”, “Eurodollar
Spread” or “Commitment Fee Rate”, as applicable, in each case, based upon the
Leverage Ratio as of the most recent determination date, provided that
prior to the date of delivery to the Administrative Agent, pursuant to Section 5.01,
of the Borrower’s consolidated financial information for the Borrower’s fiscal
quarter ended June 30, 2006, the “Revolving Loan Applicable Rate” for
purposes of clauses (a) and (b) above shall be the applicable rate
per annum set forth below in Category 1.


 


21

















 




	
  Leverage Ratio

  	
   

  	
  ABR

  Spread

  	
   

  	
  Eurodollar

  Spread

  	
   

  	
  Commitment

  Fee Rate

  	
   

  
	
  Category 1

  > 4.50x

  	
   

  	
  150 bps

  	
   

  	
  250 bps

  	
   

  	
  50 bps

  	
   

  
	
  Category 2

  > 4.00x and < 4.50x

  	
   

  	
  125 bps

  	
   

  	
  225 bps

  	
   

  	
  50 bps

  	
   

  
	
  Category 3

  > 3.00x and < 4.00x

  	
   

  	
  100 bps

  	
   

  	
  200 bps

  	
   

  	
  37.5 bps

  	
   

  
	
  Category 4

  < 3.00x

  	
   

  	
  75 bps

  	
   

  	
  175 bps

  	
   

  	
  37.5 bps

  	
   

  






 


For purposes of the foregoing, (a) the Leverage Ratio shall be
determined on a Pro Forma Basis as of the end of each fiscal quarter of the
Borrower based upon the Borrower’s consolidated financial statements delivered
pursuant to Section 5.01 (a) or (b), and (b) each change in the
Revolving Loan Applicable Rate resulting from a change in the Leverage Ratio
shall be effective during the period commencing on and including the date of
delivery to the Administrative Agent of such consolidated financial statements
indicating such change and ending on the date immediately preceding the
effective date of the next such change, provided that the Leverage
Ratio, for purposes of determining the Revolving Loan Applicable Rate, shall be
deemed to be in Category 1 (i) at any time that an Event of Default, has
occurred and is continuing or (ii) at the option of the Administrative
Agent or at the request of the Required Lenders if the Borrower fails to
deliver the consolidated financial statements required to be delivered by it
pursuant to Section 5.01(a) or (b), during the period from the
expiration of the time for delivery thereof until such consolidated financial
statements are delivered.


 


“Revolving Maturity Date” means July 28, 2011.


 


“S&P” means Standard & Poor’s Ratings Group, Inc.


 


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


 


“Securities Purchase Agreement” means the Securities Purchase
Agreement dated as of July 28, 2005, among the Borrower, the Subsidiaries
listed therein and WCAS Capital Partners IV, L.P. in respect of the Senior
Subordinated Notes.


 


“Security Documents” means the Collateral Agreement, the
Mortgages and each other security agreement or other instrument or document
executed and delivered pursuant to Section 5.12 or 5.13 to secure any of
the Obligations.


 


“Senior Subordinated Notes” means the 10% Senior Subordinated
Notes due 2012 issued by the Borrower on July 28, 2005 in the aggregate
principal amount of $50,000,000 and the Indebtedness represented thereby.


 


“Senior Subordinated Notes Documents” means the Securities
Purchase Agreement and all other instruments, agreements and other documents
evidencing or governing the Senior Subordinated Notes or providing for any
Guarantee or other right in respect thereof.


 


22

















 


“Settlement Agreement” means the Confidential Settlement and
Mutual Release Agreement, dated as of April 20, 2005, among Franck L.
Gougeon, Michael Afremov and Kurt Amplatz.


 


“Specified Interests” means any Equity Interests of Holdings
beneficially owned by Franck Gougeon and, solely with respect to Franck
Gougeon, Permitted Investors described in clauses (B)(ii), (iii), (iv) and
(v) of the definition thereof.


 


“Specified Property” means the property and improvements thereon
owned by the Borrower as of the Closing Date located at 682 Mendelssohn Avenue,
Golden Valley, Minnesota 55427.


 


“Specified Transactions” means (a) any Permitted
Acquisition, (b) any Material Disposition and (c) any proposed
incurrence of Indebtedness in respect of which the Interest Expense Coverage
Ratio or the Leverage Ratio is by the terms of this Agreement required to be
calculated on a Pro Forma Basis.


 


“Sponsor” means Welsh, Carson, Anderson & Stowe IX,
L.P.


 


“Sponsor Affiliate” means (i) each Affiliate of the Sponsor
that is neither an operating company nor a company controlled by an operating
company, (ii) each partner, officer, director, principal or member of the
Sponsor or any Sponsor Affiliate and (iii) any spouse, parent or lineal
descendant (including by adoption) of any of the foregoing who are natural
persons and any trust for the benefit of such persons.


 


“Sponsor Preferred Stock” means all preferred Equity Interests
of Holdings held by the Sponsor and any Sponsor Affiliate as of the Closing
Date, together with any accumulation, accretion or other increase in the amount
thereof pursuant to the terms thereof or the charter of Holdings.


 


“Statutory Reserve Rate” means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the bank serving as the
Administrative Agent is subject with respect to the Adjusted LIBO Rate, for
eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in
Regulation D of the Board). Such reserve percentages shall include those
imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any
comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.


 


“Stock Purchase Agreement” means the Amended and Restated Stock
Purchase Agreement, dated as of July 28, 2005, among the Sponsor, the
co-investors of the Sponsor listed on the signature pages thereto, Franck
L. Gougeon and the Borrower.


 


“Stockholders Agreement” means the Stockholders Agreement, dated
as of July 28, 2005, among the Sponsor, Franck L. Gougeon and the
Borrower.


 


“Subordinated Indebtedness” means, Indebtedness of the Borrower
or any Subsidiary that is contractually subordinated to the Obligations.


 


“subsidiary” means, with respect to any Person (the “parent”)
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which


 


23

















 


would be consolidated
with those of the parent in the parent’s consolidated financial statements if
such financial statements were prepared in accordance with GAAP as of such
date, as well as any other corporation, limited liability company, partnership,
association or other entity of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary
voting power or, in the case of a partnership, more than 50% of the general
partnership interests are, as of such date, owned, controlled or held.


 


“Subsidiary” means any subsidiary of the Borrower, other than
any Permitted Joint Venture that is not a Permitted Joint Venture Loan Party.


 


“Subsidiary Loan Party” means any Domestic Subsidiary (other
than any Inactive Subsidiary for which the Borrower has not satisfied the
Collateral and Guarantee Requirement).


 


“Supermaiority Lenders” means Lenders having Revolving
Exposures, Tranche B Term Loans, Loans in respect of Incremental Extensions of
Credit, if any, and unused Commitments representing more than 75% of the
aggregate Revolving Exposures, outstanding Tranche B Term Loans, outstanding
Loans in respect of Incremental Extensions of Credit, if any, and unused
Commitments at such time.


 


“Swap Agreement” means any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial
or pricing indices or measures of economic, financial or pricing risk or value
or any similar transaction or any combination of these transactions, provided
that no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of the Borrower or the Subsidiaries shall be a Swap Agreement.


 


“Swingline Exposure” means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Percentage of the aggregate
Swingline Exposure at such time.


 


“Swingline Lender” means Lehman Commercial Paper Inc., in its
capacity as lender of Swingline Loans hereunder.


 


“Swingline Loan” means a Loan made pursuant to Section 2.04.


 


“Taxes” means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.


 


“Term Loan Applicable Rate” means, for any day with respect to
any Tranche B Term Loan that is an ABR Loan or Eurodollar Loan, the applicable
rate per annum set forth below under the caption “ABR Spread” or ‘‘Eurodollar
Spread”, as applicable, in each case, based upon the Leverage Ratio as of the
most recent determination date, provided that prior to the date of
delivery to the Administrative Agent, pursuant to Section 5.01, of the
Borrower’s consolidated financial information for the Borrower’s fiscal quarter
ended June 30, 2006, the “Term Loan Applicable Rate” for purposes of the
foregoing shall be the applicable rate per annum set forth below in Category 1.


 


24

















 




	
  Leverage

  Ratio

  	
   

  	
  ABR

  Spread

  	
   

  	
  Eurodollar

  Spread

  	
   

  
	
  Category 1

  >4.50x

  	
   

  	
  125 bps

  	
   

  	
  225 bps

  	
   

  
	
  Category 2

  >3.00x and < 4.50x

  	
   

  	
  100 bps

  	
   

  	
  200 bps

  	
   

  
	
  Category 3

  < 3.00x (and satisfaction of the Ratings
  Condition)

  	
   

  	
  75 bps

  	
   

  	
  175 bps

  	
   

  






 


For purposes of the foregoing, (a) the Leverage Ratio shall be
determined on a Pro Forma Basis as of the end of each fiscal quarter of the
Borrower based upon the Borrower’s consolidated financial statements delivered
pursuant to Section 5.01(a) or (b), and (b) each change in the
Term Loan Applicable Rate resulting from a change in the Leverage Ratio shall
be effective during the period commencing on and including the date of delivery
to the Administrative Agent of such consolidated financial statements
indicating such change and ending on the date immediately preceding the
effective date of the next such change, provided that the Leverage
Ratio, for purposes of determining the Term Loan Applicable Rate, shall be
deemed lo be in Category 1 (i) at any time that an Event of Default has
occurred and is continuing or (ii) at the option of the Administrative
Agent or at the request of the Required Lenders if the Borrower fails to
deliver the consolidated financial statements required to be delivered by it
pursuant to Section 5.01(a) or (b), during the period from the
expiration of the time for delivery thereof until such consolidated financial
statements are delivered.


 


“Total Indebtedness” means, as of any date, an amount equal to (a) aggregate
principal amount of all Indebtedness of the Borrower and its Subsidiaries at
such date minus (b) cash and Cash Equivalents owned by the Loan Parties on
such date in an aggregate amount not to exceed $25,000,000, determined on a
consolidated basis in accordance with GAAP.


 


“Tranche B Term Loan”: as defined in Section 2.01.


 


“Tranche B Term Loan Commitment”: as to any Lender, the
obligation of such Lender, if any, to make a Tranche B Term Loan to the
Borrower hereunder in a principal amount not to exceed the amount set forth
under the heading “Tranche B Term Loan Commitment” opposite such Lender’s name
on Schedule 1 to the Lender Addendum delivered by such Lender, or, as the case
may be, in the Assignment and Acceptance pursuant to which such Lender became a
party hereto, as the same may be changed from time to time pursuant to the
terms hereof. The original aggregate amount of the Tranche B Term Loan
Commitments is $215,000,000.


 


“Tranche B Term Loan Lender”: each Lender that has a tranche B
Term Loan Commitment or is the holder of a Tranche B Term Loan.


 


“Tranche B Term Loan Maturity Date”: means April 28, 2013; provided,
that notwithstanding the foregoing, the Tranche B Term Loan Maturity Date will
be January 28, 2012 if both the Senior Subordinated Notes and the Sponsor
Preferred Stock have been not been repaid, redeemed, repurchased, defeased (on
terms and conditions satisfactory to the Administrative Agent) or otherwise retired
in full in one or more transactions otherwise permitted under this Agreement on
or prior to January 28, 2012.


 


25














 


“Tranche B Term Loan Percentage”: as to any Tranche B Term Loan
Lender at any time, the percentage which such Lender’s Tranche B Term Loan
Commitment then constitutes of the aggregate Tranche B Term Loan Commitments
(or, at any time after the Closing Date, the percentage which the aggregate
principal amount of such Lender’s Tranche B Term Loans then outstanding
constitutes of the aggregate principal amount of the Tranche B Term Loans then
outstanding).


 


“Transactions” has the meaning set forth in the preamble to this
Agreement.


 


“Type”, when used in reference to any Loan or Borrowing, refers
to whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.


 


“Unreimbursed Amount” means all unpaid and matured reimbursement
or repayment obligations of the Borrower to the Issuing Bank with respect to
amounts drawn under Letters of Credit.


 


“wholly owned” means with respect to any Person, a subsidiary of
such Person all the outstanding Equity Interests of which (other than (x) directors’
qualifying shares and (y) shares issued to foreign nationals to the extent
required by applicable law) are owned by such Person and/or by one or more
wholly owned subsidiaries of such Person.


 


“Withdrawal Liability” means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan,
as such terms are defined in ER1SA.


 


SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class (e.g.,
a “Revolving Loan”) or by Type (e.g., a “Eurodollar Loan”) or by Class and
Type (e.g., a “Eurodollar Revolving Loan”). Borrowings also may be
classified and referred to by Class (e.g., a “Revolving Borrowing”)
or by Type (e.g., a “Eurodollar Borrowing”) or by Class and Type (e.g.,
a “Eurodollar Revolving Borrowing”).


 


SECTION 1.03. Terms Generally. The definitions
of terms herein shall apply equally to the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include”, “includes”
and “including” shall be deemed to be followed by the phrase “without
limitation”. The word “will” shall be construed to have the same meaning and
effect as the word “shall”. Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed
to include such Person’s successors and assigns, (c) the words “herein”, “hereof”
and “hereunder”, and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement, (e) the words “asset” and “property” shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights and (f) any reference herein to a Tranche B Term Loan
shall be construed to include the “Term Loans” (as defined in the Existing
Credit Agreement) to the extent such reference relates to the period prior to
the Closing Date.


 


SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP as in effect from time to time, provided
that if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision (including any definition) hereof to
eliminate the effect


 


26

















 


of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision
(including any definition) hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.


 


SECTION 1.05. Specified Transactions. Notwithstanding
anything to the contrary herein, solely for purposes of determining the
Interest Expense Coverage Ratio and the Leverage Ratio, with respect to any
period during which any Specified Transaction occurs, such ratios shall be
calculated with respect to such period and such Specified Transaction (and all
other Specified Transactions that have been consummated during such period) on
a Pro Forma Basis.


 


SECTION 1.06. Letter of Credit Amounts. Unless otherwise
specified herein, the amount of a Letter of Credit at any time shall be deemed
to be the stated amount of such Letter of Credit in effect at such time; provided,
however, that with respect to any Letter of Credit that, by its terms or
the terms of any Issuer Document related thereto, provides for one or more
automatic increases in the stated amount thereof, the amount of such Letter of
Credit shall be deemed to be the maximum stated amount of such Letter of Credit
after giving effect to all such increases, whether or not such maximum stated
amount is in effect at such time.


 


ARTICLE II


 


The Credits


 


SECTION 2.01. Loans and Commitments. Subject to the terms
and conditions set forth herein, each Lender agrees (a) to make term loans
to the Borrower on the Closing Date (each, a “Tranche B Term Loan”) in a
principal amount not exceeding such Lender’s Tranche B Term Loan Commitment and
(b)(i) on the Closing Date all Revolving Loans under (and as defined in)
the Existing Credit Agreement shall be deemed to be Revolving Loans outstanding
under this Agreement, (ii) the Revolving Commitments shall be increased
from $15,000,000 to $25,000,000 and (iii) to make Revolving Loans to the
Borrower from time to time during the Revolving Availability Period in an
aggregate principal amount that will not result in such Lender’s Revolving
Exposure exceeding such Lender’s Revolving Commitment. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrower
may borrow, prepay and reborrow Revolving Loans. Amounts repaid or prepaid in
respect of Tranche B Term Loans may not be reborrowed.


 


SECTION 2.02. Loans and Borrowings.


 


(a) Each Loan (other than a Swingline Loan) shall be made as part
of a Borrowing consisting of Loans of the same Class and Type made by the
Lenders ratably in accordance with their respective Commitments of the applicable
Class. The failure of any Lender to make any Loan required to be made by it
shall not relieve any other Lender of its obligations hereunder, provided
that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender’s failure to make Loans as required.


 


(b) Subject to Section 2.14, each Revolving Borrowing and
Tranche B Term Loan Borrowing shall be comprised entirely of ABR Loans or
Eurodollar Loans as the Borrower may request in accordance herewith, provided
that all Borrowings made on the Closing Date must be made as ABR Borrowings.
Each Swingline Loan shall be an ABR Loan.


 


27

















 


(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $500,000 and not less than $1,000,000. At the time that each ABR
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $250,000 and not less than $500,000. Borrowings of more
than one Type and Class may be outstanding at the same time. There shall
not at any time be more than a total of 10 Eurodollar Borrowings outstanding.
Notwithstanding anything to the contrary herein, an ABR Revolving Borrowing or
Swingline Loan may be in an aggregate amount (i) that is equal to the
entire unused balance of the aggregate Revolving Commitments or (ii) that
is required to finance the reimbursement of an LC Disbursement as contemplated
by Section 2.05(e).


 


(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Revolving Maturity Date or the Tranche B Term Loan Maturity Date, as
applicable.


 


SECTION 2.03. Requests for Borrowings. To request a
Revolving Borrowing or Tranche B Term Loan Borrowing, the Borrower shall notify
the Administrative Agent of such request in writing (a) in the case of a
Eurodollar Borrowing, not later than 12:00 noon, New York City time, three
Business Days before the date of the proposed Borrowing or (b) in the case
of an ABR Borrowing, not later than 12:00 noon, New York City time, one
Business Day before the date of the proposed Borrowing, provided that
any such notice of an ABR Revolving Borrowing to finance the reimbursement of
an LC Disbursement as contemplated by Section 2.05(e) may be given
not later than 10:00 a.m., New York City time, on the date of the proposed
Borrowing. Each written Borrowing Request shall specify the following
information in compliance with Section 2.02:


 


(i)        whether
the requested Borrowing is to be a Revolving Borrowing or a Tranche B Term Loan
Borrowing;


 


(ii)       the
aggregate amount of such Borrowing;


 


(iii)      the
date of such Borrowing, which shall be a Business Day;


 


(iv)      whether
such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;


 


(v)       in the
case of a Eurodollar Borrowing, the initial Interest Period to be applicable
thereto, which shall be a period contemplated by the definition of the term “Interest
Period”; and


 


(vi)      the
location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.06.


 


If no election as
to the Type of Borrowing is specified, then the requested Borrowing shall be an
ABR Borrowing. If no Interest Period is specified with respect to any requested
Eurodollar Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month’s duration. Promptly following receipt of a
Borrowing Request in accordance with this Section 2.03, the Administrative
Agent shall advise each Lender of the details thereof and of the amount of such
Lender’s Loan to be made as part of the requested Borrowing.


 


28

















 


SECTION 2.04. Swingline Loans.


 


(a) Subject to the terms and conditions set forth herein, the
Swingline Lender agrees to make Swingline Loans to the Borrower from time to
time during the Revolving Availability Period, in an aggregate principal amount
at any time outstanding that will not result in (i) the aggregate
principal amount of outstanding Swingline Loans exceeding $5,000,000 or (ii) the
aggregate Revolving Exposures exceeding the aggregate Revolving Commitments, provided
that the Swingline Lender shall not be required to make a Swingline Loan to
refinance an outstanding Swingline Loan. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrower may borrow;
prepay and reborrow Swingline Loans.


 


(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request in writing, not later than 2:00 p.m.,
New York City time, on the day of a proposed Swingline Loan. Each such notice
shall be irrevocable and shall specify the requested date (which shall be a
Business Day) and amount of the requested Swingline Loan. The Administrative
Agent will promptly advise the Swingline Lender of any such notice received
from the Borrower. The Swingline Lender shall make each Swingline Loan
available to the Borrower by means of a credit to the general deposit account
of the Borrower maintained with the Swingline Lender (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m.,
New York City time, on the requested date of such Swingline Loan.


 


(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 12:00 noon, New York City time, on any
Business Day require the Revolving Lenders to acquire participations on such
Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which Revolving
Lenders will participate. Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each Revolving Lender,
specifying in such notice such Lender’s Applicable Percentage of such Swingline
Loan or Swingline Loans. Each Revolving Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the Swingline Lender, such Lender’s
Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving
Lender acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments,
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Each Revolving Lender shall comply with
its obligation under this paragraph by wire transfer of immediately available
funds, in the same manner as provided in Section 2.06 with respect to
Loans made by such Lender (and Section 2.06 shall apply, mutatis  mutandis,
to the payment obligations of the Revolving Lenders), and the Administrative
Agent shall promptly pay to the Swingline Lender the amounts so received by it
from the Revolving Lenders. The Administrative Agent shall notify the Borrower
of any participations in any Swingline Loan acquired pursuant to this paragraph,
and thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from the Borrower (or other party on behalf of the
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender
of the proceeds of a sale of participations therein shall be promptly remitted
to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Revolving
Lenders that shall have made their payments pursuant to this paragraph and to
the Swingline Lender, as their interests may appear, provided that any
such payment so remitted shall be repaid to the Swingline Lender or to the
Administrative Agent, as applicable, if and to the extent such payment is
required to be refunded to the Borrower for any reason. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower of any default in the payment thereof.


 


29

















 


SECTION 2.05. Letters of Credit.


 


(a) (i) General. On the Closing Date (i) all
Letters of Credit under the Existing Credit Agreement shall continue to be
Letters of Credit outstanding under this Agreement and (ii) subject to the
terms and conditions set forth herein, the Borrower may request the issuance of
Letters of Credit for its own account (or for the account of any of its
subsidiaries so long as the Borrower is a co-applicant), in a form reasonably
acceptable to the Administrative Agent and the Issuing Bank, at any time and
from time to time during the Revolving Availability Period. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the Borrower to, or entered into by the Borrower with, the Issuing
Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control.


 


(ii) The Issuing Bank shall not issue any Letter of Credit, if:


 


(A) the expiry date of such requested Letter of
Credit would occur more than one year after the date of issuance, unless the
Required Lenders have approved such expiry date; provided, however,
that any Letter of Credit with a one-year term may provide for the renewal
thereof for additional one-year periods (which in no event shall extend beyond
the expiry date referred to in (B) below); or


 


(B) the expiry date of such requested Letter of
Credit would occur after the Letter of Credit Expiration Date, unless all the
Lenders have approved such expiry date.


 


(iii) The Issuing Bank shall not be under any obligation to issue
any Letter of Credit if:


 


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


 


(B) except as otherwise agreed by the
Administrative Agent and the Issuing Bank, such Letter of Credit is in an
initial stated amount less than $25,000, in the case of a standby Letter of
Credit; or


 


(C) such Letter of Credit is to be denominated in
a  currency other than Dollars.


 


(D) a default of any Lender’s obligations to fund
under Section 2.05(c) exists or any Lender is at such time a
Defaulting Lender hereunder, unless the L/C Issuer has entered into
satisfactory arrangements with the Borrower or such Lender to eliminate the L/C
Issuer’s risk with respect to such Lender


 


(iv) The Issuing Bank shall not amend any Letter of Credit if the
Issuing Bank would not be permitted at such time to issue such Letter of Credit
in its amended form under the terms hereof.


