Exhibit 10.1


 


EXECUTION COPY


CREDIT AGREEMENT


dated as of


November 13, 2007,


Among


WINDY CITY INVESTMENTS, INC., as Holdings,


WINDY CITY ACQUISITION CORP.


(to be merged with and into NUVEEN INVESTMENTS, INC.),


as the Merger Sub and Borrower,


THE LENDERS PARTY HERETO


and


DEUTSCHE BANK AG NEW YORK BRANCH,

as Administrative Agent


DEUTSCHE BANK SECURITIES INC.,


WACHOVIA CAPITAL MARKETS, LLC,


MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED,


and


MORGAN STANLEY SENIOR FUNDING, INC.,

as Lead Arrangers and Bookrunners,


WACHOVIA CAPITAL MARKETS, LLC,

as Syndication Agent,


and


MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED,


and


MORGAN STANLEY SENIOR FUNDING, INC.

as Documentation Agents


 

















Table of Contents


 


 


	
   

  	
  Page

  
	
  ARTICLE I Definitions

  	
  2

  
	
   

  	
   

  
	
  Section
  1.01. Defined Terms

  	
  2

  
	
  Section 1.02. Terms Generally

  	
  57

  
	
  Section 1.03. Classification of
  Loans and Borrowings

  	
  58

  
	
  Section 1.04. Rounding

  	
  58

  
	
  Section 1.05. References to
  Agreements and Laws

  	
  58

  
	
  Section 1.06. Times of Day

  	
  58

  
	
  Section 1.07. Timing of Payment
  or Performance

  	
  58

  
	
  Section 1.08. Letter of Credit
  Amounts

  	
  58

  
	
  Section 1.09. Pro Forma
  Calculations

  	
  59

  
	
  Section 1.10. Accounting Terms

  	
  60

  
	
  Section 1.11. Certifications

  	
  60

  
	
   

  	
   

  
	
  ARTICLE II The Credits

  	
  60

  
	
   

  	
   

  
	
  Section 2.01. Commitments

  	
  61

  
	
  Section 2.02. Loans

  	
  61

  
	
  Section 2.03. Borrowing Procedure

  	
  63

  
	
  Section 2.04. Evidence of Debt;
  Repayment of Loans

  	
  63

  
	
  Section 2.05. Fees

  	
  64

  
	
  Section 2.06. Interest on Loans

  	
  65

  
	
  Section 2.07. Default Interest

  	
  66

  
	
  Section 2.08. Alternate Rate of
  Interest

  	
  66

  
	
  Section 2.09. Termination and Reduction
  of Commitments

  	
  66

  
	
  Section 2.10. Conversion and
  Continuation of Borrowings

  	
  67

  
	
  Section 2.11. Repayment of Term
  Borrowings

  	
  68

  
	
  Section 2.12. Optional Prepayment

  	
  69

  
	
  Section 2.13. Mandatory
  Prepayments

  	
  70

  
	
  Section 2.14. Reserve
  Requirements; Change in Circumstances

  	
  73

  
	
  Section 2.15. Change in Legality

  	
  74

  
	
  Section 2.16. Indemnity

  	
  75

  
	
  Section 2.17. Pro Rata Treatment; Intercreditor Agreements

  	
  75

  
	
  Section 2.18. Sharing of Setoffs

  	
  77

  
	
  Section 2.19. Payments

  	
  77

  
	
  Section 2.20. Taxes

  	
  78

  
	
  Section 2.21. Assignment of
  Commitments Under Certain Circumstances; Duty to Mitigate

  	
  80

  
	
  Section 2.22. Swingline Loans

  	
  82

  
	
  Section 2.23. Letters of Credit

  	
  83

  
	
  Section 2.24. Incremental Credit
  Extensions

  	
  87

  



 


 


(i)

















 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE III Representations and
  Warranties

  	
  89

  
	
   

  	
   

  
	
  Section 3.01. Organization;
  Powers

  	
  90

  
	
  Section 3.02. Authorization

  	
  90

  
	
  Section 3.03. Enforceability

  	
  90

  
	
  Section 3.04. Governmental
  Approvals

  	
  90

  
	
  Section 3.05. Financial
  Statements

  	
  91

  
	
  Section 3.06. No Material Adverse
  Change

  	
  91

  
	
  Section 3.07. Title to Properties

  	
  91

  
	
  Section 3.08. Subsidiaries

  	
  91

  
	
  Section 3.09. Litigation;
  Compliance with Laws

  	
  92

  
	
  Section 3.10. Use of Proceeds;
  Federal Reserve Regulations

  	
  92

  
	
  Section 3.11. Investment Company
  Act

  	
  92

  
	
  Section 