 


30

















 


(v) The Issuing Bank shall be under no obligation to amend any
Letter of Credit if:


 


(A) the Issuing Bank would have no obligation at
such time to issue such Letter of Credit in its
amended form under the terms hereof, or


 


(B) the beneficiary of such Letter of Credit does
not accept the proposed amendment to such Letter of Credit.


 


(b) Notice of Issuance, Amendment. Renewal. Extension: Certain
Conditions. To request the issuance of a Letter of Credit (or the
amendment, renewal or extension of an outstanding Letter of Credit), the
Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the Issuing
Bank) to the Issuing Bank and the Administrative Agent (reasonably in advance
of the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on
which such Letter of Credit is to expire (which shall comply with paragraph (c) of
this Section 2.05), the amount of such Letter of Credit, the name and
address of the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of Credit. If
requested by the Issuing Bank, the Borrower also shall submit a letter of
credit application on the Issuing Bank’s standard form in connection with any
request for a Letter of Credit. A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or extension
of each Letter of Credit the Borrower shall be deemed to represent and warrant
that), after giving effect to such issuance, amendment, renewal or extension, (i) the
LC Exposure shall not exceed $10,000,000 and (ii) the aggregate Revolving
Exposures shall not exceed the aggregate Revolving Commitments.


 


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


 


The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim
of noncompliance with the Borrower’s instructions or other irregularity, the
Borrower will immediately notify the Issuing Bank. The Borrower shall be
conclusively deemed to have waived any such claim against the Issuing Bank and
its correspondents unless such notice is given aforesaid.


 


(c) Participations. By the issuance of a Letter of Credit
(or an amendment to a Letter of Credit increasing the amount thereof) and
without any further action on the part of the Issuing Bank or the Lenders, the
Issuing Bank hereby grants to each Revolving Lender, and each Revolving Lender
hereby acquires from the Issuing Bank, a participation in such Letter of Credit
equal to such Lender’s Applicable Percentage of the aggregate amount available
to be drawn under such Letter of Credit. In consideration and in furtherance of
the foregoing, each Revolving Lender hereby absolutely and unconditionally
agrees to pay to the Administrative Agent, for the account of the Issuing Bank,
such Lender’s Applicable Percentage of each LC Disbursement (an “LC Advance”)
made by the Issuing Bank


 


31

















 


and not reimbursed by the
Borrower on the date due as provided in paragraph (e) of this Section 2.05,
or of any reimbursement payment required to be refunded to the Borrower for any
reason. Each Revolving Lender acknowledges and agrees that its obligation to
acquire participations pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.


 


(d) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse
such LC Disbursement by paying to the Administrative Agent an amount equal to
such LC Disbursement not later than 12:00 noon, New York, City time, on (i) the
date that such LC Disbursement is made, if the Borrower shall have received
notice of such LC Disbursement prior to 10:00 a.m., New York City time, on
such date, or, if such notice has not been received by the Borrower prior to
such time on such date, then not later than 12:00 noon, New York City time, on
the Business Day that the Borrower receives such notice, if such notice is
received prior to 10:00 a.m., New York City time, on the day of receipt,
or (ii) the Business Day immediately following the day that the Borrower
receives such notice, if such notice is not received prior to such time on the
day of receipt; provided that, the Borrower may, subject to the
conditions to borrowing set forth herein, request (and, if the Borrower fails
to reimburse such LC Disbursement when due, the Borrower shall be deemed to
have requested) in accordance with Section 2.03 or 2.04 that such LC
Disbursement be financed with an ABR Revolving Borrowing or Swingline Loan in an
equivalent amount and, to the extent so financed, the Borrower’s obligation to
make such payment shall be discharged and replaced by the resulting ABR
Revolving Borrowing or Swingline Loan (and the time for reimbursement of such
LC Disbursement shall automatically be extended to the Business Day following
such request or deemed request). If the Borrower fails to make such payment
when due, the Administrative Agent shall notify each Revolving Lender of the
applicable LC Disbursement, the payment then due from the Borrower in respect
thereof and such Lender’s Applicable Percentage thereof. Promptly following
receipt of such notice, each Revolving Lender shall pay to the Administrative
Agent its Applicable Percentage of the payment then due from the Borrower, in
the same manner as provided in Section 2.06 with respect to Loans made by
such Lender (and Section 2.06 shall apply, mutatis  mutandis,
to the payment obligations of the Revolving Lenders), and the Administrative
Agent shall promptly pay to the Issuing Bank the amounts so received by it from
the Revolving Lenders. Promptly following receipt by the Administrative Agent
of any payment from the Borrower pursuant to this paragraph, the Administrative
Agent shall distribute such payment to the Issuing Bank or, to the extent that
Revolving Lenders have made payments pursuant to this paragraph to reimburse
the Issuing Bank, then to such Lenders and the Issuing Bank as their interests
may appear. Any payment made by a Revolving Lender pursuant to this paragraph to
reimburse the Issuing Bank for any LC Disbursement (other than the funding of
ABR Revolving Loans or a Swingline Loan as contemplated above) shall not
constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.


 


(e) Repayment of Participations.


 


(i) At any time after the Issuing Bank has made a payment under
any Letter of Credit and has received from any Lender such Lender’s LC Advance
in respect of such payment in accordance with Section 2.05(c), if the
Administrative Agent receives for the account of the Issuing Bank any payment
in respect of the related Unreimbursed Amount or interest thereon (whether
directly from the Borrower or otherwise, including proceeds of cash collateral
applied thereto by the Administrative Agent), the Administrative Agent will
distribute to such Lender its Applicable Percentage thereof (appropriately
adjusted, in the case of interest payments, to reflect the period of time
during which such Lender’s LC Advance was outstanding) in the same funds as
those received by the Administrative Agent.


 


32














 


(ii) If any payment received by the Administrative Agent for the
account of the Issuing Bank pursuant to Section 2.05(d) is required to be
returned (including pursuant to any settlement entered into by the Issuing Bank
in its discretion), each Lender shall pay to the Administrative Agent for the
account of the Issuing Bank its Applicable Percentage thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the
date such amount is returned by such Lender, at a rate per annum equal to the
Federal Funds Rate from time to time in effect. The obligations of the Lenders
under this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.


 


(f) Obligations Absolute. The Borrower’s obligation to
reimburse LC Disbursements as provided in paragraph (d) of this Section 2.05
shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Letter of Credit or this Agreement, or any term or
provision therein, (ii) any draft or other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid in any respect or
any statement therein being untrue or inaccurate in any respect, (iii) payment
by the Issuing Bank under a Letter of Credit against presentation of a draft or
other document that does not comply with the terms of such Letter of Credit, or
(iv) any other event or circumstance whatsoever, whether or not similar to
any of the foregoing, that might, but for the provisions of this Section 2.05,
constitute a legal or equitable discharge of, or provide a right of setoff
against, the Borrower’s obligations hereunder. Neither the Administrative
Agent, the Lenders nor the Issuing Bank, nor any of their Related Parties,
shall have any liability or responsibility by reason of or in connection with
the issuance or transfer of any Letter of Credit or any payment or failure to
make any payment thereunder (irrespective of any of the circumstances referred
to in the preceding sentence), or any error, omission, interruption, loss or
delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or
any consequence arising from causes beyond the control of the Issuing Bank, provided
that the foregoing shall not be construed to excuse the Issuing Bank from
liability to the Borrower to the extent of any direct damages (as opposed to
consequential or punitive damages, claims in respect of which are hereby waived
by the Borrower to the extent permitted by applicable law) suffered by the
Borrower that are caused by the Issuing Bank’s failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or willful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof,
the parties agree that, with respect to documents presented that appear on
their face to be in substantial compliance with the terms of a Letter of
Credit, the Issuing Bank may, in its sole discretion, either accept and make
payment upon such documents without responsibility for further investigation,
regardless of any notice or information to the contrary, or refuse to accept
and make payment upon such documents if such documents are not in strict
compliance with the terms of such Letter of Credit.


 


Each Lender and the Borrower agree that, in paying any drawing under a
Letter of Credit, the Issuing Bank shall not have any responsibility to obtain
any document (other than any sight draft, certificates and documents expressly
required by the Letter of Credit) or to ascertain or inquire as to the validity
or accuracy of any such document or the authority of the Person executing or
delivering any such document. None of the Issuing Bank, the Administrative
Agent, any of their respective Related Parties nor any correspondent,
participant or assignee of the Issuing Bank shall be liable to any Lender for (i) any
action taken or omitted in connection herewith at the request or with the
approval of the Lenders or the Required Lenders, as applicable; (ii) any
action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Issuer Document. The Borrower hereby assumes all risks of


 


33

















 


the acts or
omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided, however, that this assumption is not
intended to, and shall not, preclude the Borrower’s pursuing such rights and
remedies as it may have against the beneficially or transferee at law or under
any other agreement.


 


(g) Disbursement Procedures. The Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. The Issuing Bank shall
promptly notify the Administrative Agent and the Borrower in writing of such
demand for payment and whether the Issuing Bank has made or will make an LC
Disbursement thereunder, provided that any failure to give or delay in
giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Revolving Lenders with respect to any such
LC Disbursement in accordance with paragraph (e) of this Section 2.05.


 


(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans, provided
that, if the Borrower fails to reimburse such LC Disbursement when due pursuant
to paragraph (e) of this Section 2.05, then Section 2.13(c) shall
apply. Interest accrued pursuant to this paragraph shall be for the account of
the Issuing Bank, except that interest accrued on and after the date of payment
by any Revolving Lender pursuant to paragraph (d) of this Section 2.05
to reimburse the Issuing Bank shall be for the account of such Lender to the
extent of such payment.


 


(i) Replacement of the Issuing Bank. The Issuing Bank may
be replaced at any time by written agreement among the Borrower, the
Administrative Agent and the successor Issuing Bank. The Administrative Agent
shall notify the Lenders of any such replacement of the Issuing Bank. At the
time any such replacement shall become effective, the Borrower shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.12(b).
From and after the effective date of any such replacement, (i) the
successor Issuing Bank shall have all the rights and obligations of the Issuing
Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term “Issuing Bank” shall be
deemed to refer to such successor or to any previous Issuing Bank, or to such
successor and all previous Issuing Banks, as the context shall require. After
the replacement of the Issuing Bank hereunder, the replaced Issuing Bank shall
remain a party hereto and shall continue to have all the rights and obligations
of the Issuing Bank under this Agreement with respect to Letters of Credit
issued by it prior to such replacement, but shall not be required to issue
additional Letters of Credit.


 


(j) Cash Collateralization. If any Event of Default shall
occur and be continuing, on the Business Day that the Borrower receives notice
from the Administrative Agent or the Required Lenders (or, if the maturity of
the Loans has been accelerated, Revolving Lenders with LC Exposure representing
greater than 50% of the aggregate LC Exposure) demanding the deposit of cash
collateral pursuant to this paragraph, the Borrower shall deposit in an account
with the Collateral Agent, in the name of the Collateral Agent and for the
benefit of the Lenders, an amount in cash equal to 105% of the LC Exposure as
of such date plus any accrued and unpaid interest thereon, provided
that the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without
demand or other notice of any kind, upon the occurrence of any Event of Default
with respect to the Borrower described in paragraph (h) or (i) of Section 7.01.
The Borrower also shall deposit cash collateral pursuant to this paragraph as
and to the extent required by Section 2.1 l(b). Each such deposit shall be
held by the Collateral Agent as collateral for the payment and performance of
the obligations of the Borrower under this Agreement. The Collateral Agent
shall have


 


34

















 


exclusive dominion
and control, including the exclusive right of withdrawal, over such account.
Other than any interest earned on the investment of such deposits, which
investments shall be made at the option and sole discretion of the
Administrative Agent and at the Borrower’s risk and expense, such deposits
shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse the Issuing Bank for LC Disbursements for
which it has not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the Borrower for
the LC Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Lenders with LC Exposure
representing greater than 50% of the aggregate LC Exposure), be applied to
satisfy other obligations of the Borrower under this Agreement. If the Borrower
is required to provide an amount of cash collateral hereunder as a result of
the occurrence of an Event of Default, such amount (to the extent not applied
as aforesaid) shall be returned to the Borrower within three Business Days
after all Events of Default have been cured or waived.


 


(k) Additional Issuing Banks. The Borrower may at any time,
and from time to time, designate one or more additional Lenders to act as an
issuing bank under this Agreement with the consent of the Administrative Agent
(which consent shall not be unreasonably withheld) and such Lender. Any Lender
designated as an issuing bank pursuant to this Section 2.05(k) shall
be deemed to be and shall have all the rights and obligations of an “Issuing
Bank” hereunder.


 


SECTION 2.06. Funding of Borrowings.


 


(a) Each Lender shall make each Loan to be made by it hereunder on
the proposed date thereof by wire transfer of immediately available funds by
12:00 noon, New York City time, to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders, provided
that Swingline Loans shall be made as provided in Section 2.04. The
Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower
maintained with the Administrative Agent in New York City and designated by the
Borrower in the applicable Borrowing Request, provided that ABR
Revolving Loans made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(e) shall be remitted by the Administrative
Agent to the Issuing Bank.


 


(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed Borrowing that such Lender will not make
available to the Administrative Agent such Lender’s share of such Borrowing,
the Administrative Agent may assume that such Lender has made such share
available on such date in accordance with paragraph (a) of this Section 2.06
and may, in reliance upon such assumption and in its sole discretion, make
available to the Borrower a corresponding amount. In such event, if a Lender
has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally
agree to pay to the Administrative Agent forthwith on demand such corresponding
amount With interest thereof for each day from and including the date such
amount is made available to the Borrower to but excluding the date of payment
to the Administrative Agent, at (i) in the case of such Lender, the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation or (ii) in the case of the Borrower, the interest
rate applicable to ABR Loans. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s Loan
included in such Borrowing.


 


SECTION 2.07. Interest Elections.


 


(a) Each Revolving Borrowing and Tranche B Term Loan Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Borrowing,


 


35

















 


shall have an
initial Interest Period as specified in such Borrowing Request or as designated
by Section 2.03. Thereafter, the Borrower may elect to convert such
Borrowing to a different Type or to continue such Borrowing and, in the case of
a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in
this Section 2.07. The Borrower may elect different options with respect
to different portions of the affected Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing. This Section 2.07 shall not apply to
Swingline Borrowings, which may not be converted or continued.


 


(b) To make an election pursuant to this Section 2.07, the
Borrower shall notify the Administrative Agent of such election in writing by
the time that a Borrowing Request would be required under Section 2.03 if
the Borrower were requesting a Revolving Borrowing of the Type resulting from
such election to be made on the effective date of such election.


 


(c) Each written Interest Election Request shall specify the
following information in compliance with Section 2.02:


 


(i)        the
Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) below
shall be specified for each resulting Borrowing);


 


(ii)       the
effective date of the election made pursuant to such Interest Election Request,
which shall be a Business Day;


 


(iii)      whether
the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
and


 


(iv)      if the
resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a
period contemplated. by the definition of the term “Interest Period”.


 


If any such
Interest Election Request requests a Eurodollar Borrowing but does not specify
an Interest Period, then the Borrower shall be deemed to have selected an
Interest Period of one month’s duration.


 


(d) Promptly following receipt of an Interest Election Request,
the Administrative Agent shall advise each Lender of the details thereof and of
such Lender’s portion of each resulting Borrowing.


 


(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an BAR Borrowing.


 


(f) Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Borrower, then, so long as an
Event of Default is continuing, (i) no outstanding Borrowing may be
converted to or continued as a Eurodollar Borrowing and (ii) unless
repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the
end of the Interest Period applicable thereto.


 


36

















 


SECTION 2.08. Termination and Reduction of Commitments.


 


(a) Unless previously terminated, (i) the Tranche B Term Loan
Commitments shall terminate at 5:00 p.m., New York City time, on the
Closing Date and (ii) the Revolving Commitments shall terminate on the
Revolving Maturity Date.


 


(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments of any Class, provided that (i) each
reduction of the Commitments of any Class shall be in an amount that is an
integral multiple of $250,000 and not less than $500,000 and (ii) the
Borrower shall not terminate or reduce the Revolving Commitments if, after
giving effect to any concurrent prepayment of the Revolving Loans in accordance
with Section 2.11, the aggregate Revolving Exposures would exceed the
aggregate Revolving Commitments.


 


(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of
this Section 2.08 at least three Business Days prior to the effective date
of such termination or reduction, specifying such election and the effective
date thereof. Promptly following receipt of any notice, the Administrative
Agent shall advise the Lenders of the contents thereof. Each notice delivered
by the Borrower pursuant to this Section 2.08 shall be irrevocable, provided
that a notice of termination of the Revolving Commitments delivered by the
Borrower may state that such notice is conditioned upon the effectiveness of
other credit facilities, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. Any termination or
reduction of the Commitments of any Class shall be permanent. Each
reduction of the Commitments of any Class shall be made ratably among the
Lenders in accordance with their respective Commitments of such Class.


 


SECTION 2.09. Repayment of Loans; Evidence of Debt.


 


(a) The Borrower hereby unconditionally promises to pay (i) to
the Administrative Agent for the account of each Lender the then unpaid
principal amount of each Revolving Loan of such Lender on the Revolving
Maturity Date, (ii) to the Administrative Agent for the account of each
Lender the then unpaid principal amount of each Tranche B Term Loan of such
Lender as provided in Section 2.10 and (iii) the then unpaid
principal amount of each Swingline Loan on the earlier of the Revolving
Maturity Date and the first date after such Swingline Loan is made that is the
15th or last day of a calendar month and is at least two Business Days after
such Swingline Loan is made; provided that on each date that a Revolving
Borrowing is made, the Borrower shall repay all Swingline Loans then
outstanding.


 


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


 


(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and
Type thereof and the Interest Period 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 for the account of the Lenders
and each Lender’s share thereof.


 


(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section 2.09 shall be prima
facie evidence of the existence and amounts of the obligations recorded
therein, provided that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner
affect the obligation of the Borrower to repay the Loans in accordance with the
terms of this Agreement.


 


37

















 


(e) Any Lender may request that Loans of any Class made by it
be evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by
one or more promissory notes in such form payable to the order of the payee
named therein (or, if such promissory note is a registered note, to such payee
and its registered assigns).


 


SECTION 2.10. Amortization of Tranche B Term Loans.


 


(a) Subject to adjustment pursuant to paragraph (c) of this Section 2.10,
the Borrower shall repay Tranche B Term Loan Borrowings on each date set forth
below in the aggregate principal amount set forth opposite such date:


 




	
  Date

  	
   

  	
  Amount

  	
   

  
	
  June 30, 2006

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  September 30, 2006

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  December 31, 2006

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  March 30, 2007

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  June 30, 2007

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  September 30, 2007

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  December 31, 2007

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  March 31, 2008

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  June 30, 2008

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  September 30, 2008

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  December 31, 2008

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  March 31, 2009

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  June 30, 2009

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  September 30, 2009

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  December 31, 2009

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  March 31, 2010

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  June 30, 2010

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  September 30, 2010

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  December 31, 2010

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  March 31, 2011

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  June 30, 2011

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  September 30, 2011

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  December 31, 2011

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  March 31, 2012

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  June 30, 2012

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  September 30, 2012

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  December 31, 2012

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  March 31, 2013

  	
   

  	
  $

  	
  537,500

  	
   

  
	
  Tranche B Term Loan Maturity Date

  	
   

  	
  $

  	
  199,950,000

  	
   

  






 


38

















 


(b) To the extent not previously paid, all Tranche B Term Loans
shall be due and payable on the Tranche B Term Loan Maturity Date.


 


(c) Any mandatory prepayment of a Tranche B Term Loan Borrowing
shall be applied (i) first, to reduce, in the direct order of
maturity, the scheduled repayments of the Tranche B Term Loan Borrowing to be
made pursuant to this Section 2.10 on the four consecutive scheduled
payment dates next following the date of such prepayment unless and until each
such scheduled repayment has been eliminated as a result of reductions
hereunder, and (ii) second, to reduce ratably the remaining
scheduled repayments of the then outstanding amounts thereof. Any optional
prepayment of a Tranche B Term Loan borrowing shall be applied as directed by
the Borrower to the Administrative Agent.


 


SECTION 2.11. Prepayment of Loans.


 


(a) The Borrower shall have the right at any time and from time to
time to prepay any Borrowing in whole or in part, subject to the requirements
of this Section 2.11 and Section 2.16.


 


(b) In the event and on such occasion that the aggregate Revolving
Exposures exceeds the aggregate Revolving Commitments, the Borrower shall
prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings
are outstanding, deposit cash collateral in an account with the Collateral
Agent pursuant to Section 2.05(j)) in an aggregate amount equal to such
excess.


 


(c) In the event and on each occasion that any Net Proceeds are
received by or on behalf of Holdings, the Borrower or any Subsidiary in respect
of any Prepayment Event, the Borrower shall, promptly after such Net Proceeds
are received by Holdings, the Borrower or such Subsidiary (and in any event not
later than the fifth Business Day after such Net Proceeds are received), prepay
Tranche B Term Loan Borrowings in an aggregate amount equal to:


 


(x) in the case of a prepayment event described
in clause (c) of the definition of the term “Prepayment Event”, (I) 50%
of such Net Proceeds if the Leverage Ratio at the end of the immediately
preceding fiscal quarter for which financial statements are available is
greater than 5.00 to 1.00, (II) 25% of such Net Proceeds if the Leverage
Ratio at the end of the immediately preceding fiscal quarter for which
financial statements are available is greater than 4.25 to 1.00 and less than
or equal to 5.00 to 1,00 and (III) none of such Net Proceeds if the
Leverage Ratio at the end of the immediately preceding fiscal quarter is less
than or equal to 4.25 to 1.00, and


 


(y) in the case of all other Prepayment Events,
100% of such Net Proceeds,


 


provided
that in the case of any event described in clause (a) or (b) of the
definition of the term “Prepayment Event”, if the Borrower shall deliver to the
Administrative Agent a certificate of a Financial Officer to the effect that
the Borrower and the Subsidiaries intend to apply the Net Proceeds from such
event (or a portion thereof specified in such certificate), within 365 days
after receipt of such Net Proceeds, to acquire or replace real property,
equipment or other tangible assets (excluding inventory other than inventory
ancillary to the acquisition or replacement tangible assets) to be used in the
business of the Borrower and the Subsidiaries, and certifying that no Default
has occurred and is continuing, then no prepayment shall be required pursuant
to this paragraph in respect of the Net Proceeds specified in such certificate,
except to the extent of any such Net Proceeds therefrom that have not been so
applied or contractually committed in writing by the end of such 365-day period
(and, if so contractually committed in writing but not applied prior to the end
of such 365-day period, applied within 90 days of the end of such period),
promptly after which time a prepayment shall be required in an amount equal to
such Net Proceeds that have not been so applied.


 


39

















 


(d) Following the end of each fiscal year of the Borrower,
commencing with the fiscal year ending December 31, 2006, the Borrower
shall prepay Tranche B Term Loan Borrowings in an aggregate amount equal to:


 


(x) the excess of (A) 50% of Excess Cash
Flow over (B) prepayments of Tranche B Term Loans under Section 2.11 (a) during
such fiscal year (other than prepayments with the proceeds from sales of
Permitted Securities, an IPO and Qualified Holdings Debt) for any fiscal year
for which the Leverage Ratio at the end of such fiscal year is greater than
4.50 to 1.00,


 


(y) the excess of (A) 25% of Excess Cash
Flow over (B) prepayments of Tranche B Term Loans under Section 2.1l(a) during
such fiscal year (other than prepayments with the proceeds from sales of
Permitted Securities, an IPO and Qualified Holdings Debt) for any fiscal year
for which the Leverage Ratio at the end of such fiscal year is less than or
equal to 4.50 to 1.00 and greater than 4.00 to 1.00, and


 


(z) none of Excess Cash Flow for any fiscal year
for which the Leverage Ratio at the end of such fiscal year is less than or
equal to 4.00 to 1.00.


 


Each prepayment pursuant to this paragraph shall be made within five
Business Days of the date on which financial statements are delivered pursuant
to Section 5.01 with respect to the fiscal year for which Excess Cash Flow
is being calculated (and in any event within 95 days after the end of such
fiscal year).


 


(e) Prior to any optional or mandatory prepayment of Borrowings
hereunder, the Borrower shall determine in accordance with Section 2.10(c) the
Borrowing or Borrowings to be prepaid and shall specify such determination in
the notice of such prepayment pursuant to paragraph (f) of this Section 2.11.


 


(f) The Borrower shall notify the Administrative Agent (and, in
the case of prepayment of a Swingline Loan, the Swingline Lender) in writing of
any prepayment hereunder (i) in the case of prepayment of a Eurodollar
Borrowing, not later than 12:00 noon, New York City time, three Business Days
before the date of prepayment, (ii) in the case of prepayment of an ABR
Borrowing, not later than 12:00 noon, New York City time, one Business Day
before the date of prepayment or (iii) in the case of prepayment of a
Swingline Loan, not later than 2:00 p.m., New York City time, on the date
of prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date, the principal amount of each Borrowing or portion thereof to
be prepaid and, in the case of a mandatory prepayment, a reasonably detailed
calculation of the amount of such prepayment, provided that, if a notice
of optional prepayment is given in connection with a conditional notice of
termination of the Revolving Commitments as contemplated by Section 2.08,
then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.08. Promptly following receipt of any
such notice (other than a notice relating solely to Swingline Loans), the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of an advance of a Borrowing of the same Type as provided
in Section 2.02, except as necessary to apply fully the required amount of
a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably
to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied
by accrued interest to the extent required by Section 2.13 but shall in no
event include premium or penalty.


 


40

















 


SECTION 2.12. Fees.


 


(a) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a commitment fee, which shall accrue at the Revolving
Loan Applicable Rate on the average daily unused amount of each Revolving
Commitment of such Lender during the period from and including the Original
Closing Date to but excluding the date on which the aggregate Revolving
Commitments terminate. Accrued commitment fees shall be payable in arrears in
respect of the Revolving Commitments, on the last Business Day of March, June, September and
December of each year and on the date on which the Revolving Commitments
terminate, commencing on the first such date to occur after the Original
Closing Date. All commitment fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). For purposes of computing commitment
fees with respect to Revolving Commitments, a Revolving Commitment of a Lender
shall be deemed to be used to the extent of the outstanding Revolving Loans and
LC Exposure of such Lender (and the Swingline Exposure of such Lender shall be
disregarded for such purpose).


 


(b) The Borrower agrees to pay (i) to the Administrative
Agent for the account of each Revolving Lender a participation fee with respect
to its participations in Letters of Credit, which shall accrue at the same
Revolving Loan Applicable Rate used to determine the interest rate applicable
to Eurodollar Revolving Loans (minus 0.125% per annum) on the average daily
amount of such Lender’s LC Exposure (excluding any portion thereof attributable
to unreimbursed LC Disbursements) during the period from and including the
Original Closing Date to but excluding the later of the date on which such
Lender’s Revolving Commitment terminates and the date on which such Lender
ceases to have any LC Exposure, and (ii) to the Issuing Bank a fronting
fee, which shall accrue at a rate equal to 0.125% per annum on the average
daily amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Original Closing Date to but excluding the later of the date of termination of
the Revolving Commitments and the date on which there ceases to be any LC
Exposure, as well as the Issuing Bank’s standard fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing
of drawings thereunder. Participation fees and fronting fees shall be payable
on the last Business Day of March, June, September and December of
each year, commencing on the first such date to occur after the Original
Closing Date, provided that all such fees shall be payable on the date
on which the Revolving Commitments terminate and any such fees accruing after
the date on which the Revolving Commitments terminate shall be payable on
demand. Any other fees payable to the Issuing Bank pursuant to this paragraph
shall be payable within 10 days after demand. All participation fees and
fronting fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).


 


(c) The Borrower agrees to pay to the Administrative Agent, for
its own account, fees payable in the amounts and at the times separately agreed
upon between the Borrower and the Administrative Agent.


 


(d) All fees payable hereunder shall be paid on the dates due, in
immediately, available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees and participation fees, to the Lenders entitled thereto. Fees
paid shall not be refundable under any circumstances.


 


SECTION 2.13. Interest.


 


(a) The Loans comprising each ABR Borrowing (including each
Swingline Loan) shall bear interest at the Alternate Base Rate plus the
Revolving Loan Applicable Rate or the Term Loan Applicable Rate, as applicable.


 


41














 


(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Revolving Loan Applicable Rate or the Term Loan
Applicable Rate, as applicable.


 


(c) Notwithstanding the foregoing, if any principal of or interest
on any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2%  plus the rate otherwise applicable
to such Loan as provided in the preceding paragraphs of this Section 2.13
or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Revolving Loans as provided in paragraph (a) of this Section 2.13.


 


(d) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Revolving Commitments, provided that (i) interest
accrued pursuant to paragraph (c) of this Section 2.13 shall be
payable on demand, (ii) in the event of any repayment or prepayment of any
Loan (other than a prepayment of an ABR Revolving Loan prior to the end of the
Revolving Availability Period), accrued interest on the principal amount repaid
or prepaid shall be payable on the date of such repayment or prepayment and (iii) in
the event of any conversion of any Eurodollar Loan prior to the end of the
current Interest Period therefor, accrued interest on such Loan shall be
payable on the effective date of such conversion.


 


(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate
shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The applicable Alternate
Base Rate or Adjusted LIBO Rate shall be determined by the Administrative
Agent, and such determination shall be conclusive absent manifest error.


 


SECTION 2.14. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:


 


(a) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or


 


(b) the Administrative Agent is advised by the Required Lenders
that the Adjusted LIBO Rate for such Interest Period will  not adequately and fairly reflect the
cost to such Leaders of making or maintaining their Loans included in such
Borrowing for such Interest Period;


 


then the
Administrative Agent shall give notice thereof to the Borrower and the Lenders
in writing as promptly as practicable thereafter and, until the Administrative
Agent notifies the Borrower and the Lenders that the circumstances giving rise
to such notice no longer exist, (i) any Interest, Election Request that
requests the conversion of any Borrowing to, or continuation of any Borrowing
as, a Eurodollar Borrowing shall be ineffective and (ii) if any Borrowing
Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR
Borrowing.


 


SECTION 2.15. Increased Costs.


 


(a) If any Change in Law shall:


 


42

















 


(i) impose, modify or deem applicable any
reserve, special deposit or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing Bank;
or


 


(ii) impose on any Lender or the Issuing Bank or
the London interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or participation
therein;


 


and the result of
any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any
such Loan) or to increase the cost to such Lender or the Issuing Bank of
participating in, issuing or maintaining any Letter of Credit or to reduce the
amount of any sum received or receivable by such Lender or the Issuing Bank
hereunder (whether of principal, interest or otherwise), then the Borrower will
pay to such Lender or the Issuing Bank, as applicable, such additional amount
or amounts as will compensate such Lender or the Issuing Bank, as applicable,
for such additional costs incurred or reduction suffered.


 


(b) If any Lender or the Issuing Bank determines that any Change
in Law regarding capital requirements has or would have the effect of reducing
the rate of return on such Lender’s or the Issuing Bank’s capital or on the
capital of such Lender’s or the Issuing Bank’s holding company, if any, as a
consequence of this Agreement or the Loans made by, or participations in
Letters of Credit held by, such Lender, or the Letters of Credit issued by the
Issuing Bank, to a level below that which such Lender or the Issuing Bank or
such Lender’s or the Issuing Bank’s holding company could have achieved but for
such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s
policies and the policies of such Lender’s or the Issuing Bank’s holding
company with respect to capital adequacy), then from time to time the Borrower
will pay to such Lender or the Issuing Bank, as applicable, such additional
amount or amounts as will compensate such Lender or the Issuing Bank or such
Lender’s or the Issuing Bank’s holding company for any such reduction suffered.


 


(c) A certificate of a Lender or the Issuing Bank setting forth
the amount or amounts necessary to compensate such Lender or the Issuing Bank
or its holding company, as applicable, as specified in paragraph (a) or (b) of
this Section 2.15 shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender or the
Issuing Bank, as applicable, the amount shown as due on any such certificate
within 10 days after receipt thereof.


 


(d) Failure or delay on the part of any Lender or the Issuing Bank
to demand compensation pursuant to this Section 2.15 shall not constitute
a waiver of such Lender’s or the Issuing Bank’s right to demand such
compensation, provided that the Borrower shall not be required to
compensate a Lender or the Issuing Bank pursuant to this Section 2.15 for
any increased costs or reductions incurred more than 270 days prior to the date
that such Lender or the Issuing Bank, as applicable, notifies the Borrower of
the Change in Law giving rise to such increased costs or reductions and of such
Lender’s or the Issuing Bank’s intention to claim compensation therefor, provided
further, that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the 270-day period referred to above shall
be extended to include the period of retroactive effect thereof.


 


SECTION 2.16.  Break
Funding Payments. In the event of (a) the payment of any principal of
any Eurodollar Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default), (b) the conversion
of any Eurodollar Loan other than on the last day of the Interest Period
applicable thereto, (c) the failure to borrow, convert, continue or prepay
any Revolving Loan or Tranche B Term Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.11 (f) and is revoked in accordance


 


43

















 


therewith), or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.19,
then, in any such event, the Borrower shall compensate each Lender for the
loss, cost and expense attributable to such event. In the case of a Eurodollar
Loan, such loss, cost or expense to any Lender shall be deemed to include an
amount determined by such Lender to be the excess, if any, of (i) the
amount of interest that would have accrued on the principal amount of such Loan
had such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the last
day of the then current Interest Period therefor (or, in the case of a failure
to borrow, convert or continue, for the period that would have been the
Interest Period for such Loan), over (ii) the amount of interest that
would accrue on such principal amount for such period at the interest rate that
such Lender would bid were it to bid, at the commencement of such period, for
dollar deposits of a comparable amount and period from other banks in the
eurodollar market. A certificate of any Lender setting forth any amount or
amounts that such Lender is entitled to receive pursuant to this Section 2.16
shall be delivered to the Borrower and shall be conclusive absent manifest
error. The Borrower shall pay such Lender the amount shown as due on any such
certificate within 10 days after receipt thereof. Notwithstanding the
foregoing, no additional amounts shall be due and payable pursuant to this Section 2.16
to the extent that on the relevant due date the Borrower deposits in a
Prepayment Account an amount equal to any payment of Eurodollar Loans otherwise
required to be made on a date that is not the last day of the applicable Interest
Period; provided that on the last day of the applicable Interest Period,
the Administrative Agent shall be authorized, without any further action by or
notice to or from the Borrower or any other Loan Party, to apply such amount to
the prepayment of such Eurodollar Loans. For purposes of this Agreement, the
term “Prepayment Account” shall mean a non-interest bearing account established
by the Borrower with the Administrative Agent and over which the Administrative
Agent shall have exclusive dominion and control, including the right of
withdrawal for application in accordance with this Section 2.16.


 


SECTION 2.17. Taxes.


 


(a) Any and all payments by or on account of any obligation of the
Borrower hereunder or under any other Loan Document shall be made free and
clear of and without deduction for any Indemnified Taxes or Other Taxes, provided
that if the Borrower shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.17) the
Administrative Agent, Lender or Issuing Bank (as applicable) receives an amount
equal to the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant Governmental Authority in accordance with
applicable law.


 


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


 


(c) The Borrower shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within 30 days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or the Issuing Bank, as applicable, on or
with respect to any payment by or on account of any obligation of the Borrower
hereunder or under any other Loan Document (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under
this Section 2.17) and any penalties, interest and reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified
Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate as to the amount of such payment
or liability delivered to the Borrower by a Lender or the Issuing Bank, or by
the


 


44

















 


Administrative
Agent on its own behalf or on behalf of a Lender or the Issuing Bank, shall be
conclusive absent manifest error.


 


(d) As soon as practicable after any payment of Indemnified Taxes
or Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, if any,
a copy of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.


 


(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), on or prior to the Original Closing Date in
the case of each Foreign Lender that is a signatory hereto, and on the date of assignment
pursuant to which it becomes a Lender in the case of each other Lender and from
time to time thereafter as reasonably requested by either of the Borrower or
the Administrative Agent, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will
permit such payments to be made without withholding or at a reduced rate, provided
that such Foreign Lender has received written notice from the Borrower advising
it of the availability of such exemption or reduction and supplying all
applicable documentation.


 


(f) If the Administrative Agent or a Lender determines, in its
sole discretion, that it has received a refund of any Indemnified Taxes or
Other Taxes as to which it has been indemnified by the Borrower or with respect
to which the Borrower has paid additional amounts pursuant to this Section 2.17,
it shall pay over such refund to the Borrower (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower under this
Section 2.17 with respect to the Indemnified Taxes or Other Taxes giving
rise to such refund), net of all out-of-pocket expenses of the Administrative
Agent or such Lender and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund), provided
that the Borrower, upon the request of the Administrative Agent or such Lender,
agrees to repay the amount paid over to the Borrower plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to
the Administrative Agent or such Lender in the event the Administrative Agent
or such Lender is required to repay such refund to such Governmental Authority.
This Section 2.17 shall not be construed to require the Administrative
Agent or any Lender to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to the Borrower or any other
Person.


 


SECTION 2.18. Payments Generally; Pro Rata Treatment: Sharing
of Setoffs.


 


(a) The Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest,
fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15,
2.16 or 2.17, or otherwise) prior to the time expressly required hereunder or
under such other Loan Document for such payment (or, if no such time is
expressly required, prior to 3:00 p.m., New York City time), on the date
when due, in immediately available funds, without setoff or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 745 Seventh Avenue,
New York, New York, except payments to be made directly to the Issuing Bank or
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons
entitled thereto and payments pursuant to other Loan Documents shall be made to
the Persons specified therein. The Administrative Agent shall distribute any
such payments received by it for the account of any other


 


45

















 


Person to the
appropriate recipient promptly following receipt thereof. If any payment under
any Loan Document shall be due on a day that is not a Business Day, the date
for payment shall be extended to the next succeeding Business Day, and, in the
case of any payment accruing interest, interest thereon shall be payable for
the period of such extension. All payments under each Loan Document shall be
made in dollars.


 


(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second,
towards payment of principal and unreimbursed LC Disbursements then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements then due  to such parties.


 


(c) If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or interest
on any of its Revolving Loans, Tranche B Term Loans or participations in LC
Disbursements or Swingline Loans resulting in such Lender receiving payment of
a greater proportion of the aggregate amount of its Revolving Loans, Tranche B
Term Loans and participations in LC Disbursements and Swingline Loans and
accrued interest thereon than the proportion received by any other Lender, then
the Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Revolving Loans, Tranche B Term Loans and
participations in LC Disbursements and Swingline Loans of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by
the Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans, Tranche B Term Loans and
participations in LC Disbursements and Swingline Loans, provided that (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and
the purchase price restored to the extent of such recovery, without interest,
and (ii) the provisions of this paragraph shall not be construed to apply
to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or participations in LC Disbursements to any assignee or participant,
other than to the Borrower or any Subsidiary or Affiliate thereof (as to which
the provisions of this paragraph shall apply). The Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.


 


(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption and in its sole
discretion, distribute to the Lenders or the Issuing Bank, as applicable, the
amount due. In such event, if the Borrower has not in fact made such payment,
then each of the Lenders or the Issuing Bank, as applicable, severally agrees
to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or Issuing Bank with interest thereon, for each day
from and including the date such amount is distributed to it to but excluding
the date of payment to the Administrative Agent, at the greater of the Federal
Funds Effective Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation.


 


(e) If any Lender shall fail to make any payment required to be
made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(a), 2.18(d) or
9.03(c), then the Administrative Agent may, in its


 


46

















 


discretion
(notwithstanding any contrary provision hereof); apply any amounts thereafter
received by the Administrative Agent for the account of such Lender to satisfy
such Lender’s obligations under such Sections until all such unsatisfied
obligations are fully paid.


 


SECTION 2.19. Mitigation Obligations; Replacement of Lenders.


 


(a) If any Lender requests compensation under Section 2.15,
or if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 2.17,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as
applicable, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment.


 


(b) If any Lender requests compensation under Section 2.15,
or if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without recourse
(in accordance with and subject to the restrictions contained in Section 9.04),
all its interests, rights and obligations under this Agreement to an assignee
that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment), provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent (and
if a Revolving Commitment is being assigned, the Issuing Bank and the Swingline
Lender), which consent shall not unreasonably be withheld, (ii) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and participations in LC Disbursements and Swingline
Loans, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder, from the assignee (to the extent of such outstanding principal
and accrued interest and fees) or the Borrower (in the case of all other
amounts) and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.15 or payments required to be made
pursuant to Section 2.17, such assignment will result in a material
reduction in such compensation or payments. A Lender shall not be required to
make any such assignment and delegation if, prior thereto, as a result of a
waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.


 


SECTION 2.20. Incremental Extensions of Credit. Subject to
the terms and conditions set forth herein, the Borrower may at any time and
from time to time during the Revolving Availability Period or until the Tranche
B Term Loan Maturity Date, as applicable, by notice to the Administrative Agent
(whereupon the Administrative Agent shall promptly deliver a Copy to each of the
Lenders), request to add additional term loans or additional revolving
commitments (together, the “Incremental Extensions of Credit”) in
minimum principal amounts of $10,000,000; provided that such amount may
be less than $10,000,000 if such amount represents all the remaining
availability under the aggregate principal amount set forth below; provided,
further, that (x) immediately prior to and after giving effect to
any Incremental Facility Amendment (as defined below), no Default has occurred
or is continuing or shall result therefrom and (y) the Borrower shall be
in compliance on a Pro Forma Basis with the Financial Performance Covenants
recomputed as of the last day of the most recently ended fiscal quarter of the
Borrower for which financial statements are available. The Incremental
Extensions of Credit:


 


(a) shall be in an aggregate principal amount not exceeding
$75,000,000,


 


47

















 


(b) shall rank pari  passu in right of payment and
right of security in respect of the Collateral with the Revolving Loans and
Tranche B Term Loans and


 


(c) other than amortization, pricing or maturity date, shall have
the same terms as the Tranche B Term Loans or Revolving Commitments, as
applicable, existing immediately prior to the effectiveness of such Incremental
Facility Amendment (the “Existing Extensions of Credit”);


 


provided
that (i) if the applicable interest rate margin (which, for such purposes
only, shall be deemed to include all upfront of similar fees or original issue
discount payable to all Lenders providing such Incremental Extensions of
Credit) relating to the Incremental Extensions of Credit that are revolving
loans and/or term loans, as applicable, exceeds the Revolving Loan Applicable
Rate or Term Loan Applicable Rate, as applicable (which, for such purposes
only, shall be deemed to include all upfront or similar fees or original issue
discount payable to all Lenders providing such Existing Extensions of Credit)
relating to the Revolving Loans and the Tranche B Term Loans, respectively, by
more than 0.50%, the Revolving Loan Applicable Rate or Term Loan Applicable
Rate, as applicable, relating to the applicable Existing Extensions of Credit
shall be adjusted to be equal to the applicable interest rate margin (which,
for such purposes only, shall be deemed to include all upfront or similar fees
or original issue discount payable to all Lenders providing such Incremental
Extensions of Credit) relating to the applicable Incremental Extensions of
Credit minus 0.50%, (ii) the Incremental Extensions of Credit in
the form of term loans shall not have a final maturity date earlier than, the
Tranche B Term Loan Maturity Date, (iii) the Incremental Extensions of
Credit in the form of revolving loans shall not have a final maturity date
earlier than the Revolving Maturity Date, (iv) the Incremental Extensions
of Credit in the form other loans shall not have a weighted average life that
is shorter than that of the then-remaining weighted average life of the
Existing Extensions of Credit that are Tranche B Term Loans and (v) the
Incremental Extensions of Credit in the form of revolving loans shall not
require any mandatory commitment reductions, mandatory prepayments or scheduled
payments other than those applicable to the Revolving Loans and Revolving
Commitments. The Borrower shall by written notice offer each Lender providing
Existing Extensions of Credit (an “Existing Lender”) the opportunity for
no less than ten (10) Business Days after delivery of the notice to commit
to provide its pro  rata portion (based on the amount of its
outstanding Term Loans or outstanding Revolving Loans and unused Revolving
Commitments, as applicable, on the date of such notice) of any requested
Incremental Extension of Credit, provided that no Existing Lender shall
be obligated to provide any Incremental Extension of Credit unless it so
agrees. Any additional bank, financial institution, Existing Lender or other
Person that elects to extend Incremental Extensions of Credit shall be
reasonably satisfactory to the Borrower and the Administrative Agent and, in
the case of Incremental Extensions of Credit in the form of revolving loans,
the Issuing Bank and the Swing Line Lender (any such bank, financial
institution, Existing Lender or other Person being called an “Additional Lender”)
and shall become a Lender under this Agreement pursuant to an amendment (an “Incremental
Facility Amendment”) to this Agreement giving effect to the modifications
permitted by this Section 2.20 and, as appropriate, the other Loan
Documents and executed by the Borrower, each Additional Lender and the
Administrative Agent. Commitments in respect of Incremental Extensions of
Credit shall be Commitments under this Agreement. An Incremental Facility
Amendment may, without the consent of any other Lenders, effect such amendments
to this Agreement and the other Loan Documents as may be necessary or
appropriate, in the opinion of the Administrative Agent, to effect the
provisions of this Section 2.20 (including voting provisions applicable to
the Additional Lenders comparable to the provisions of clause (B) of the
second proviso of Section 9.02(b)). The effectiveness of any Incremental
Facility Amendment shall be subject to the satisfaction on the date thereof
(each, an “Incremental Facility Closing Date”) of each of the conditions
set forth in Section 4.02 (it being understood that all references to “the
date of such Borrowing” in such Section 4.02 shall be deemed to refer to
the Incremental Facility Closing Date). The proceeds of the Incremental
Extensions of Credit shall be used for working capital and general corporate
purposes (including Permitted Acquisitions).


 


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ARTICLE III


 


Representations and Warranties


 


The Borrower represents and warrants to the Lenders that:


 


SECTION 3.01. Organization: Power. Each of Holdings, the
Borrower and the Subsidiaries (a) is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization, (b) has
the power and authority and all governmental rights, qualifications, approvals,
authorizations, permits, accreditations, licenses and franchises material to
the business of the Borrower and the Subsidiaries taken as a whole that are
necessary to own its assets, to carry on its business as now conducted and as
proposed to be conducted and to execute, deliver and perform its obligations
under each Loan Document to which it is a party and (c) except where the
failure to do so, individually or in the aggregate, is not reasonably likely to
result in a Material Adverse Effect, is qualified to do business in, and is in
good standing in, every jurisdiction where such qualification is required.


 


SECTION 3.02. Authorization: Enforceability. The
Transactions to be entered into by each Loan Party have been duly authorized by
all necessary corporate or other action and, if required, stockholder action.
This Agreement has been duly executed and delivered by each of Holdings and the
Borrower and constitutes, and each other Loan Document to which any Loan Party
is to be a party, when executed and delivered by such Loan Party, will
constitute, a legal, valid and binding obligation of Holdings, the Borrower or
such Loan Party, as applicable, enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors’ rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.


 


SECTION 3.03. Governmental Approvals: No Conflicts. The
Transactions (a) do not require any consent or approval of, registration
or filing with, or any other action by, any Governmental Authority, except such
as have been obtained or made and are in full force and effect and except
filings necessary to perfect Liens created under the Loan Documents, (b) will
not violate any Requirement of Law applicable to Holdings, the Borrower or any
of the Subsidiaries, as applicable, (c) will not violate or result in a
default under any indenture or other material agreement or instrument binding
upon Holdings, the Borrower or any of the Subsidiaries or its assets, or give
rise to a right thereunder to require any payment to be made by Holdings, the
Borrower or any of the Subsidiaries or give rise to a right of, or result in,
termination, cancellation or acceleration of any material obligation
thereunder, and (d) will not result in the creation or imposition of any
Lien on any asset of Holdings, the Borrower or any of the Subsidiaries, except
Liens created under the Loan Documents. No certifications by any Governmental
Authority are required for operation of the business of the Borrower and the
Subsidiaries that are not in place, except for such certifications and
agreements, the absence of which do not materially and adversely affect the
operation of the business.


 


SECTION 3.04. Financial Condition: No Material Adverse Change.


 


(a) The Borrower has
heretofore furnished to the Lenders its consolidated balance sheet and
consolidated statements of operations and comprehensive income, stockholders’
equity and cash flows (i) as of and for the fiscal year ended December 31,
2005, reported on by Ernst & Young LLP, independent public accountants.
Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the Borrower and
the Subsidiaries as of such dates and for such periods in accordance with GAAP
consistently applied, subject to year-end audit , adjustments and the absence
of footnotes in the case of the statements referred to in clause (ii) above.


 


49














 


(b) The Borrower has heretofore furnished to the Lenders its pro
forma consolidated balance sheet as of the Closing Date, prepared giving effect
to the Transactions as if the Transactions had occurred on such date. Such pro
forma consolidated balance sheet (i) has been prepared in good faith based
on the same assumptions used to prepare the pro forma financial statements
provided to the Lenders (which assumptions are believed by the Borrower to be
reasonable), (ii) accurately reflects all adjustments necessary to give
effect to the Transactions and (iii) presents fairly, in all material
respects, the pro forma financial position of the Borrower and the Subsidiaries
as of the Closing Date as if the Transactions had occurred on such date.


 


(c) Except with respect to the FCPA Claims or as disclosed in the
financial statements referred to above or the notes thereto, after giving
effect to the Transactions, none of the Borrower or its Subsidiaries has, as of
the Closing Date, any material direct or contingent liabilities.


 


(d) No event, change or condition has occurred that has had, or is
reasonably likely to have, a material adverse effect on the business,
operations, assets, liabilities, financial condition or results of operations
of Holdings, the Borrower and the Subsidiaries, taken as a whole, since December 31,
2005; provided, that, to the extent covered by a cash investment by the
Permitted Investors or other Persons (other than any Loan Party or Subsidiary
thereof) directly or indirectly in the Borrower, the FCPA Claims shall not be
deemed to have a material adverse effect on the business, operations, assets,
liabilities, financial condition or results of operations of Holdings, the
Borrower and the Subsidiaries, taken as a whole.


 


SECTION 3.05. Properties.


 


(a) Each of Holdings, the Borrower and the Subsidiaries has good
title to, or valid leasehold interests in, all its real and personal property
material to its business (including its Mortgaged Properties), free and clear
of all Liens, except for Permitted Encumbrances and minor defects in title that
do not interfere in any material respect with its ability to conduct its
business or to utilize such properties for their intended purposes.


 


(b) Each of Holdings, the Borrower and the Subsidiaries owns,
licenses or possesses the right to use all trademarks, trade names, copyrights,
patents and other intellectual property material to its business, and the use
thereof by Holdings, the Borrower and the Subsidiaries to their knowledge has
not been asserted to infringe upon the rights of any other Person.


 


(c) Schedule 3.05 sets forth the address of each real
property that is owned or leased by Holdings, the Borrower or any of the
Subsidiaries as of the Closing Date.


 


(d) As of the Closing Date, neither Holdings or the Borrower nor
any of the Subsidiaries has received written notice of, or has knowledge of,
any pending or contemplated condemnation proceeding affecting any Mortgaged
Property or any sale or disposition thereof in lieu of condemnation. As of the
Closing Date, neither any Mortgaged Property nor any interest therein is
subject to any right of first refusal, option or other contractual right to
purchase such Mortgaged Property or interest therein.


 


SECTION 3.06. Litigation and Environmental Matters.


 


(a) There are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to the knowledge of
Holdings, the Borrower or any Subsidiary, threatened against or affecting
Holdings, the Borrower or any Subsidiary that are reasonably likely to have a
Material Adverse Effect or that are reasonably likely to adversely affect in
any material


 


50

















 


respect the
ability of the Loan Parties to consummate the Transactions or the other
transactions contemplated hereby; provided, that, to the extent covered
by a cash investment by the Permitted Investors or other Persons (other than
any Loan Party or Subsidiary thereof) directly or indirectly in the Borrower,
the FCPA Claims shall not be deemed to have a material adverse effect on the
business, operations, assets, liabilities, financial condition or results of
operations of Holdings, the Borrower and the Subsidiaries, taken as a whole.


 


(b) Neither Holdings, the Borrower nor any Subsidiary is subject
to any judgment or pending or threatened legal claim involving Intellectual
Property (as defined in the Collateral Agreement) owned by any third party,
and, to the knowledge of Holdings, the Borrower or any Subsidiary, there is no
basis for any such claim, that individually or in the aggregate could
reasonably be expected to result in a Material Adverse Effect.


 


(c) Except with respect to any other matters that, individually or
in the aggregate, are not reasonably likely to result in a Material Adverse
Effect, neither Holdings, the Borrower nor any Subsidiary (i) has failed
to comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability or (iii) knows of any basis
for any Environmental Liability.


 


SECTION 3.07. Compliance with Laws and Agreements. (a) Except
with respect to any matters that, individually or in the aggregate, are not
material to the business of the Borrower and the Subsidiaries, taken as a
whole, and except for the FCPA Claims, each of Holdings, the Borrower and the
Subsidiaries is in compliance with all material Requirements of Law applicable
to it or its property and all material indentures, agreements and other
instruments binding (b) Holdings, the Borrower and any Subsidiary and, to
the knowledge of Borrower all entities and individuals acting on their behalf,
possess and are in compliance with all material certificates, licenses, approvals,
waivers, consents, authorizations and permits issued by, and have made all
declarations and filings with, the appropriate federal, state, local or foreign
regulatory authorities reasonably necessary to conduct its business, including
without limitation all those that may be required by the United States Food and
Drug Administration (“FDA”). Holdings, the Borrower and any Subsidiary are in
all material respects in compliance with all statutes, rules, regulations,
ordinances, orders, decrees and guidance documents applicable to the ownership,
testing, development, manufacture, packaging, processing, recordkeeping, use,
distribution, marketing, labeling, promotion, sale, offer for sale, storage,
import, export or disposal of any product or product candidate subject to, or
potentially subject to, regulation under the Federal Food, Drug and Cosmetic
Act (“FFDCA”) and implementing regulations. All studies, tests and preclinical
and clinical trials conducted by or on behalf of Holdings, the Borrower and any
Subsidiary are being and were, if completed, conducted in compliance with
experimental protocols, procedures and controls pursuant to accepted
professional scientific standards and applicable local, state and federal laws,
rules, regulations and guidance documents, including, but not limited to, the
FFDCA and its implementing regulations upon it or its property.


 


SECTION 3.08. Investment and Holding Company Status.
Neither Holdings, the Borrower nor any Subsidiary is (a) an “investment
company” as defined in, or subject to regulation under, the Investment Company
Act of 1940, as amended or (b) a “holding company” as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935, as
amended.


 


SECTION 3.09. Taxes. Each of Holdings, the Borrower and the
Subsidiaries has timely filed or caused to be filed all Federal and other
material Tax returns and reports required to have been filed and has paid or
caused to be paid all Taxes required to have been paid by it, except (a) any
Taxes that are being contested in good faith by appropriate proceedings and for
which Holdings, the Borrower or such Subsidiary, as applicable, has set aside
on its books adequate reserves in accordance


 


51

















 


with GAAP or (b) to
the extent that the failure to do so is not reasonably likely to result in a
Material Adverse Effect.


 


SECTION 3.10. ERISA. No ERISA Event has occurred or is
reasonably likely to occur that, when taken together with all other such ERISA
Events for which liability is reasonably likely to occur, is reasonably likely
to result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the
date of the most recent financial statements reflecting such amounts, exceed
the fair value of the assets of such Plan.


 


SECTION 3.1l. Disclosure. None of the other reports,
financial statements, certificates or other information furnished by or on
behalf of any Loan Party to the Administrative Agent or any Lender in
connection with the negotiation of the Existing Credit Agreement or this
Agreement or any other Loan Document or delivered hereunder or thereunder (as
modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, provided that the foregoing shall not apply
to any projected financial information other than the projected financial
information provided to the Lenders prior to the Closing Date, and with respect
to such projected financial information, Holdings and the Borrower represent
only that such information was prepared in good faith based upon assumptions
believed by them to be reasonable at the time delivered and as of the Closing
Date. As of the date of the Agreement, Holdings, the Borrower and each Subsidiary
have disclosed to the Lenders all facts regarding the FCPA Claims that are
known to it that could reasonably be expected to have a Material Adverse
Effect.


 


SECTION 3.12. Subsidiaries. As of the Closing Date, the
Borrower does not have any subsidiaries other than the Subsidiaries, Permitted
Joint Ventures and Inactive Subsidiaries listed on Schedule 3.12. Schedule
3.12 sets forth the name of, and the ownership or beneficial interest of
Borrower in, each subsidiary, and identifies each Subsidiary that is a
Subsidiary Loan Party, in each case as of the Closing Date.


 


SECTION 3.13. Insurance. Schedule 3.13 sets forth a
description of all insurance maintained by or on behalf of Holdings, the
Borrower and the Subsidiaries as of the Closing Date. As of the Closing Date,
all premiums in respect of such insurance have been paid. Holdings and the
Borrower believe that the insurance maintained by or on behalf of the Borrower
and the Subsidiaries is adequate.


 


SECTION 3.14. Labor Matters. As of the Closing Date, there
are no strikes, lockouts or slowdowns against Holdings, the Borrower or any
Subsidiary pending or, to the knowledge of the Borrower, threatened. The hours
worked by and payments made to employees of the Borrower and the Subsidiaries
have not been in violation of the Fair Labor Standards Act or any other
applicable Federal, state, local or foreign law dealing with such matters. All
payments due from Holdings, the Borrower or any Subsidiary, or for which any
claim may be made against Holdings, the Borrower or any Subsidiary, on account
of wages and employee health and welfare insurance and other benefits, have
been paid or accrued as a liability on the books of Holdings, the Borrower or
such Subsidiary. The consummation of the Transactions will not give rise to any
right of termination or right of renegotiation on the part of any union under
any collective bargaining agreement to which Holdings, the Borrower or any
Subsidiary is bound.


 


SECTION 3.15. Solvency. Immediately after the consummation
of the Transactions to occur on the Closing Date, (a) the fair value of
the assets of each Loan Party, at a fair valuation, will exceed its debts and
liabilities, subordinated, contingent or otherwise, (b) the present fair
saleable value of the property of each Loan Party will be greater than the
amount that will be required to pay the probable


 


52

















 


liability of its
debts and other liabilities, subordinated, contingent or otherwise, as such
debts and other liabilities become absolute and matured, (c) each Loan
Party will be able to pay its debts and liabilities, subordinated, contingent
or otherwise, as such debts and liabilities become absolute and matured, and (d) no
Loan Party will have unreasonably small capital with which to conduct the
business in which it is engaged as such business is now conducted and is
proposed to be conducted following the Closing Date, in each case after giving
effect to any rights of indemnification, contribution or subrogation arising among
the Subsidiary Loan Parties pursuant to the Collateral Agreement or by law.


 


SECTION 3.16. Senior Indebtedness. The Obligations
constitute “Senior Debt” or a comparable term under and as defined in the
Senior Subordinated Notes Documents and in the documentation governing any
Additional Subordinated Debt.


 


SECTION 3.17. Fraud and Abuse. None of Holdings, the
Borrower or any Subsidiary, nor any of their respective partners, members,
stockholders, officers or directors, acting on behalf of Holdings, the Borrower
or any Subsidiary, have engaged on behalf of Holdings, the Borrower or any
Subsidiary in any activities that are prohibited under 42 U.S.C. § 1320a-7, 42
U.S.C. § 1320a-7a, 42 U.S.C. § 1320a-7b, 42 U.S.C. § 1395nn, 31 U.S.C. § 3729
et seq., or the regulations promulgated thereunder, or related Requirements of
Law, or under any similar state law or regulation, or that are prohibited by
binding rules of professional conduct, including (a) knowingly and
willfully making or causing to be made a false statement or misrepresentation
of a material fact in any application for any benefit or payment, (b) knowingly
and willfully making or causing to be made any false statement or
misrepresentation of a material fact for use in determining rights to any
benefit or payment, (c) failing to disclose knowledge by a claimant of the
occurrence of any event affecting the initial or continued right to any benefit
or payment on its own behalf or on behalf of another, with intent to secure
such benefit or payment fraudulently, (d) knowingly and willfully
soliciting or receiving any remuneration (including any kickback, bribe or
rebate), directly or indirectly, overtly or covertly, in cash or in kind, or
offering to pay or receive such remuneration (i) in return for referring
an individual to a Person for the furnishing or arranging for the fumishing of
any item or service for which payment may be made, in whole or in part or (ii) in
return for purchasing, leasing or ordering or arranging for or recommending
purchasing, leasing or ordering any good, facility, service or item for which
payment may be made, in whole or in part and (e) making any prohibited
referral for designated health services, or presenting or causing to be
presented a claim or bill to any individual or other entity for designated
health services furnished pursuant to a prohibited referral. Neither Holdings,
the Borrower nor any Subsidiary shall be considered to be in breach of this Section 3.18
so long as (a) it shall have taken such actions (including implementation
of appropriate internal controls) as may be reasonably necessary to prevent
such prohibited actions and (b) such prohibited actions as have occurred,
individually or in the aggregate, are not reasonably likely to have a Material
Adverse Effect.


 


ARTICLE IV


 


Conditions


 


SECTION 4.01. Closing Date. The obligations of the Lenders
to make Loans and of the Issuing Bank to issue Letters of Credit hereunder
shall not become effective until the date on which each of the following
conditions is satisfied (or waived):


 


(a) The Administrative Agent shall have received from each party
hereto either (i) a counterpart of this Agreement signed on behalf of such
party or (ii) written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature page of
this Agreement) that such party has signed a counterpart of this Agreement.


 


53

















 


(b) A reaffirmation (or at the request of the Administrative
Agent, an amendment and restatement) of the Security Documents including,
without limitation, the Guarantee and Collateral Agreement, the Control
Agreements (as defined in the Guarantee and Collateral Agreement), the Patent
Security Agreement (as defined in the Guarantee and Collateral Agreement), the
Trademark Security Agreement (as defined in the Guarantee and Collateral
Agreement) and the Copyright Security Agreement (as defined in the Guarantee
and Collateral Agreement), in each case duly executed and delivered by each
respective Loan Party.


 


(c) The Administrative Agent shall have received a written opinion
(addressed to the Administrative Agent and the Lenders and dated the Closing
Date) of each of (i) Ropes & Gray LLP, counsel for Holdings and
the Borrower, substantially in the form of Exhibit B-l, and (ii) The
Holstein Law Firm, substantially in the form of Exhibit B-2, and,
in the case of each such opinion required by this paragraph, covering such
other matters relating to the Loan Parties, the Loan Documents or the
Transactions as the Administrative Agent shall reasonably request.


 


(d) The Administrative Agent shall have received such documents
and certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of each Loan
Party, the authorization of the Transactions and any other legal matters
relating to the Loan Parties, the Loan Documents or the Transactions, all in
form and substance reasonably satisfactory to the Administrative Agent.


 


(e) The Administrative Agent shall have received a certificate,
dated the Closing Date and signed by a Financial Officer, confirming compliance
with the conditions set forth in paragraphs (a) and (b) of Section 4.02.


 


(f) The Lenders and the Administrative Agent shall have received
all fees and other amounts due and payable on or prior to the Closing Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses (including fees, charges and disbursements of counsel)
required to be reimbursed or paid by the Borrower hereunder or under any other
Loan Document.


 


(g) The Administrative Agent shall have received a completed
Perfection Certificate dated the Closing Date and signed by a Financial Officer
and a legal officer of the Borrower, together with all attachments contemplated
thereby, including the results of a search of the Uniform Commercial Code (or
equivalent) filings made with respect to the Loan Parties in the jurisdictions
contemplated by the Perfection Certificate and copies of the financing
statements (or similar documents) disclosed by such search and evidence
reasonably satisfactory to the Administrative Agent that the Liens indicated by
such financing statements (or similar documents) are permitted by Section 6.02
or have been released.


 


(h) The sources and uses for the Transactions shall be as set
forth on Schedule 4.01(h). The capital structure of each Loan Party after the
Transactions shall be otherwise substantially consistent with information
provided to each Lender prior to the date hereof or to the extent of any
changes after the date hereof, as reasonably satisfactory to the Lenders.


 


(i) The Transactions to be consummated on the Closing Date shall
have been consummated pursuant to documents in form and substance reasonably
satisfactory to the Lenders and, in each case, no provision of any such
document shall have been waived, amended, supplemented or otherwise modified in
a manner materially adverse to the Lenders, except with the consent of the
Lenders (not to be unreasonably withheld).


 


54

















 


(j) All requisite material Governmental Authorities and third
parties shall have approved or consented to (i) the Transactions, (ii) the
financing contemplated hereby and (iii) the continuing operations of the
Borrower and its subsidiaries, and in each case such approvals and consents
shall be in full force and effect.


 


(k) The Lenders shall have received (i) with respect to the
Borrower, audited consolidated financial statements of the Borrower and its
Subsidiaries for the fiscal year ended December 31, 2005, (ii) unaudited
interim consolidated financial statements of the Borrower and its Subsidiaries
for each quarterly or monthly period ended prior to the Closing Date to the
extent available, in each case pursuant to clauses (i) and (ii), in form
and substance reasonably satisfactory to the Administrative Agent, and (iii) a
pro forma consolidated balance sheet of the Borrower and its Subsidiaries as at
the date of the most recent consolidated balance sheet delivered pursuant to
this paragraph, adjusted to give effect to the consummation of the Transactions
and the financings contemplated hereby as if such transactions had occurred on
such date, which balance sheet shall not be materially inconsistent with the
forecasts previously provided to the Lenders.


 


(l) The Lenders shall have received a certificate from the
Borrower, dated the Closing Date and signed by a Financial Officer of Borrower,
confirming that, except with respect to the FCPA Claims (to the extent
supported by cash on hand or a cash investment directly or indirectly in the
Borrower), since December 31, 2005, there has been no Material Adverse
Effect as described in clauses (a) and (b) of the definition thereof.


 


(m) The Administrative Agent shall have received a certificate
dated the Closing Date and signed by the president or a vice president of the
Borrower or a Financial Officer, in form and substance reasonably satisfactory
to the Administrative Agent, together with such other evidence  reasonably
requested by the Lenders, confirming the solvency of the Borrower and its
subsidiaries on a consolidated basis after giving effect to the Transactions.


 


(n) Each Lender shall have received all documentation and other
information required by bank, regulatory authorities under applicable “know
your customer” and Anti-Money Laundering rules and regulations as any
Lender may reasonably request, including without limitation, the USA Patriot
Act.


 


(o) All “Term Loans” outstanding under (and as defined in) the
Existing Credit Agreement shall have been repaid in full.


 


The Administrative Agent shall notify the Borrower and the Lenders of
the Closing Date, and such notice shall be conclusive and binding.


 


SECTION 4.02. Each Credit Event. The obligation of each
Lender to make any Loan and of the Issuing Bank to issue, amend, renew or
extend any Letter of Credit, is subject to receipt of the request therefor in
accordance herewith and to the satisfaction of the following conditions:


 


(a) The representations and warranties of each Loan Party set
forth in the Loan Documents shall be true and correct in all material respects
(except to the extent any such representation or warranty is qualified by “materially”,
“Material Adverse Effect” or a similar term, in which case such representation
and warranty shall be true and correct in all respects) on and as of the date
of such Borrowing or the date of issuance, amendment, renewal or extension of
such Letter of Credit, as applicable, except to the extent such representations
and warranties expressly relate to an earlier date (in which case such
representations and warranties shall be true and correct (or true and correct
in all material respects, as the case may be) as of such earlier date).


 


55

















 


(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be continuing.


 


Each Borrowing (provided
that a conversion or continuation of a Borrowing shall not constitute a “Borrowing”
for purposes of this Section 4.02) and each issuance, amendment, renewal
or extension of a Letter of Credit shall be deemed to constitute a
representation and warranty by Holdings and the Borrower on the date thereof as
to the matters specified in paragraphs (a) and (b) of this Section 4.02.


 


ARTICLE V


 


Affirmative Covenants


 


Until the Commitments have expired or been terminated and the principal
of and interest on each Loan and all fees, expenses and other amounts payable
under any Loan Document shall have been paid in full and all Letters of Credit
shall have expired or terminated and all LC Disbursements shall have been
reimbursed, each of Holdings and the Borrower covenants and agrees with the
Lenders that:


 


SECTION 5.01.  Financial
Statements and Other Information. The Borrower will furnish to the
Administrative Agent (for distribution to each Lender):


 


(a) within 90 days (or such shorter period as the SEC shall
specify for the filing of annual reports on Form 10-K) after the end of
each fiscal year of the Borrower commencing with the fiscal year ended December 31,
2005, (i) its audited consolidated balance sheet and consolidated
statements of operations and comprehensive income, stockholders’ equity and
cash flows as of the end of and for such fiscal year, and the related notes
thereto, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by independent public accountants of
recognized national standing (without a “going concern” or like qualification
or exception and without any qualification or exception as to the scope of such
audit) to the effect that such consolidated financial statements present fairly
in all material respects the financial condition and results of operations of
the Borrower and the Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied, and (ii) if at any time the Borrower is not
subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, a “Management’s Discussion and Analysis of Financial Condition
and Results of Operations” that describes the financial condition and results
of operations of the Borrower and its consolidated Subsidiaries;


 


(b) within 45 days (or such shorter period as the SEC shall
specify for the filing of quarterly reports on Form 10-Q) after the end of
each of the first three fiscal quarters of each fiscal year of the Borrower
commencing with the fiscal quarter ending March 31, 2006, its consolidated
balance sheet and consolidated statements of operations and comprehensive
income, stockholders’ equity and cash flows as of the end of and for such
fiscal quarter and the then-elapsed portion of the fiscal year, setting forth
in each case in comparative form the figures for the corresponding period or
periods of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by a Financial Officer as presenting fairly
in all material respects the financial condition and results of operations of
the Borrower and the Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes;


 


(c) concurrently with any delivery of financial statements under
paragraph (a) or (b) above, a certificate of a Financial Officer (i) certifying
as to whether a Default has occurred and, if a Default has occurred, specifying
the details thereof and any action taken or proposed to be taken with respect
thereto, (ii) setting forth (A) reasonably detailed calculations
demonstrating compliance with


 


56

















 


Sections 6.12,
6.13 and 6.15 (including (x) any prepayment of the Loans as set forth in
the definition of “Leverage Ratio” and (y) any exercise of the rights set
forth in Section 7.02) and (B) in the case of financial statements
delivered under paragraph (a) above beginning in 2007 with respect to
fiscal year 2006, reasonably detailed calculations of Excess Cash Flow, (iii) stating
whether any change in GAAP or in the application thereof has occurred since the
date of the Borrower’s audited financial statements referred to in Section 3.04
and, if any such change has occurred, specifying the effect of such change on
the financial statements accompanying such certificate, and (iv) certifying
as to the calculation of Consolidated EBITDA on a Pro Forma Basis for the four
fiscal quarter period ending on the date of such financial statements and
accompanied by reasonably detailed supporting evidence, it being understood
that each of the calculations described in this paragraph (c) shall
provide a reconciliation to the financial statements delivered under paragraphs
(a) and (b) above;


 


(d) concurrently with any delivery of financial statements under
paragraph (a) above, a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge during the
course of their examination of such financial statements of any Default and if
such knowledge has been obtained, describing such Default (which certificate
may be limited to  the extent required by
accounting rules or guidelines);


 


(e) concurrently with the issuance of any Indebtedness permitted
by Sections 6.01(a)(xii) and (xiii), or a Restricted Payment permitted by Section 6.08(a)(ix),
a certificate of a Financial Officer certifying as to (i) the Leverage
Ratio accompanied by reasonably detailed supporting evidence, (ii) the use
of proceeds from such issuance and (iii) whether a Default has occurred
and, if a Default has occurred, specifying the details thereof and any action
taken or proposed to be taken with respect thereto, it being understood that
each of the calculations described in this paragraph (e) shall provide a
reconciliation to the financial statements delivered under paragraphs (a) and
(b) above;


 


(f) within 30 days after the commencement of each fiscal year of
the Borrower, a detailed consolidated budget for such fiscal year (including a
projected consolidated balance sheet and consolidated statements of projected
operations and cash flows as of the end of and for such fiscal year) and,
promptly when available, any significant revisions of such budget;


 


(g) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements and other materials filed by
the Borrower or any Subsidiary with the SEC or with any national securities
exchange, as applicable;


 


(h) concurrently (or promptly thereafter) with the delivery of any
notices to the Holders (as defined in the Securities Purchase Agreement) of the
Senior Subordinated Notes, copies of such notices;


 


(i) as promptly as practicable and no later than 5 Business Days
prior to the effectiveness thereof, (i) copies of substantially final
drafts of any proposed amendment, supplement, waiver or other modification with
respect to any documentation governing the Senior Subordinated Notes and (ii) notice
of any transfers of any interests in the Senior Subordinated Notes other than
to the Sponsor or a Sponsor Affiliate; and


 


(j) promptly following any request therefor, such other
information regarding the operations, business affairs and financial condition
of Holdings, the Borrower or any Subsidiary or any Plan, or compliance with the
terms of any Loan Document, as the Administrative Agent or any Lender may
reasonably request.


 


57














 


SECTION 5.02. Notices of Material Events. Holdings and the
Borrower will furnish to the Administrative Agent (for distribution to each
Lender), through the Administrative Agent, written notice of the following
promptly after obtaining knowledge thereof:


 


(a) the occurrence of any Default;


 


(b) the filing or commencement of any action,
suit or proceeding by or before any arbitrator or Governmental Authority
against or affecting Holdings, the Borrower or any Subsidiary that, if
adversely determined, is reasonably likely to result in a Material Adverse
Effect;


 


(c) the occurrence of any ERISA Event that alone
or together with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower and the Subsidiaries in an
aggregate amount exceeding $5,000,000;


 


(d) the receipt by Holdings, the Borrower or any
Subsidiary of (i) any notice of any loss of (A) accreditation from
the Joint Commission on Accreditation of Healthcare Organizations or (B) any
governmental right, qualification, permit, accreditation, approval,
authorization, license or franchise or (ii) any notice, compliance order
or adverse report issued by any Governmental Authority that, if not promptly
complied with or cured, could result in the suspension or forfeiture of any
material governmental right, qualification, permit, accreditation, approval,
authorization, license or franchise necessary for the Borrower or any
Subsidiary to carry on its business as now conducted or as proposed to be
conducted, including the right or authorization to sell, distribute, market or
donate any product, or any material restriction, limitation, or prohibition on
the specific use or indication of any product; .


 


(e) any claims by any third parties relating to
alleged infringement by Holdings, the Borrower or any Subsidiary of any
material third party Intellectual Property;


 


(f) any materially adverse developments regarding the FCPA Claims;
and


 


(g) any other development that results in, or is
reasonably likely to result in, a Material Adverse Effect.


 


Each notice
delivered under this Section 5.02 shall be accompanied by a statement of a
Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.


 


SECTION 5.03. Information Regarding Collateral.


 


(a) The Borrower will furnish to the Collateral Agent prompt
written notice of any change (i) in any Loan Party’s corporate name, (ii) in
the jurisdiction of incorporation or organization of any Loan Party or (iii) in
any Loan Party’s organizational identification number. The Borrower agrees not
to effect or permit any change referred to in the preceding sentence unless all
filings have been made under the Uniform Commercial Code or otherwise that are
required in order for the Collateral Agent to continue at all times following
such change to have a valid, legal and perfected security interest in all the
Collateral. The Borrower also agrees promptly to notify the Collateral Agent if
any material portion of the Collateral is damaged or destroyed.


 


(b) Each year, at the time of delivery of annual financial
statements pursuant to Section 5.01 (a), the Borrower shall deliver to the
Collateral Agent a certificate executed by a Financial


 


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Officer and the
chief legal officer of the Borrower setting forth the information required
pursuant to the Perfection Certificate or confirming that there has been no change
in such information since the date of the Perfection Certificate delivered on
the Closing Date or the date of the most recent certificate delivered pursuant
to this Section.


 


SECTION 5.04. Existence; Conduct of Business. Each of
Holdings and the Borrower will, and will cause each of the Subsidiaries to, do
or cause to be done all things necessary to preserve, renew and keep in full
force and effect its legal existence and the rights, qualifications, permits,
approvals, accreditations, authorizations, licenses, franchises, patents,
copyrights, trademarks and trade names material to the conduct of its business;
provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.03.


 


SECTION 5.05. Payment of Obligations. Each of Holdings and
the Borrower will, and will cause each of the Subsidiaries to, pay its Tax
liabilities, before the same shall become delinquent or in default, except
where (a) the validity or amount thereof is being contested in good faith
by appropriate proceedings, (b) Holdings, the Borrower or such Subsidiary
has set aside on its books adequate reserves with respect thereto in accordance
with GAAP, (c) such contest effectively suspends the enforcement of any
Lien securing such obligation and (d) the failure to make payment pending
such contest is not reasonably likely to result in a Material Adverse Effect.


 


SECTION 5.06. Maintenance of Properties. Each of Holdings
and the Borrower will, and will cause each of the Subsidiaries to, keep and
maintain all property material to the conduct of its business in good working
order and condition, ordinary wear and tear excepted.


 


SECTION 5.07. Insurance. Each of Holdings and the Borrower
will, and will cause each of the Subsidiaries to, maintain, with financially
sound and reputable insurance companies (which may include self-insurance), (a) insurance
in such amounts (with no greater risk retention) and against such risks as are
customarily maintained by companies of established repute engaged in the same
or similar businesses operating in the same or similar locations and (b) all
insurance required to be maintained pursuant to the Security Documents. The
Borrower will furnish to the Lenders, upon request of the Administrative Agent,
information in reasonable detail as to the insurance so maintained.


 


SECTION 5.08. Casualty and Condemnation. The Borrower (a) will
furnish to the Administrative Agent and the Lenders prompt written notice of
any casualty or other insured damage to any material portion of the Collateral
or the commencement of any action or proceeding for the taking of any material
portion of the Collateral or interest therein under power of eminent domain or
by condemnation or similar proceeding and (b) will ensure that the Net
Proceeds of any such event (whether in the form of insurance proceeds,
condemnation awards or otherwise) are collected and applied in accordance with
the applicable provisions of this Agreement and the Security Documents.


 


SECTION 5.09. Books and Records; Inspection and Audit Rights.
Each of Holdings and the Borrower will, and will cause each of the Subsidiaries
to, keep proper books of record and account in which full, true and correct
entries are made of all dealings and transactions in relation to its business
and activities. Each of Holdings and the Borrower will, and will cause each of
the Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior notice, to visit and
inspect its properties during normal business hours, to examine and make
extracts from its books and records, including environment assessment reports
and Phase I or Phase II studies, and to discuss its affairs, finances and
condition with its officers and independent accountants (provided that
the Borrower shall be provided the opportunity to participate in any such
discussions with its independent accountants), all at such reasonable times and
as often as reasonably requested.


 


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SECTION 5.10. Compliance with Laws. Each of Holdings and
the Borrower will cause each of the Subsidiaries to comply with all
Requirements of Law, including Environmental Laws, applicable to it or its
property, except where the failure to do so, individually or in the aggregate,
is not reasonably likely to result in a Material Adverse Effect.


 


SECTION 5.11. Use of Proceeds and Letters of Credit. The
proceeds of the Tranche B Term Loans will be used by the Borrower on the
Closing Date in the manner described in Schedule 4.01(h) and for working
capital and for other general corporate purposes (including, without
limitation, to finance permitted acquisitions). The proceeds of the Revolving
Loans (except as described above), Swingline Loans and Letters of Credit will
be used only for working capital and for other general corporate purposes
(including, without limitation, to finance permitted acquisitions). No part of
the proceeds of any Loan and no Letter of Credit will be used, whether directly
or indirectly, for any purpose that entails a violation of any of the
Regulations of the Board, including Regulations T, U and X.


 


SECTION 5.12. Additional Subsidiaries; Holdings. If any
additional Subsidiary is formed or acquired after the Closing Date (or if (x) any
Inactive Subsidiary that is not a Subsidiary Loan Party ceases to qualify as an
Inactive Subsidiary or (y) a Permitted Joint Venture that is not otherwise
a Permitted Joint Venture Loan Party becomes a wholly owned Subsidiary of the
Borrower or is not restricted by contract from executing the Security
Documents), the Borrower will, promptly after such Subsidiary or Permitted
Joint Venture is formed or acquired, notify the Collateral Agent and the
Lenders (through the Administrative Agent) thereof and promptly cause the
Collateral and Guarantee Requirement to be satisfied with respect to such
Subsidiary or Permitted Joint Venture and with respect to any Equity Interest
in or Indebtedness of such Subsidiary or Permitted Joint Venture owned by or on
behalf of any Loan Party.


 


SECTION 5.13. Further Assurances.


 


(a) Each of Holdings and the Borrower will, and will cause each
Subsidiary Loan Party to, execute any and all further documents, financing
statements, agreements and instruments, and take all such further actions
(including the filing and recording of financing statements, fixture filings,
mortgages, deeds of trust and other documents), which may be required under any
applicable law, or which the Administrative Agent or the Required Lenders may
reasonably request, to cause the Collateral and Guarantee Requirement to be and
remain satisfied, all at the expense of the Loan Parties. Each of Holdings and
the Borrower also agrees to provide to the Collateral Agent, from time to time
upon reasonable request, evidence reasonably satisfactory to the Administrative
Agent as to the perfection and priority of the Liens created or intended to be
created by the Security Documents.


 


(b) If any material assets (including any real property (other
than any leased real property) or improvements thereto or any interest therein,
other than any real property with a fair value of less than $2,500,000) are
acquired by the Borrower or any Subsidiary Loan Party after the Closing Date
(other than assets constituting Collateral under the Collateral Agreement that
become subject to the Lien in favor of the Collateral Agreement upon
acquisition thereof), the Borrower will notify the Administrative Agent and the
Lenders thereof and, if requested by the Administrative Agent or the Required
Lenders, the Borrower will cause such assets to be subjected to a Lien securing
the Obligations and will take, and cause the Subsidiary Loan Parties to take,
such actions as shall be necessary or reasonably requested by the
Administrative Agent to grant and perfect such Liens, including actions
described in paragraph (a) of this Section 5.13, all at the expense
of the Loan Parties, provided that the Collateral Agent may, in its
reasonable judgment, grant extensions of time for compliance or exceptions with
the provisions of this paragraph by any Loan Party.


 


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SECTION 5.14. Post Closing Matters. Holdings and the
Borrower shall, and shall cause each Subsidiary to, comply with the terms and
conditions set forth on Schedule 5.14


 


ARTICLE VI


 


Negative Covenants


 


Until the Commitments have expired or been terminated and the principal
of and interest on each Loan and all fees, expenses and other amounts payable
under any Loan Document have been paid in full and all Letters of Credit have
expired or terminated and all LC Disbursements shall have been reimbursed, each
of Holdings and the Borrower covenants and agrees with the Lenders that:


 


SECTION 6.01. Indebtedness; Certain Equity Securities.


 


(a) Neither Holdings nor the Borrower will, nor will they permit
any Subsidiary to, create, incur, assume or permit to exist any Indebtedness,
except:


 


(i) Indebtedness created under the Loan
Documents;


 


(ii) the Senior Subordinated Notes;


 


(iii) [Intentionally Deleted];


 


(iv) Indebtedness existing on the Original
Closing Date and set forth in Schedule 6.01 and extensions, renewals and
replacements of any such Indebtedness, provided that such extending,
renewal or replacement Indebtedness (A) shall not be in a principal amount
that exceeds the principal amount of the Indebtedness being extended, renewed
or replaced (plus accrued interest and premium thereon), (B) shall
not have an earlier maturity date or a decreased weighted average life than the
Indebtedness being extended, renewed or replaced, (C) shall be
subordinated to the Obligations on the same terms (or, from a Lender’s
perspective, better terms) as the Indebtedness being extended, renewed or
replaced and (D) there is no obligor of such Indebtedness that is not
either (x) an obligor of such Indebtedness on the Closing Date or (y) otherwise
permitted to incur such Indebtedness by another clause of this Section 6.01;


 


(v) Indebtedness of the Borrower owed to any
Subsidiary and of any Subsidiary owed to the Borrower or any other Subsidiary, provided
that Indebtedness of the Borrower owed to any Subsidiary and Indebtedness of
any Subsidiary owed to the Borrower or any other Subsidiary shall be
subordinated to the Obligations on terms reasonably satisfactory to the
Administrative Agent;


 


(vi) Guarantees by the Borrower of Indebtedness
of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any
other Subsidiary, provided that (A) the Indebtedness so Guaranteed
is permitted by this Section 6.01, (B) Guarantees permitted under
this clause (vi) shall be subordinated to the Obligations of the Borrower
or the applicable Subsidiary to the same extent and on the same terms as the
Indebtedness so Guaranteed is subordinated to the Obligations and (C) except
in the case of Foreign Subsidiaries that provide Guarantees of Indebtedness of
other Foreign Subsidiaries, no Subsidiary shall Guarantee any Indebtedness
unless it is a Subsidiary Loan Party;


 


(vii) Indebtedness of the Borrower or any
Subsidiary incurred to finance the acquisition, construction or improvement of
any fixed or capital assets, including Capital Lease


 


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Obligations, and any Indebtedness assumed by the Borrower or any
Subsidiary in connection with the acquisition of any such assets or secured by
a Lien on any such assets prior to the acquisition thereof, and extensions,
renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof (including the principal and any accrued
but unpaid interest or premium in respect thereof), provided that (A) such
Indebtedness is incurred prior to or within 120 days after such acquisition or
the completion of such construction or improvement, (B) that the aggregate
principal amount of Indebtedness permitted by this clause (vii) in respect
of the Specified Property shall not exceed at any time outstanding $25,000,000
and (C) the aggregate principal amount of all other Indebtedness permitted
by this clause (vii) shall not exceed at any time outstanding $10,000,000;


 


(viii) (A) Indebtedness of any Person that
becomes a Subsidiary after the date hereof, provided that (1) such
Indebtedness exists at the time such Person becomes a Subsidiary and is not
created in contemplation of or in connection with such Person becoming a
Subsidiary and (2) the aggregate amount of Indebtedness permitted by this
clause (viii) (including subclause (B)) shall not exceed $5,000,000 at any
time outstanding, and (B) any refinancings, renewals and replacements of
any such Indebtedness pursuant to the preceding clause (A) that do not
increase the outstanding principal amount (plus accrued interest and
premium) thereof;


 


(ix) Indebtedness owed to any Person (including
obligations in respect of letters of credit for the benefit of such Person)
providing workers’ compensation, health, disability or other employee benefits
or property, casualty or liability insurance pursuant to reimbursement or
indemnification obligations to such Person, in each case incurred in the ordinary
course of business;


 


(x) Indebtedness of the Borrower or any
Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety
bonds, performance and completion guarantees and similar obligations, in each
case provided in the ordinary course of business;


 


(xi) Indebtedness of any Loan Party pursuant to Swap
Agreements permitted by Section 6.07;


 


(xii) with respect to Holdings, Qualified Holdings
Debt; provided, that no Default has occurred and is continuing or would
result therefrom;


 


(xiii) with respect to the Borrower and the
Guarantors, Additional Subordinated Debt so long as (other than if the proceeds
thereof will be applied to the prepayment, repayment, redemption, repurchase,
defeasance or other retirement of the Senior Subordinated Notes) after giving
effect to the incurrence of such Additional Subordinated Debt on a Pro Forma
Basis, the Leverage Ratio would be less than the Leverage Ratio set forth in Section 6.13
for such date minus 0.25, provided, that the Net Proceeds of such
Additional Subordinated Debt are used, promptly after such Net Proceeds are
received, (A) for Capital Expenditures, (B) for Investments, (C) to
consummate one or more Permitted Acquisitions, (D) to prepay, repay,
redeem, defease, repurchase or otherwise retire any Subordinated Indebtedness, (E) non-recurring
cash charges incurred by the Borrower and its Subsidiaries in an aggregate
amount not to exceed $25,000,000 or (F) to prepay Tranche B Term Loans
pursuant to Section 2.11 (a); provided  further that no
Default has occurred and is continuing or would result therefrom;


 


(xiv) Indebtedness representing deferred compensation
to employees of the Borrower and the Subsidiaries incurred in the ordinary
course of business;


 


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(xv) Indebtedness in respect of promissory notes
issued to consultants, employees or directors or former employees, consultants
or directors in connection with repurchases of Equity Interests permitted by Section 6.08(a)(iii) or
(x)(v);


 


(xvi) Indebtedness of any Foreign Subsidiary or any
Subsidiary of the Borrower that is not a Loan Party in an amount not to exceed
$10,000,000 at any time outstanding;


 


(xvii) other Indebtedness of the Borrower or any
Subsidiary in an aggregate principal amount not exceeding $20,000,000.


 


(b) The Borrower will not, and Holdings and the Borrower will not
permit any Subsidiary to, issue any preferred Equity Interests.


 


(c) Holdings will not issue any preferred Equity Interests other
than Qualified Preferred Stock.


 


SECTION 6.02. Liens. Neither Holdings nor the Borrower
will, nor will they permit any Subsidiary to, create, incur, assume or permit
to exist any Lien on any property or asset now owned or hereafter acquired by
it, or assign or sell any income or revenues (including accounts receivable) or
rights in respect of any thereof, except:


 


(i) Liens created by the Loan Documents;


 


(ii) Permitted Encumbrances;


 


(iii) any Lien on any property or asset of the
Borrower or any Subsidiary existing on the Original Closing Date and set forth
in Schedule 6.02; provided that (A) such Lien shall not
apply to any other property or asset of the Borrower or any Subsidiary and (B) such
Lien shall secure only those obligations which it secures on the Original
Closing Date and extensions, renewals and replacements thereof that do not
increase the outstanding principal amount thereof (plus accrued interest
and premium thereon);


 


(iv) any Lien existing on any property or asset
prior to the acquisition thereof by the Borrower or any Subsidiary or existing
on any property or asset of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary, provided that
(A) such Lien is not created in contemplation of or in connection with
such acquisition or such Person becoming a Subsidiary, as applicable, (B) such
Lien shall not apply to any other property or asset of the Borrower or any
Subsidiary and (C) such Lien shall secure only those obligations that it
secures on the date of such acquisition or the date such Person becomes a
Subsidiary, as applicable, and extensions, renewals and replacements thereof
that do not increase the outstanding principal amount thereof (plus
accrued interest and premium thereon);


 


(v) Liens on fixed or capital assets acquired,
constructed or improved by the Borrower or any Subsidiary, provided that
(A) such security interests secure Indebtedness permitted by clause (vii) of
Section 6.01 (a), (B) except with respect to the Specified Property,
such security interests and the Indebtedness secured thereby are incurred prior
to or within 120 days after such acquisition or the completion of such
construction or improvement, (C) the Indebtedness secured thereby does not
exceed 100% of the cost of acquiring, constructing or improving such fixed or
capital assets and (D) such security interests shall not apply to any
other property or assets of the Borrower or any Subsidiary;


 


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(vi) Liens of a collecting bank arising in the
ordinary course of business under Section 4-208 of the Uniform Commercial
Code in effect in the relevant jurisdiction covering only the items being
collected upon;


 


(vii) Liens arising out of sale and leaseback
transactions permitted by Section 6.06;


 


(viii) Liens granted by a Subsidiary that is not
a Loan Party in favor of the Borrower or another Loan Party in respect of
Indebtedness owed by such Subsidiary;


 


(ix) licenses, sublicenses, leases or subleases
granted to others not interfering in any material respect with the business of
the Borrower or any Subsidiary;


 


(x) Liens on assets of any Foreign Subsidiary
securing Indebtedness (and related obligations) permitted by Section 6.01 (a) (xvi);
and


 


(xi) Liens on assets of the Borrower or the
Subsidiaries not otherwise permitted by this Section 6.02, so long as
neither (i) the aggregate outstanding principal amount of the obligations
secured thereby nor (ii) the aggregate fair value (determined as of the
date such Lien is incurred) of the assets subject thereto exceeds $5,000,000 at
any time outstanding, provided that in no event shall Holdings, the
Borrower or any Subsidiary create, incur, assume or permit to exist any Lien on
any Equity Interests of the Borrower or any Subsidiary.


 


SECTION 6.03. Fundamental Changes.


 


(a) Neither Holdings nor the Borrower will, nor will they permit
any Subsidiary to, merge into or consolidate with any other Person, or permit
any other Person to merge into or consolidate with it, or liquidate or
dissolve, except that, if at the time thereof and immediately after giving
effect thereto no Default shall have occurred and be continuing, (i) any
Person may merge into the Borrower in a transaction in which the surviving
entity is a Person organized or existing under the laws of the United States of
America, any State thereof or the District of Columbia and, if such surviving
entity is not the Borrower, such Person expressly assumes, in writing, all the
obligations the Borrower under the Loan Documents, (ii) any Person may
merge into any Subsidiary in a transaction in which the surviving entity is a
Subsidiary and, if any party to such merger is a Subsidiary Loan Party, is or
becomes a Subsidiary Loan Party concurrently with such merger, (iii) any
Subsidiary (other than a Subsidiary Loan Party) may liquidate or dissolve if
the Borrower determines in good faith that such liquidation or dissolution is
in the best interests of the Borrower and is not materially disadvantageous to
the Lenders and (iv) any asset sale permitted by Section 6.05(g) may
be effected through the merger of a subsidiary of the Borrower with a third
party, provided that any such merger referred to in clauses (i), (ii), (iii) or
(iv) above involving a Person that is not a wholly owned Subsidiary
immediately prior to such merger shall not be permitted unless also permitted
by Section 6.04.


 


(b) The Borrower will not, and Holdings and the Borrower will not
permit any Subsidiary to, engage to any material extent in any business other
than businesses of the type conducted by the Borrower and the Subsidiaries on
the Closing Date and businesses reasonably related or incidental thereto.


 


(c) Holdings will not engage in any business or activity other
than the ownership of all the outstanding shares of capital stock of the
Borrower and engaging in corporate and administrative functions and other
activities incidental thereto. Holdings will not own or acquire any assets
(other than Equity Interests of the Borrower and the cash proceeds of any
Restricted Payments permitted by Section 6.08 or proceeds of any issuance
of Indebtedness or Equity Interests permitted by this Agreement


 


64

















 


pending
application as required by this Agreement) or incur any liabilities (other than
liabilities under and permitted to be incurred under the Loan Documents and
reasonably incurred in connection with its maintenance of its existence and
activities incidental thereto).


 


SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions. Neither Holdings nor the Borrower will, nor will they permit
any Subsidiary to, purchase or acquire (including pursuant to any merger with
any Person that was not a wholly owned Subsidiary prior to such merger) any
Equity Interests in or evidences of indebtedness or other securities (including
any option, warrant or other right to acquire any of the foregoing) of, make
any loans or advances to, Guarantee any obligations of, or make any investment
or any other interest in, any other Person, or purchase or otherwise acquire
(in one transaction or a series of transactions) any assets of any other Person
constituting a business unit (collectively, “Investments”), except:


 


(i) Permitted Acquisitions, provided that
the sum of all consideration payable in connection with such Permitted
Acquisitions shall not exceed $50,000,000 in the aggregate for the term of the
Agreement;


 


(ii) Permitted Investments;


 


(iii) Investments set forth on Schedule 6.04;


 


(iv) Investments by Holdings in the Borrower and
by the Borrower and the Subsidiaries in Equity Interests in their respective
Subsidiaries, provided that (A) any such Equity Interests held by a
Loan Party shall be pledged pursuant to the Collateral Agreement (subject to
the limitations applicable to common stock of a Foreign Subsidiary referred to
in the definition of “Collateral and Guarantee Requirement”) and (B) the
aggregate amount of investments (other than investments set forth on Schedule
6.04) by Loan Parties in Subsidiaries that are not Loan Parties (together
with outstanding intercompany loans permitted under clause (B) to the
proviso to Section 6.04(v) and outstanding Guarantees permitted to be
incurred under clause (B) to the proviso to Section 6.04(vi)) shall
not exceed $10,000,000 at any time outstanding (in each case determined without
regard to any write-downs or write-offs);


 


(v) loans or advances made by the Borrower to any
Subsidiary and made by any Subsidiary to the Borrower or any other Subsidiary, provided
that (A) any such loans and advances made by a Loan Party shall be
evidenced by a promissory note pledged pursuant to the Collateral Agreement and
(B) the amount of such loans and advances made by Loan Parties to
Subsidiaries that are not Loan Parties (together with outstanding investments
permitted under clause (B) to the proviso to Section 6.04(iv) and
outstanding Guarantees permitted under clause (B) to the proviso to Section 6.04(vi))
shall not exceed $10,000,000 at any time outstanding (in each case determined without
regard to any write-downs or write-offs);


 


(vi) Guarantees constituting Indebtedness
permitted by Section 6.01, provided that (and without limiting the
foregoing) the aggregate principal amount of Indebtedness of Subsidiaries that
are not Loan Parties that is Guaranteed by any Loan Party (together with
outstanding investments permitted under clause (B) to the proviso to Section 6.04(iv) and
outstanding intercompany loans permitted under clause (B) to the proviso
to Section 6.04(v)) shall not exceed $10,000,000 at any time outstanding
(in each case determined without regard to any write-downs or write-offs);


 


(vii) receivables or other trade payables owing
to the Borrower or any Subsidiary if created or acquired in the ordinary course
of business consistent with past practice and payable or


 


65

















 


dischargeable in accordance with customary trade terms, provided
that such trade terms may include such concessionary trade terms as the
Borrower or any such Subsidiary deems reasonable under the circumstances;


 


(viii) Investments consisting of Equity
Interests, obligations, securities or other property received in settlement of
delinquent accounts of and disputes with customers and suppliers in the
ordinary course of business and owing to the Borrower or any Subsidiary or in
satisfaction of judgments;


 


(ix) Investments by the Borrower or any
Subsidiary in payroll, travel and similar advances to cover matters that are
expected at the time of such advances ultimately to be treated as expenses for
accounting purposes and that are made in the ordinary course of business;


 


(x) loans or advances by the Borrower or any
Subsidiary to employees made in the ordinary course of business (including
travel, entertainment and relocation expenses) of the Borrower or any
Subsidiary not exceeding $2,000,000 in the aggregate at any time outstanding
(determined without regard to any write-downs or write-offs of such loans or
advances);


 


(xi) Investments in the form of Swap Agreements permitted
by Section 6.07;


 


(xii) Investments of any Person existing at the time
such Person becomes a Subsidiary of the Borrower or consolidates or merges with
the Borrower or any of the Subsidiaries (including in connection with a
Permitted Acquisition) so long as such investments were not made in
contemplation of such Person becoming a Subsidiary or of such consolidation or
merger;


 


(xiii) Investments received in connection with the
dispositions of assets permitted by Section 6.05;


 


(xiv) Investments constituting deposits described in
clauses (c) and (d) of the definition of the term “Permitted
Encumbrances”;


 


(xv) Investments in Permitted Joint Ventures in an
amount determined at cost not to exceed $15,000,000 outstanding at any time
plus an amount equal to any returns (including dividends, interest,
distributions, returns of principal and profits on sale) actually received in
cash in respect of any such Investments (which amount shall not exceed the
amount of such Investment valued at cost at the time such Investment was made);


 


(xvi) Investments by the Borrower or any Subsidiary in
an aggregate amount, as valued at cost at the time each such Investment is made
and including all related commitments for future advances, not exceeding the
Available Amount immediately prior to the time of the making of any such
Investment; provided that Investments in Permitted Joint Ventures made
pursuant to this subsection (xvi) shall be limited to the amount of Net
Proceeds actually received by the Borrower from the issuance by Holdings of any
Equity Interests (or capital contribution in respect thereof) after the Closing
Date that was not required to be applied to prepay Loans pursuant to Section 2.11
(c)(x), plus the amount of Net Proceeds actually received by the
Borrower from the issuance after the Closing Date of Qualified Holdings Debt;
and


 


(xvii) Investments by the Borrower or any Subsidiary
in an aggregate amount not to exceed the sum of (A) $40,000,000 (of which
$20,000,000 shall be available for royalty lump-sum payments and similar
transactions) and (B) an amount equal to any returns (including dividends,
interest, distributions, returns of principal and profits on sale) actually
theretofore 


 


66

















 


received in cash in respect of any such investment, loan or advance
(which amount shall not exceed the amount of such Investment valued at cost at
the time such Investment was made).


 


SECTION 6.05. Asset Sales. Neither Holdings nor the
Borrower will, nor will they permit any Subsidiary to, sell, transfer, lease or
otherwise dispose of any asset, including any Equity Interest owned by it, nor
will the Borrower permit any Subsidiary to issue any additional Equity Interest
in such Subsidiary (other than to the Borrower or another Subsidiary in
compliance with Section 6.04), except:


 


(a) sales, transfers and dispositions of (i) inventory
in the ordinary course of business and (ii) used, obsolete, worn out or
surplus equipment or property in the ordinary course of business;


 


(b) sales, transfers and dispositions to the
Borrower or any Subsidiary, provided that any such sales, transfers or
dispositions involving a Subsidiary that is not a Loan Party shall be made in
compliance with Section 6.09;


 


(c) sales, transfers and dispositions of accounts
receivable in connection with the compromise, settlement or collection thereof
consistent with past practice;


 


(d) sales, transfers and dispositions of property
to the extent such property constitutes an investment permitted by clauses
(ii), (viii), (xii) and (xiv) of Section 6.04;


 


(e) sale and leaseback transactions permitted by Section 6.06,
including, without limitation, the sale and leaseback of the properties listed
on Schedule 6.06 and the Specified Property;


 


(f) dispositions resulting from any casualty or
other insured damage to, or any taking under power of eminent domain or by
condemnation or similar proceeding of, any property or asset of the Borrower or
any Subsidiary;


 


(g) sales, transfers and other dispositions of
assets (other than Equity Interests in a Subsidiary unless all Equity Interests
in such Subsidiary are sold) that are not permitted by any other paragraph of
this Section 6.05, provided that the aggregate fair value of all
assets sold, transferred or otherwise disposed of in reliance upon this
paragraph (g) shall not exceed $10,000,000 during the term of this
Agreement; and


 


(h) exchanges of property for similar replacement
property for fair value;


 


provided
that all sales, transfers, leases and other dispositions permitted hereby
(other than those permitted by paragraphs (b), (c) and (f) above)
shall be made for fair value and (other than those permitted by paragraphs (b),
(d) and (h) above) for at least 75% cash consideration, plus
(for all such sales, transfers, leases and other dispositions permitted hereby)
an aggregate additional amount of non-cash consideration in the amount of
$2,500,000 (it being understood that for purposes of paragraph (a) above,
accounts receivable received in the ordinary course and any property received
in exchange for used, obsolete, worn out or surplus equipment or property and
any non-cash consideration that was actually converted into cash within 6
months following the applicable sale, transfer, lease or other disposition by
the Borrower or any of its Subsidiaries shall be deemed to constitute cash
consideration).


 


SECTION 6.06.  Sale and Leaseback Transactions.
Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to,
enter into any arrangement, directly or indirectly, whereby it


 


67

















 


shall sell or
transfer any property, real or personal, used or useful in its business,
whether now owned or hereafter acquired, and thereafter rent or lease such
property or other property that it intends to use for substantially the same
purpose or purposes as the property sold or transferred, except for (x) any
such sale of any fixed or capital assets by the Borrower or any Subsidiary that
is made for cash consideration in an amount not less than the fair value of
such fixed or capital asset and is consummated within 120 days after the
Borrower or such Subsidiary acquires or completes the construction of such
fixed or capital asset, (y) sale and leaseback transactions with respect
to properties acquired after the Closing Date, where the Fair Market Value of
such properties in the aggregate does not to exceed $5,000,000 or (z) the
sale and leaseback of the properties listed on Schedule 6.06 and the
Specified Property.


 


SECTION 6.07. Swap Agreements. Neither Holdings nor the
Borrower will, nor will they permit any Subsidiary to, enter into any Swap
Agreement, except (a) Swap Agreements entered into to hedge or mitigate
risks to which the Borrower or any Subsidiary has actual exposure (other than
those in respect of Equity Interests of the Borrower or any of the
Subsidiaries) and (b) Swap Agreements entered into in order to effectively
cap, collar or exchange interest rates (from fixed to floating rates, from one
floating rate to another floating rate or otherwise) with respect to any
interest-bearing liability or investment of the Borrower or any Subsidiary.


 


SECTION 6.08. Restricted Payments; Certain Payments of
Indebtedness.


 


(a) Neither Holdings nor the Borrower will, nor will they permit
any Subsidiary to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, or incur any obligation (contingent or
otherwise) to do so, except:


 


(i) each of Holdings and the Borrower may declare
and pay dividends with respect to its common stock payable solely in additional
shares of its common stock, and, with respect to its preferred stock, payable
solely in additional shares of such preferred stock or in shares of its common
stock;


 


(ii) Subsidiaries may declare and pay dividends ratably
with respect to their capital stock, membership or partnership interests or
other similar Equity Interests;


 


(iii) Holdings may (or may make Restricted
Payments to allow a Parent to) purchase or redeem (and the Borrower may declare
and pay dividends or make other distributions to Holdings, the proceeds of
which are used by Holdings or a Parent to purchase or redeem) Equity Interests
of Holdings or a Parent acquired by employees, consultants or directors of
Holdings, the Borrower or any Subsidiary upon such Person’s death, disability,
retirement or termination of employment, provided that the aggregate
amount of such purchases or redemptions under this clause (iii) shall not
exceed $10,000,000 during the term of this Agreement;


 


(iv) the Borrower may make Restricted Payments to
Holdings to be used by Holdings solely to pay (or to make Restricted Payments
to allow a Parent to pay) its franchise taxes and other fees required to
maintain its corporate existence and to pay for general corporate and overhead
expenses (including salaries and other compensation of employees) incurred by
Holdings or a Parent in the ordinary course of its business, provided
that such Restricted Payments shall not exceed $2,000,000 in any fiscal year;


 


(v) the Borrower may make Restricted Payments to
Holdings in an amount necessary to enable Holdings to pay (or make Restricted
Payments to allow a Parent to pay) the Taxes directly attributable to (or
arising as a result of) the operations of a Parent, Holdings, the Borrower and
the Subsidiaries, provided that (A) the amount of such Restricted
Payments shall


 


68

















 


not exceed the amount that the Borrower and the Subsidiaries would be
required to pay in respect of Federal, state and local taxes were the Borrower
and the Subsidiaries to pay such taxes as stand-alone taxpayers (including any
interest or penalties thereon, if applicable) and (B) all Restricted
Payments made to Holdings or a Parent pursuant to this clause (v) are used
by Holdings or a Parent for the purposes specified herein within 20 days of the
receipt thereof;


 


(vi) cashless repurchases of Equity Interests of
Holdings 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;


 


(vii) the Borrower may make Restricted Payments
to Holdings to make interest payments on Qualified Holdings Debt so long as (A) no
Default or Event of Default has occurred and is continuing or would result therefrom
and (B) the Leverage Ratio after giving pro forma effect thereto is equal
to or less than 3.75 to 1.00;


 


(viii) the Borrower may make Restricted Payments
to Holdings (and Holdings may make Restricted Payments with such amounts
received from the Borrower) to pay management, consulting and advisory fees to
any Sponsor or Sponsor Affiliate to the extent permitted by Section 6.09;


 


(ix) the Borrower and the Subsidiaries may make
additional Restricted Payments (and Holdings may make Restricted Payments with
such amounts received from the Borrower) in an aggregate amount not exceeding
the Available Amount immediately prior to the time of the making of such
Restricted Payment; provided, that (A) immediately prior to and
after giving effect to such Restricted Payment, the Leverage Ratio is less than
or equal to 4.25 to 1.00 and (B) no Default or Event of Default has
occurred and is continuing or would result therefrom;


 


(x) the Borrower may make Restricted Payments to
Holdings to pay any nonrecurring fees, cash charges and cost expenses incurred
in connection with the issuance of Equity Interests, in each case only lo the
extent that such transaction is not consummated;


 


(xi) payments to former stockholders of the Borrower
in connection with the exercise of appraisal rights under applicable law;


 


(xii) the payment of dividends described in Schedule
4.01(h);


 


(xiii) the Borrower and its Subsidiaries may make
additional Restricted Payments (and Holdings may make Restricted Payments with
such amounts received from the Borrower) in an aggregate amount not to exceed
$10,000,000, provided that no Default or Event of Default has occurred
and is continuing or would result therefrom;


 


(xiv) subject to the requirements of Section 2.11,
Holdings may make Restricted Payments with the Net Proceeds received by
Holdings from any issuance of any Equity Interests (or capital contribution in
respect thereof) or Qualified Holdings Debt to the extent such Net Proceeds are
not contributed or otherwise received by the Borrower or any of its
Subsidiaries; provided that no Default or Event of Default has occurred
and is continuing or would result therefrom; and


 


(xv) the Borrower may make Restricted Payments to
Holdings and Holdings may purchase or redeem the Specified Interests in accordance
with the Stockholders Agreement in an aggregate amount not to exceed
$20,000,000; provided, that (A) no Default or Event of Default


 


69

















 


has occurred and is continuing or would result therefrom and (B) after
giving effect thereto and any Borrowings to finance the payment thereof, the
Borrower is in pro forma compliance with the financial covenants set forth in
Sections 6.12 and 6.13.


 


(b) The Borrower will not nor will it permit any Subsidiary to,
make or agree to pay or make, directly or indirectly, any payment or other
distribution (whether in cash, securities or other property) of or in respect
of principal of or interest on, or any payment or other distribution (whether
in cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of, any Subordinated Indebtedness (other than
intercompany loans among Subsidiaries and the Borrower), except:


 


(i) payment of regularly scheduled interest and
principal payments as and when due in respect of any Subordinated Indebtedness,
other than as prohibited by the subordination provisions thereof;


 


(ii) the conversion or exchange of any
Subordinated Indebtedness into, or redemption, repurchase, prepayment,
defeasance or other retirement of any such Indebtedness with the Net Proceeds
of the issuance by Holdings or a Parent of, (A) Equity Interests (or
capital contributions in respect thereof) after the Closing Date to the extent
not Otherwise Applied or (B) Qualified Holdings Debt, plus any fees
and expenses in connection with such conversion, exchange, redemption,
repurchase, prepayment, defeasance or other retirement;


 


(iii) so long as no Default or Event of Default
has occurred and is continuing or would result therefrom, the prepayment,
repayment, redemption, defeasance, repurchase or other retirement of
Subordinated Indebtedness (A) in an aggregate amount not to exceed the
Available Amount; provided, that immediately prior to and after giving
effect to such payments, the Leverage Ratio is less than or equal to 4.25 to
1.00, or (B) with proceeds received from the incurrence of Additional
Subordinated Debt permitted by Section 6.01; and


 


(iv) so long as no Default or Event of Default
has occurred and is continuing or would result therefrom, the prepayment,
redemption, defeasance, repurchase or other retirement of the Senior
Subordinated Notes with the proceeds of an IPO.


 


(c) Neither Holdings nor the Borrower will allow,
at any time, less than 51 % of the Senior Subordinated Notes to be held by one
or more of the Sponsor and the Sponsor Affiliates.


 


SECTION 6.09. Transactions with Affiliates. Neither
Holdings nor the Borrower will, nor will they permit any Subsidiary to, sell,
lease or otherwise transfer any property or assets to, or purchase, lease or
otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except


 


(a) transactions that are at prices and on terms
and conditions not less favorable to Holdings, the Borrower or such Subsidiary
than could be obtained on an arm’s-length basis from unrelated third parties,


 


(b) (i) transactions between or among the
Borrower and the Subsidiary Loan Parties, and (ii) transactions between or
among the Borrower and its subsidiaries consistent with past practice and made
in the ordinary course,


 


(c) any investment permitted under Section 6.04(iv),
6.04(v), 6.04(vii) or 6.04(xiii),


 


70














 


(d) any Indebtedness permitted under Section 6.01(a)(v) and
Section 6.01(a)(xii),


 


(e) any Restricted Payment permitted under Section 6.08,


 


(f) loans or advances to employees permitted
under Section 6.04,


 


(g) any lease entered into between the Borrower or
any Subsidiary, as lessee, and any of the Affiliates (as of the Closing Date)
of the Borrower or entity controlled by such Affiliates, as lessor, which is
approved in good faith by a majority of the disinterested members of the Board
of Directors of the Borrower,


 


(h) so long as no Default described in Section 7.01(b) and
no Event of Default has occurred and is continuing, the Borrower may pay, or
may pay cash dividends to enable Holdings to pay, (A) customary
management, consulting, monitoring or advisory fees to the Sponsor or any
Sponsor Affiliates in an aggregate amount not greater than $500,000 during any
fiscal year (plus any unpaid management, consulting, monitoring or advisory
fees within such amount accrued in any prior year) and (B) fees in respect
of any financings, acquisitions or dispositions with respect to which the
Sponsor or any Sponsor Affiliate acts as an adviser to Holdings, the Borrower
or any Subsidiary in an amount not to exceed 2.0% of the value of any such
transaction,


 


(i) any contribution to the capital of Holdings
directly or indirectly by the Permitted Investors or any purchase of Equity
Interests of Holdings by the Permitted Investors not prohibited by this
Agreement,


 


(j) the payment of reasonable fees to directors
of Holdings, the Borrower or any Subsidiary who are not employees of Holdings,
the Borrower or any Subsidiary, and compensation and employee benefit
arrangements paid to, and indemnities provided for the benefit of, directors,
officers or employees of Holdings, the Borrower or any Subsidiary in the
ordinary course of business,


 


(k) any issuances of securities or other
payments, awards or grants in cash, securities or otherwise pursuant to, or the
funding of, employment agreements, stock options and stock ownership plans
approved by the Borrower’s Board of Directors,


 


(l) transactions pursuant to agreements set forth
on Schedule 6.09 and any amendments thereto to the extent such
amendments are not materially less favorable to the Borrower or such Subsidiary
Loan Party than those provided for in the original agreements,


 


(m) employment and severance arrangements entered
into in the ordinary course of business and approved by the Borrower’s Board of
Directors between a Parent, Holdings, the Borrower or any Subsidiary and any
employee thereof, and


 


(n) the Transactions, including the payment of
the dividend and all related fees and expenses.


 


SECTION 6.10. Restrictive Agreements.


 


(a) Subject to clauses (b) through (d) below, neither
Holdings nor the Borrower will, nor will they permit any Subsidiary to,
directly or indirectly, enter into, incur or permit to exist any agreement or
other arrangement that prohibits, restricts or imposes any condition upon (i) the
ability of Holdings, the Borrower or any Subsidiary to create, incur or permit
to exist any Lien upon any of its


 


71

















 


property or assets
or (ii) the ability of any Subsidiary to pay dividends or other
distributions with respect to any shares of its capital stock or to make or
repay loans or advances to the Borrower or any other Subsidiary or to Guarantee
Indebtedness of the Borrower or any other Subsidiary.


 


(b) The foregoing clause (a) shall not apply to restrictions
and conditions (i) imposed by law or by any Loan Document, Senior
Subordinated Notes Document or documentation governing any Additional
Subordinated Debt or Indebtedness of a Foreign Subsidiary permitted to be
incurred under this Agreement (provided that such restrictions shall
apply only to such Foreign Subsidiary) (ii) existing on the date hereof
identified on Schedule 6.10 (but shall apply to any extension or renewal
of, or any amendment or
modification expanding the scope of, any such restriction or condition), (iii) contained
in agreements relating to the sale of a Subsidiary pending such sale, provided
such restrictions and conditions apply only to the Subsidiary that is to be
sold and such sale is permitted hereunder and (iv) imposed by any
customary provisions restricting assignment of any agreement entered into the
ordinary course of business.


 


(c) The foregoing clause (a)(i) shall not apply to
restrictions or conditions (i) imposed by any agreement relating to
secured Indebtedness permitted by this Agreement if such restrictions or
conditions apply only to the property or assets securing such Indebtedness and (ii) imposed
by customary provisions in leases restricting the assignment thereof.


 


(d) The foregoing clause (a)(ii) shall not apply to customary
provisions in joint venture agreements relating to purchase options, rights of
first refusal or call or similar rights of a third party that owns Equity
Interests in such joint venture.


 


SECTION 6.11. Amendment of Material Documents. Neither
Holdings nor the Borrower will; nor will they permit any Subsidiary to, amend,
modify or waive any of its rights under (a) any Senior Subordinated Notes
Document, (b) the documentation governing any Qualified Holdings Debt, (c) the
documentation governing any Additional Subordinated Debt (d) any Original
Transaction Document or (e) its certificate of incorporation, by-laws or
other organizational documents, in each case to the extent such amendment,
modification or waiver would be materially adverse to the Lenders.


 


SECTION 6.12. Interest Expense Coverage Ratio. The Borrower
will not permit the ratio (the “Interest Expense Coverage Ratio”) of (a) Consolidated
EBlTDA to (b) cash interest expense of Holdings and its subsidiaries, in
each case for any period of four consecutive fiscal quarters (or, if less, the
number of full fiscal quarters subsequent to the Original Closing Date) ending
on any date set forth below, to be less than the ratio set forth below opposite
such date:


 


	
  Date

  	
   

  	
  Ratio

  	
   

  
	
  September 30,
  2006

  	
   

  	
  1.75 to l.00

  	
   

  
	
  December 31,
  2006

  	
   

  	
  1.75 to 1.00

  	
   

  
	
  March 31,
  2007

  	
   

  	
  1.75 to 1.00

  	
   

  
	
  June 30,
  2007

  	
   

  	
  1.75 to 1.00

  	
   

  
	
  September 30,
  2007

  	
   

  	
  2.00 to 1.00

  	
   

  
	
  December 31,
  2007

  	
   

  	
  2.00 to 1.00

  	
   

  
	
  March 31,
  2008

  	
   

  	
  2.00 to 1.00

  	
   

  



 


72

















 


	
  Date

  	
   

  	
  Ratio

  	
   

  
	
  June 30,
  2008

  	
   

  	
  2.00 to 1.00

  	
   

  
	
  September 30,
  2008 and thereafter

  	
   

  	
  2.25 to 1.00

  	
   

  



 


provided,
that for the purposes of determining the ratio described above for the fiscal
quarter ending September 30, 2006 and December 31, 2006, cash
interest expense of Holdings and its subsidiaries for the relevant period shall
be deemed to equal cash interest expense of Holdings and its subsidiaries for
such fiscal quarter (and, in the case of each such determination, each previous
fiscal quarter commencing after the Closing Date) multiplied by 2 and
4/3, respectively; provided, further, that any such cash interest
expense that is payable semi-annually and reflected as cash interest expense on
a semi-annual basis shall not be subject to the foregoing proviso to the extent
that the relevant semi-annual period is not contained in full in the applicable
period of four consecutive fiscal quarters.


 


SECTION 6.13. Leverage Ratio. The Borrower will not permit
the Leverage Ratio as of any date set forth below to exceed the ratio set forth
opposite such date:


 


	
  Date

  	
   

  	
  Ratio

  	
   

  
	
  September 30,
  2006

  	
   

  	
  6.50 to 1.00

  	
   

  
	
  December 31,
  2006

  	
   

  	
  6.50 to 1.00

  	
   

  
	
  March 31,
  2007

  	
   

  	
  6.25 to 1.00

  	
   

  
	
  June 30,
  2007

  	
   

  	
  6.25 to 1.00

  	
   

  
	
  September 30,
  2007

  	
   

  	
  6.00 to 1.00

  	
   

  
	
  December 31,
  2007

  	
   

  	
  5.75 to 1.00

  	
   

  
	
  March 31,
  2008

  	
   

  	
  5.50 to 1.00

  	
   

  
	
  June 30,
  2008

  	
   

  	
  5.50 to 1.00

  	
   

  
	
  September 30,
  2008 .

  	
   

  	
  5.25 to 1.00

  	
   

  
	
  December 31,
  2008

  	
   

  	
  5.00 to 1.00

  	
   

  
	
  March 31,
  2009

  	
   

  	
  4.75 to 1.00

  	
   

  
	
  June 30,
  2009

  	
   

  	
  4.75 to 1.00

  	
   

  
	
  September 30,
  2009

  	
   

  	
  4.50 to 1.00

  	
   

  
	
  December 31,
  2009

  	
   

  	
  4.25 to 1.00

  	
   

  
	
  March 31,
  2010

  	
   

  	
  4.00 to 1.00

  	
   

  
	
  June 30,
  2010

  	
   

  	
  4.00 to 1.00

  	
   

  
	
  September 30,
  2010

  	
   

  	
  4.00 to 1.00

  	
   

  
	
  December 31,
  2010 and thereafter

  	
   

  	
  3.75 to 1.00

  	
   

  



 


SECTION 6.14. Intentionally Deleted.


 


SECTION 6.15. Maximum Capital Expenditures. The Borrower
will not, nor will it permit any Subsidiary to, incur or make any Capital
Expenditures except and as set forth below:


 


73

















 




	
   

  	
   

  	
  Maximum

  	
   

  
	
  Fiscal Year

  	
   

  	
  Capital Expenditures

  	
   

  
	
  2006

  	
   

  	
  $

  	
  15 million

  	
   

  
	
  2007

  	
   

  	
  $

  	
  10 million

  	
   

  
	
  2008

  	
   

  	
  $

  	
  10 million

  	
   

  
	
  2009

  	
   

  	
  $

  	
  10 million

  	
   

  
	
  2010

  	
   

  	
  $

  	
  10 million

  	
   

  
	
  2011

  	
   

  	
  $

  	
  10 million

  	
   

  
	
  2012

  	
   

  	
  $

  	
  10 million

  	
   

  
	
  2013

  	
   

  	
  $

  	
  10 million

  	
   

  






 


provided,
however, that to the extent that actual Capital Expenditures made in any
such fiscal year shall be less than the maximum amount set forth above for such
fiscal year (without giving effect to the carryover permitted by this proviso),
the difference between said stated maximum amount and such actual Capital
Expenditures shall, in addition, be available for Capital Expenditures in the
next succeeding fiscal year and, in the case of fiscal year 2006, the excess of
$15,000,000 over actual Capital Expenditures made in fiscal year 2005 shall
also be available; provided further, however, that no portion of the such
amount carried over from the previous fiscal year shall be allocated to Capital
Expenditures in the next fiscal year until the amount allocated to the current
fiscal year is exhausted.


 


ARTICLE VII


 


Events of Default


 


SECTION 7.01. Events of Default. If any of the following
events (any such event, an “Event of Default”) shall occur:


 


(a) the Borrower shall fail to pay any principal of any Loan or
any reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a date
fixed for prepayment thereof or otherwise;


 


(b) the Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount referred to in paragraph (a) of
this Section 7.01) payable under this Agreement or any other Loan
Document, when and as the same shall become due and payable, and such failure
shall continue unremedied for a period of three Business Days;


 


(c) any representation or warranty made or deemed made by or on
behalf of Holdings, the Borrower or any Subsidiary in or in connection with any
Loan Document or any amendment or modification thereof or waiver thereunder, or
in any report, certificate, financial statement or other document furnished
pursuant to or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, shall prove to have been incorrect
in any material respect (except to the extent any such representation or
warranty is qualified by “materially,” “Material Adverse


 


74

















 


Effect” or a
similar term, in which case such representation or warranty shall prove to have
been incorrect in any respect) when made or deemed made;


 


(d) Holdings or the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02, 5.03, 5.04
(with respect to the existence of Holdings and the Borrower), 5.11 or in Article VI;


 


(e) Holdings, the Borrower or any Subsidiary Loan Party shall fail
to observe or perform any covenant, condition or agreement contained in any
Loan Document (other than those specified in paragraph (a), (b) or (d) of
this Section 7.01), and such failure shall continue unremedied for. a
period of 30 days after notice thereof from the Administrative Agent to the
Borrower (which notice will be given at the request of any Lender);


 


(f) Holdings, the Borrower or any Subsidiary shall fail to make
any payment (whether of principal or interest and regardless of amount) in
respect of any Material Indebtedness, when and as the same shall become due and
payable (after giving effect to any applicable grace period);


 


(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) the
holder or holders of any Material Indebtedness or any trustee or agent on its
or their behalf to cause any Material Indebtedness to become due, or to require
the prepayment, repurchase, redemption or defeasance thereof, prior to its
scheduled maturity, provided that this paragraph (g) shall not
apply to secured Indebtedness that becomes due as a result of the voluntary
sale or transfer of the property or assets (to the extent not prohibited under
this Agreement) securing such Indebtedness;


 


(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of Holdings, the Borrower or any Subsidiary or its debts, or
of a substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in effect
or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Holdings, the Borrower or any Subsidiary or
for a substantial part of its assets, and, in any such case, such proceeding or
petition shall continue undismissed for 60 days or an order or decree approving
or ordering any of the foregoing shall be entered;


 


(i) Holdings, the Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect, (ii) consent
to the institution of, or fail to contest in a timely and appropriate manner,
any proceeding or petition described in paragraph (h) of this Section 7.01,
(iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for Holdings, the
Borrower or any Subsidiary or for a substantial part of its assets, (iv) file
an answer admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any formal action for the purpose of effecting any
of the foregoing;


 


(j) Holdings, the Borrower or any Subsidiary shall become unable,
admit in writing its inability or fail generally to pay its debts as they
become due;


 


(k) one or more judgments for the payment of money (to the extent
not paid or covered by insurance provided by a carrier that has acknowledged
its obligation to pay such claim in writing and that has a credit rating of at
least “A” by A.M. Best Company, Inc.) in an aggregate amount in
excess of $10,000,000 shall be rendered against Holdings, the Borrower, any
Subsidiary or any


 


75

















 


combination
thereof and the same shall remain undischarged for a period of 30 consecutive
days during which execution shall not be effectively stayed, or any action
shall be legally taken by a judgment creditor to attach or levy upon any assets
of Holdings, the Borrower or any Subsidiary to enforce any such judgment;


 


(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in liability of the Borrower
and the Subsidiaries in an aggregate amount exceeding $10,000,000 for all
periods;


 


(m) any Lien purported to be created under any Security Document
shall cease to be, or shall be asserted by any Loan Party not to be, a valid
and perfected Lien on any Collateral with a fair value in excess of $5,000,000,
with the priority required by the applicable Security Document, except (i) as
a result of the sale or other disposition of the applicable Collateral in a
transaction permitted under the Loan Documents or (ii) as a result of the
Administrative Agent’s failure to maintain possession of any stock
certificates, promissory notes or other instruments delivered to it under the
Collateral Agreement;


 


(n) any Loan Document shall cease to be in full force and effect
(other than in accordance with the terms of the Loan Documents) or shall for
any reason be asserted by any Loan Party not to be a legal, valid and binding
obligation of any party thereto;


 


(o) the Guarantees of the Obligations by Holdings and the
Subsidiary Loan Parties pursuant to the Collateral Agreement shall cease to be
in full force and effect (other than in accordance with the terms of the Loan
Documents) or shall be asserted by Holdings, the Borrower or any Subsidiary
Loan Party not to be in effect or not to be legal, valid and binding
obligations;


 


(p) the Senior Subordinated Notes, any Additional Subordinated
Debt, any Qualified Holdings Debt or any Guarantees thereof shall cease, for
any reason, to be validly subordinated to the Obligations or the obligations of
Holdings and the Subsidiary Loan Parties in respect of their Guarantees under
the Collateral Agreement, as applicable, as provided in the Senior Subordinated
Notes Documents, the documentation governing any Additional Subordinated Debt
or the documentation governing any Qualified Holdings Debt, as applicable, or
any Loan Party or the holders of at least 25% in aggregate principal amount of
the Senior Subordinated Notes, any series of Additional Subordinated Debt or
any series of Qualified Holdings Debt shall so assert; or


 


(q) a Change in Control shall occur;


 


then, and in every
such event (other than an event with respect to the Borrower described in
paragraph (h) or (i) of this Section 7.01), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the Borrower,
take either or both of the following actions, at the same or different times: (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or
in part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower;
and in case of any event with respect to the Borrower described in paragraph (h) or
(i) of this Section 7.01, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with
accrued interest thereon and all fees and other obligations of the Borrower


 


76

















 


accrued hereunder,
shall automatically become due and payable, without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower.


 


SECTION 7.02. Borrower’s Right to Cure.


 


(a) Notwithstanding anything to the contrary contained in Section 7.01,
in the event that the Borrower fails to comply with the requirement of any
Financial Performance Covenant, until the expiration of the fifth Business Day
subsequent to the date on which financial statements with respect to the fiscal
period for which such Financial Performance Covenant is being measured are
required to be delivered pursuant to Section 5.01, Holdings shall have the
right to issue Permitted Securities (the “Cure Right”), and upon the
receipt by the Borrower of cash (such amount of cash being referred to as the “Cure
Amount”) pursuant to the exercise by Holdings of such Cure Right, such
Financial Performance Covenants shall be recalculated giving effect to the
following pro forma adjustments:


 


(i) Consolidated EBITDA shall be increased,
solely for the purpose of determining the existence of a Default or Event of
Default under the Financial Performance Covenants with respect to any period of
four consecutive fiscal quarters that includes the fiscal quarter for which the
Cure Right was exercised and not for any other purpose under this Agreement, by
an amount equal to the Cure Amount; and


 


(ii) if, after giving effect to the foregoing
recalculations, the Borrower shall then be in compliance with the requirements
of all Financial Performance Covenants (including for purposes of Section 4.02),
the Borrower shall be deemed to have satisfied the requirements of the Financial
Performance Covenants as of the relevant date of determination with the same
effect as though there had been no failure to comply therewith at such date,
and the applicable breach or default of the Financial Performance Covenants
that had occurred shall be deemed cured for the purposes of this Agreement.


 


(b) Notwithstanding anything herein to the contrary, the Cure
Amount shall not exceed $10,000,000; provided that any such prepayment
shall not reduce any Lender’s Revolving Commitment; provided  further
that (a) in each four fiscal quarter period there shall be a period of at
least two fiscal quarters in which no Cure Right is made, (b) in each
eight fiscal quarter period there shall be a period of at least four
consecutive fiscal quarters during which no Cure Right is made and (c) the
Cure Amount shall be no greater than the amount required to cause Borrower to
be in compliance with such Financial Performance Covenant.


 


SECTION 7.03. Exclusion of Immaterial Subsidiaries. Solely
for the purposes of determining whether a Default has occurred under clause (h) or
(i) of Section 7.01, any reference in any such clause to any
Subsidiary shall be deemed not to include any Subsidiary affected by any event
or circumstance referred to in any such clause that did not, as of the last day
of the fiscal quarter of the Borrower most recently ended, have assets with a
value in excess of 5% of the consolidated total assets of the Borrower and the
Subsidiaries or 5% of the total revenues of the Borrower and the Subsidiaries
as of such date; provided that if it is necessary to exclude more than
one Subsidiary from clause (h) or (i) of Section 7.01 pursuant
to this Section 7.03 in order to avoid an Event of Default thereunder, all
excluded Subsidiaries shall be considered to be a single consolidated
Subsidiary for purposes of determining whether the condition specified above is
satisfied.


 


77

















 


ARTICLE VIII


 


The Agents


 


SECTION 8.01.  The Agents.
Each of the Lenders and the Issuing Bank hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms of the Loan Documents, together with such
actions and powers as are reasonably incidental thereto. For purposes of this Article VIII,
all references to the Administrative Agent shall be deemed to be references to
both the Administrative Agent and the Collateral Agent.


 


The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.


 


The Administrative Agent shall not have any duties or obligations except
those expressly set forth in the Loan Documents. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be
subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent shall
not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated by the Loan Documents that the Administrative Agent is required to
exercise in writing as directed by the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 2.05(j) and Section 9.02), and (c) except
as expressly set forth in the Loan Documents, the Administrative Agent shall
not have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to Holdings, the Borrower or any of the
Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by
it with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02) or in the absence of its own
gross negligence or willful misconduct. The Administrative Agent shall be
deemed not to have knowledge of any Default unless and until written notice
thereof is given to the Administrative Agent by Holdings, the Borrower or a
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered thereunder or
in connection therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness
of any Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any
Loan Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.


 


The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.


 


The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more subagents
appointed by the Administrative Agent. The Administrative Agent and any such
subagent may perform any and all its duties and exercise its rights and


 


78

















 


powers through
their respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such subagent and to the Related Parties of each
Administrative Agent and any such subagent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.


 


The Administrative Agent may resign at any time by notifying the
Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the
Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor. If no 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 and the Issuing
Bank, appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the Administrative Agent’s
resignation hereunder, the provisions of this Article and Section 9.03
shall continue in effect for the benefit of such retiring Administrative Agent,
its subagents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while it was acting as
Administrative Agent.


 


Each Lender acknowledges 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 credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges 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 from time to time deem appropriate, continue lo make
its own decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or related agreement or any document
furnished hereunder or thereunder.


 


The Issuing Bank shall act on behalf of the Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith, and the
Issuing Bank shall have all of the benefits and immunities (i) provided to
this Article VIII with respect to any acts taken or omissions suffered by
the LC Issuer in connection with Letters of Credit issued by it or proposed to
be issued by it and Issuer Documents pertaining to such Letters of Credit as
fully as if the term “Administrative Agent” as used in this Article VIII
included the Issuing Bank with respect to such acts or omissions, and (B) as
additionally provided herein with respect to the issuing Bank.


 


The Arrangers and the Syndication Agent, in their respective capacities
as such, shall have no duties or responsibilities, and shall incur no
liability, under this Agreement and the other Loan Documents.


 


ARTICLE IX


 


Miscellaneous


 


SECTION 9.01. Notices.


 


(a) All notices and other communications provided for herein shall
be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:


 


79














 


(i) if to the Borrower, to AGA Medical
Corporation, 682 Mendelssohn Avenue, Golden Valley, Minnesota 55427, Attention:
Chief Executive Officer (Telecopy No. (763) 513-9226);


 


(ii) if to the Administrative Agent, the
Collateral Agent or the Swingline Lender, to Lehman Commercial Paper Inc., 745
Seventh Avenue, New York, New York 10019, Attention: Maritza Ospine (Telecopy No. (646)
758-4648), with a copy to Weil, Gotshal & Manges LLP, 767 Fifth
Avenue, New York, NY 10153, Attention: Andrew Colao, Esq. Telecopy No. (212
310-8007); and


 


(iii) if to any other Lender, to it at its
address (or telecopy number) set forth in its Administrative Questionnaire.


 


(b) Notices and other communications to the Lenders hereunder may
be delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent, provided that the foregoing shall
not apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may
be limited to particular notices or communications.


 


(c) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the Administrative
Agent (and, in the case of the Administrative Agent, by written notice to the
Borrower). All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.


 


SECTION 9.02. Waivers; Amendments.


 


(a) No failure or delay by the Administrative Agent, the Issuing
Bank, the Collateral Agent, the Swingline Lender or any Lender in exercising
any right or power hereunder or under any other Loan Document shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Administrative Agent, the
Issuing Bank, the Collateral Agent, the Swingline Lender and the Lenders
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver
of any provision of any Loan Document or consent to any departure by any Loan
Party therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section 9.02, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given. Without limiting the generality of the foregoing, the making
of a Loan or issuance of a Letter of Credit shall not be construed as a waiver
of any Default, regardless of whether the Administrative Agent, any Lender, the
Collateral Agent, the Swingline Lender or the Issuing Bank may have had notice
or knowledge of such Default at the time.


 


(b) Except as provided in Section 2.20 with respect to an
Incremental Facility Amendment (or to give effect to any restatement of this
Agreement, the substantive terms of which are otherwise permitted hereby),
neither this Agreement nor any other Loan Document nor any provision hereof or
thereof may be waived, amended or modified except, in the case of this
Agreement, pursuant to an agreement or agreements in writing entered into by
Holdings, the Borrower and the Required Lenders or, in the case of any other
Loan Document, pursuant to an agreement or agreements in writing entered


 


80

















 


into by the
Administrative Agent and the Loan Party or Loan Parties that are parties
thereto, in each case with the consent of the Required Lenders; provided
that no such agreement shall


 


(i) increase the Commitment of any Lender without
the written consent of such Lender,


 


(ii) reduce the principal amount of any Loan or
LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,


 


(iii) postpone the maturity of any Loan, or any
scheduled date of payment of the principal amount of any Tranche B Term Loan
under Section 2.10, the required date of reimbursement of any LC
Disbursement, or any date for the payment of any interest or fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Commitment, without the
written consent of each Lender affected thereby,


 


(iv) change Section 2.18(b) or (c) in
a manner that would alter the pro  rata sharing of payments
required thereby, without the written consent of each Lender,


 


(v) change any of the provisions of this Section 9.02
or the percentage set forth in the definition of “Required Lenders” or any
other provision of any Loan Document specifying the number or percentage of
Lenders (or Lenders of any Class) required to waive, amend or modify any rights
thereunder or make any determination or grant any consent thereunder, without
the written consent of each Lender (or each Lender of such Class, as
applicable),


 


(vi) release Holdings or any Subsidiary Loan
Party from its Guarantee under the Collateral Agreement (except as provided in Section 9.15
or in the Collateral Agreement) or limit its liability in respect of such
Guarantee, without the written consent of each Lender,


 


(vii) release all or substantially all the
Collateral from the Liens of the Security Documents (except as provided in Section 9.15
or in the Collateral Agreement), without the written consent of each Lender, or


 


(viii) change any provisions of any Loan Document
in a manner that by its terms adversely affects the rights in respect of
payments due to Lenders holding Loans of any Class differently than those
holding Loans of any other Class, without the written consent of Lenders
holding a majority in interest of the outstanding Loans and unused Commitments
of each adversely affected Class, or


 


(ix) impose restrictions on assignments and
participations that are more restrictive than, or additional to, those set
forth in Section 9.04, without the written consent of each Lender affected
thereby,


 


provided,
further, that (A) no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent, the Issuing
Bank or the Swingline Lender without the prior written consent of the
Administrative Agent, the Issuing Bank or the Swingline Lender, as applicable,
and (B) any waiver, amendment or modification of this Agreement that by
its terms affects the rights or duties under this Agreement of the Revolving
Lenders (but not the Tranche B Term Loan Lenders) or the Tranche B Term Loan
Lenders (but not the Revolving Lenders) may be effected by an agreement or
agreements in writing entered into by Holdings, the Borrower and requisite
percentage in interest of the affected Class of


 


81

















 


Lenders that would
be required to consent thereto under this Section 9.02(b) if such Class of
Lenders were the only Class of Lenders hereunder at the time. In
connection with any proposed amendment, modification, waiver or termination (a “Proposed
Change”) requiring the consent of all affected Lenders, if the consent of
the Supermajority Lenders (and, to the extent any Proposed Change requires the
consent of Lenders holding Loans of any Class pursuant to clause (viii) of
this Section 9.02(b), the consent of not less than 75% in interest of the
outstanding Loans and unused Commitments of such Class) to such Proposed Change
is obtained, but the consent to such Proposed Change of other Lenders whose
consent is required is not obtained (any such Lender whose consent is not
obtained as described in this Section 9.02(b) being referred to as a “Non-Consenting
Lender”), then, so long as the Lender that is acting as the Administrative
Agent is not a Non-Consenting Lender, at the Borrower’s request, any assignee
that is acceptable to the Administrative Agent shall have the right, with the
Administrative Agent’s consent, to purchase from such Non-Consenting Lender,
and such Non-Consenting Lender agrees that it shall, upon the Borrower’s
request, sell and assign to such assignee, at no expense to such Non-Consenting
Lender, all the Commitments, Tranche B Term Loans and Revolving Exposure of
such Non-Consenting Lender for an amount equal to the principal balance of all
Tranche B Term Loans and Revolving Loans (and funded participations in
Swingline Loans and unreimbursed LC Disbursements) held by such Non-Consenting
Lender and all accrued interest and fees with respect thereto through the date
of sale (including amounts under Sections 2.15, 2.16 and 2.17), such purchase
and sale to be consummated pursuant to an executed Assignment and Assumption in
accordance with Section 9.04(b) (which Assignment and Assumption need
not be signed by such Non-Consenting Lender).


 


(c) Notwithstanding the provisions of clause (b), this Agreement
may be amended (or amended and restated) with the written consent of the
Required Lenders, the Administrative Agent, Holdings and the Borrower (i) to
add one or more additional credit facilities to this Agreement and to permit
the extensions of credit from time to time thereunder and the accrued interest
and fees in respect thereof to share ratably in the benefits of this Agreement
and the other Loan Documents with the Tranche B Term Loans and the Revolving
Loans  and the accrued interest
and fees in respect thereof, and (ii) to include appropriately the Lenders
holding such credit facilities in any determination of the Required Lenders. In
addition, this Agreement may be amended with the written consent of the
Administrative Agent, Holdings, the Borrower and the Lenders providing the
relevant Replacement Term Loans (as defined below) to permit the refinancing of
all outstanding Tranche B Term Loans (the “Refinanced Tranche B Term Loans”)
with a replacement term loan tranche hereunder (the “Replacement Term Loans”);
provided that (i) the aggregate principal amount of such
Replacement Term Loans shall not exceed the aggregate principal amount of such
Refinanced Tranche B Term Loans, (ii) the Term Loan Applicable Rate for
such Replacement Term Loans shall not be higher than the Term Loan Applicable
Rate for such Refinanced Tranche B Term Loans, (iii) the weighted average
life to maturity of such Replacement Term Loans shall not be shorter than the
weighted average life to maturity of such Refinanced Tranche B Term Loans at
the time of such refinancing (except to the extent of nominal amortization for
periods where amortization has been eliminated as a result of prepayment of the
Tranche B Term Loans) and (iv) all other terms applicable to such
Replacement Term Loans shall be substantially identical to, or less favorable
to the Lenders providing such Replacement Term Loans than, those applicable to
such Refinanced Tranche B Term Loans, except to the extent necessary to provide
for covenants and other terms applicable to any period after the latest final
maturity of the Tranche B Term Loans in effect immediately prior to such
refinancing.


 


SECTION 9.03. Expenses; Indemnity; Damage Waiver.


 


(a) The Borrower shall pay (i) all reasonable out-of-pocket
expenses incurred by the Agents and their respective Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Agents and
charges of Intralinks, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of the Loan
Documents or any amendments,


 


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modifications or
waivers of the provisions thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket
expenses incurred by the Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder and (iii) all reasonable out-of-pocket expenses
incurred by the Administrative Agent, the Issuing Bank or any Lender, including
the reasonable fees, charges and disbursements of any counsel for the
Administrative Agent, the Issuing Bank or any Lender, in connection with the
enforcement or protection of its rights in connection with the Loan Documents,
including its rights under  this Section 9.03,
or in connection with the Loans made or Letters of Credit issued hereunder,
including all such reasonable out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.


 


(b) The Borrower shall indemnify the Administrative Agent, the
Issuing Bank and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an “Indemnitee”), and hold each
Indemnitee harmless, from and against any and all losses, claims, damages,
liabilities and related expenses, including the fees, charges and disbursements
of any counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of any Loan Document or any other agreement or instrument
contemplated hereby, the performance by the parties to the Loan Documents of
their respective obligations thereunder or the consummation of the Transactions
or any other transactions contemplated 
hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by the Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or Release of Hazardous
Materials on or from any Mortgaged Property or any other property currently or
formerly owned or operated by the Borrower or any of its Subsidiaries, or any
actual or alleged Environmental Liability related in any way to the Borrower or
any of its Subsidiaries or  their
respective properties or operations, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory, whether brought
by a third party or by the Borrower or any other Loan Party, and regardless of
whether any Indemnitee is a party thereto, provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses are finally judicially
determined by a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of such Indemnitee.


 


(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent, the Issuing Bank or the
Swingline Lender under paragraph (a) or (b) of this Section 9.03
(and without limiting its obligation to do so), each Lender severally agrees to
pay to the Administrative Agent, the Issuing Bank or the Swingline Lender, as
applicable, such Lender’s pro  rata share (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought)
of such unpaid amount, provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as  applicable, was incurred by or asserted
against the Administrative Agent, the Issuing Bank or the Swingline Lender in
its capacity as such; provided further that any obligation to indemnify
the Issuing Bank or the Swingline Lender pursuant to this Section 9.03(c) shall
be limited to Revolving Lenders only. For purposes hereof, a Lender’s “pro
rata share” shall be determined based upon its share of the aggregate
Revolving Exposures, outstanding Tranche B Term Loans and unused Commitments at
the time.


 


(d) To the extent permitted by applicable law, neither Holdings
nor the Borrower shall assert, and each hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or Letter of Credit
or the use of the proceeds thereof.


 


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(e) All amounts due under this Section 9.03 shall be payable
not later than three days after written demand therefor.


 


(f) The Borrower agrees that any indemnification or other
protection provided to any . “Indemnitee pursuant to the Existing Credit
Agreement (including pursuant to Section 9.03 thereof) or any other Loan
Document (as defined in the Existing Credit Agreement and each an “Existing
Loan Document”) shall survive the effectiveness of this Agreement and any
indemnification or other protection provided to any Indemnitee pursuant to the
Existing Credit Agreement, any other Existing Loan Document, this Agreement
(including pursuant to this Section 9.03) or any other Loan Document shall
(i) survive payment in full of the Obligations and (ii) inure to the
benefit of any Person that was at any time an Indemnitee under the Existing
Credit Agreement, any other Existing Loan Document, this Agreement or any other
Loan Document.


 


SECTION 9.04. Successors and Assigns.


 


(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of the Issuing Bank that
issues any Letter of Credit), except that (i) the Borrower may not assign
or otherwise transfer any of its rights or obligations hereunder without the
prior written consent of each Lender (and any attempted assignment or transfer
by 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. Nothing in this Agreement, express or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), Participants
(to the extent provided in paragraph (c) of this Section 9.04) and,
to the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.


 


(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below,
any Lender may assign to one or more assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it) with the prior written
consent (such consent, other than in the case of the Borrower, not to be
unreasonably withheld or delayed) of:


 


(1) the Borrower, provided that no consent
of the Borrower shall be required for an assignment to a Lender, an Affiliate
of a Lender, an Approved Fund (as defined below), for an assignment of all or
any portion of a Tranche B Term Loan or, if an Event of Default pursuant to Section 7.01
(a), (b), (h) or (i) has occurred and is continuing, any other
assignee;


 


(2) the Administrative Agent, provided
that no consent of the Administrative Agent shall be required for an assignment
of all or any portion of a Tranche B Term Loan to a Lender, an Affiliate of a
Lender or an Approved Fund; and


 


(3) the Issuing Bank, provided that no
consent of the Issuing Bank shall be required for an assignment of all or any
portion of a Tranche B Term Loan.


 


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


 


(1) except in the case of an assignment to a
Lender or 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 of any
Class, the amount of the Commitment or Loans of the assigning


 


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Lender subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $2,500,000 or, in the case of a
Tranche B Term Loan, $1,000,000 (treating simultaneous assignments by or to
related Approved Funds as a single assignment for purposes of such requirement)
and the assigning Lender (if it shall retain any commitments or Loans) shall
have commitments and Loans aggregating at least $2,500,000 in the case of
Revolving Credit Loans and $1,000,000 in the case of Tranche B Term Loans, in
each case unless each of the Borrower and the Administrative Agent otherwise
consents; provided that no such consent of the Borrower shall be
required if an Event of Default has occurred and is continuing;


 


(2) 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; provided that this clause shall not be
construed to prohibit assignment of a proportionate part of all the assigning
Lender’s rights and obligations in respect of one Class of Commitments or
Loans;


 


(3) the parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together
with a processing and recordation fee of $3,500; provided that only one
such fee shall be imposed in the case of simultaneous assignments by or to
related Approved Funds; and


 


(4) the assignee, if it is not already a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire.


 


For purposes of this Section 9.04(b):


 


“Approved Fund” means (a) a CLO and (b) with
respect to any Lender that is a fund which invests in bank loans and similar
extensions of credit, any other fund that invests in bank loans and similar
extensions of credit and is managed or advised by the same investment advisor
as such Lender or by an Affiliate of such investment advisor.


 


“CLO” means any entity (whether a corporation,
partnership, trust or otherwise) that is engaged in making, purchasing, holding
or otherwise investing in bank loans and similar extensions of credit in the
ordinary course and is administered or managed by a Lender or an Affiliate of
such Lender.


 


(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section 9.04, from and after the effective
date specified in each Assignment and Assumption the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 9.04 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 paragraph (c) of this Section 9.04.


 


(iv) The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at one of its offices a copy of each Assignment
and Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitment of, and principal amount of
the Loans and LC Disbursements owing to, each Lender pursuant to the terms
hereof


 


85

















 


from time to time
(the “Register”). The entries in the Register shall be conclusive absent
manifest error, and the Borrower, the Administrative Agent, the Issuing Banks
and the Lenders may 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, the Issuing Banks and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.


 


(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee’s completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section 9.04 and any written consent to such assignment required by
paragraph (b) of this Section 9.04, the Administrative Agent shall
accept such Assignment and Assumption and record the information contained
therein in the Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
paragraph.


 


(c) (i) Any Lender may, without the consent of the Borrower,
the Administrative Agent, the Issuing Banks or the Swingline Lender, sell
participations to one or more banks or other entities (a “Participant”)
in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitment 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, the Issuing Banks 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, provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver described in the first proviso
to Section 9.02(b) that affects such Participant. Subject to
paragraph (c)(ii) of this Section 9.04, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section 9.04. To the
extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.08 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.18(c) as though it were
a Lender.


 


(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower’s prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.17
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with Section 2.17(e) as
though it were a Lender.


 


(d) Any
Lender may, without the consent of the Borrower or the Administrative Agent, at
any time pledge, assign or grant a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including
any pledge, assignment or grant to secure obligations to a Federal Reserve
Bank, and this Section 9.04 shall not apply to any such pledge, assignment
or grant of a security interest, provided that no such pledge,
assignment or grant of a security interest shall release a Lender from any of
its obligations hereunder or substitute any such pledge or assignee for such
Lender as a party hereto.


 


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SECTION 9.05.  Survival. All covenants, agreements,
representations and warranties made by the Loan Parties in the Loan Documents
and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement or any other Loan Document shall have independent
significance and be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of the Loan Documents and
the making of any Loans and issuance of any Letters of Credit, regardless of
any investigation made by any such other party or on its behalf and
notwithstanding that the Administrative Agent, the Issuing Bank or any Lender
may have had notice or knowledge of any Default or incorrect representation, or
warranty at the time any credit is extended hereunder, and shall, continue in
full force and effect as long as the principal of or any accrued interest on
any Loan or any fee or any other amount payable under this Agreement is
outstanding and unpaid or any. Letter of Credit is outstanding and so long as
the Commitments have not expired or terminated. The provisions of Sections
2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof.


 


SECTION 9.06. Counterparts; Integration;
Effectiveness. This Agreement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Agreement, the other Loan Documents and any separate
letter agreements with respect to fees payable to the Administrative Agent
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral
or written, relating to the subject matter hereof. Except as provided in Section 4.01,
this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature page of this Agreement
by telecopy shall be effective as delivery of a manually executed counterpart
of this Agreement.


 


SECTION 9.07. Severability. Any provision
of this Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.


 


SECTION 9.08. Right of Setoff. If an Event
of Default shall have occurred and be continuing, each Lender and each of its
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other obligations at any time owing by such Lender or Affiliate to or for the
credit or the account of the Borrower against any of and all the obligations of
the Borrower how or hereafter existing under this Agreement held by such
Lender, irrespective of whether or not such Lender shall have made any demand
under this Agreement and although such obligations may be unmatured. The
applicable Lender shall notify the Borrower and the Administrative Agent of
such setoff or application, provided that any failure to give or any
delay in giving such notice shall not affect the validity of any such setoff or
application under this Section 9.08. The rights of each Lender under this Section 9.08
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.


 


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SECTION 9.09. Governing
Law; Jurisdiction; Consent to Service of Process.


 


(a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.


 


(b) Each of Holdings and the Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to any Loan Document, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may
be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement or any other Loan Document
shall affect any right that the Administrative Agent, the Issuing Bank or any
Lender may otherwise have to bring any action or proceeding relating to this
Agreement or any other Loan Document against Holdings, the Borrower or their
respective properties in the courts of any jurisdiction.


 


(c) Each of Holdings and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any other Loan Document in any court referred to in paragraph (b) of this Section 9.09.
Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.


 


(d) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 9.01. Nothing in
this Agreement or any other Loan Document will affect the right of any party to
this Agreement to serve process in any other manner permitted by law.


 


SECTION 9.10.  WAIVER OF
JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE. THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.10.


 


SECTION 9.11.  Headings.
Article and Section headings and the Table of Contents used herein
are for convenience of reference only, are not part of this Agreement and shall
not affect the construction of, or be taken into consideration in interpreting,
this Agreement.


 


SECTION 9.12. Confidentiality. Each of the Administrative
Agent, the Issuing Banks and the Lenders agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates’ directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such information
confidential), (b) to the extent requested by any regulatory authority or 


 


88

















 


self-regulatory
authority, (c) to the extent required by applicable laws or regulations or
by any subpoena or similar legal process, (d) to any other party to this
Agreement, (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (f) subject
to an agreement containing provisions substantially the same as those of this Section 9.12,
to (i) any assignee of or Participant in, or any prospective assignee of
or Participant in, any of its rights or obligations under this Agreement or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower and its obligations, (g) with the
consent of the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section 9.12
or (ii) becomes available to the Administrative Agent, any Issuing Bank or
any Lender on a noncofidential basis from a source other than Holdings or the
Borrower, provided that such source is not actually known by such
disclosing party to be bound by an agreement containing provisions
substantially the same as those contained in this Section 9.12. For the
purposes of this Section 9.12, the term “Information” means all
information received from Holdings or the Borrower relating to Holdings or the
Borrower or its business, other than any such information that is available to
the Administrative Agent, any Issuing Bank or any Lender on a nonconfidential
basis prior to disclosure by Holdings or the Borrower, provided that, in
the case of information received from Holdings, the Borrower or any Subsidiary
after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality
of Information as provided in this Section 9.12 shall be considered to
have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.


 


SECTION 9.13. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts that are treated as
interest on such Loan under applicable law (collectively, the “Charges”),
shall exceed the maximum lawful rate (the “Maximum Rate”) that may be
contracted for, charged, taken, received or reserved by the Lender holding such
Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the extent lawful, the interest
and Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section 9.13 shall be
cumulated and the interest and Charges payable to such Lender in respect of
other Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall have been received
by such Lender.


 


SECTION 9.14. 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 October 26, 2001)) (the “Patriot
Act”), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender to identify the
Borrower in accordance with the Patriot Act.


 


SECTION 9.15. Release of Collateral. Upon any sale or other
transfer be any Loan Party of any Collateral that is permitted under this
Agreement, or upon the effectiveness of any written consent to the release of
the security interest granted hereby in any Collateral pursuant to Section 9.02
of this Agreement, the security interest in such Collateral shall be
automatically released.


 


SECTION 9.16. Amendment and Restatement.


 


(a) On the Closing Date, the Existing Credit Agreement shall be
amended and restated in its entirety by this Agreement, and the Existing Credit
Agreement shall thereafter be of no further force and effect, except to
evidence the incurrence by the Borrower of the “Obligations” under and


 


89

















 


as defined in the
Existing Credit Agreement (whether or not such “Obligations” are contingent as
of the Closing Date). This Agreement is not in any way intended to constitute a
novation of the obligations and liabilities existing under the Existing Credit
Agreement. The indebtedness and obligations evidenced by this Agreement and the
Loan Documents shall be and shall continue to be secured as set forth in the
Existing Credit Agreement, as amended and restated by this Agreement, and all
of the Loan Documents prior to the Closing Date, and the Liens granted to the
Administrative Agent pursuant to the Loan Documents (as defined in the Existing
Credit Agreement) shall continue in full force and effect during the term of
this Agreement and any renewals thereof.


 


(b) The terms and conditions of this Agreement and the
Administrative Agent’s, the Lenders’ and the Issuing Bank’s rights and remedies
under this Agreement and the other Loan Documents shall apply to all of the
Obligations incurred under the Existing Credit Agreement.


 


(c) On and after the Closing Date, (i) all references to the
Existing Credit Agreement (or to any amendment or any amendment and restatement
thereof) in the Loan Documents (other than this Agreement) shall be deemed to
refer to the Existing Credit Agreement, as amended and restated hereby, (ii) all
references to any article, section or sub-clause of the Existing Credit
Agreement or in any Loan Document (but not herein) shall be amended to become,
mutatis mutandis, references to the corresponding provisions of this Agreement
and (iii) except as the context otherwise provides, on or after the
Closing Date, all references to this Agreement herein (including for purposes
of indemnification and reimbursement of fees) shall be deemed to be reference
to the Existing Credit Agreement, as amended and restated hereby.


 


(d) This amendment and restatement is limited as written and is
not a consent to any other amendment, restatement or waiver, whether or not
similar and, except as expressly provided herein or in any other Loan Document,
all terms and conditions of the Loan Documents remain in full force and effect
unless otherwise specifically amended hereby or any other Loan Document.


 


90

















 


IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first written above.


 


	
   

  	
   

  	
  AGA MEDICAL
  CORPORATION,

  as Borrower

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ Franck
  Gougeon

  
	
   

  	
   

  	
  Name: 

  	
  Franck Gougeon

  
	
   

  	
   

  	
  Title: 

  	
  President &
  CEO

  
					



 


 


	
   

  	
   

  	
  AGA MEDICAL
  HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Franck
  Gougeon

  
	
   

  	
   

  	
  Name:

  	
  Franck Gougeon

  
	
   

  	
   

  	
  Title:

  	
  President &
  CEO

  
					



 


 


[SIGNATURE PAGE TO AMENDED AND RESTATED
CREDIT AGREEMENT]


 

















 


	
   

  	
   

  	
   

  	
  LEHMAN
  COMMERCIAL PAPER INC.,

  as Lender and Administrative Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Craig Malloy

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Craig Malloy

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
						



 


 


[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT]


 

















 


	
   

  	
   

  	
   

  	
  LEHMAN BROTHERS
  COMMERCIAL 

  BANK,

  as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ George James

  
	
   

  	
   

  	
   

  	
  Name:

  	
  George James

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Chief Credit Officer

  
						



 


 


[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT]


 

















 


	
   

  	
   

  	
   

  	
  BANK OF AMERICA,
  N.A.,

  as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ John A.
  Fulton

  
	
   

  	
   

  	
   

  	
  Name:

  	
  John A. Fulton

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
						



 


 


[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT]


 

















 


	
   

  	
   

  	
   

  	
  CITICORP USA,
  INC.,

  as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Hector
  Guenther

  
	
   

  	
   

  	
   

  	
  Name:

  	
       HECTOR
  GUENTHER

  
	
   

  	
   

  	
   

  	
  Title:

  	
             Vice
  President

  
						



 


 


[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT]


 

















 


	
   

  	
   

  	
   

  	
  WACHOVIA BANK,
  NATIONAL

  ASSOCIATION,

  as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Jeanette A.
  Griffin

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Jeanette A.
  Griffin

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Director

  
						



 


 


[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT]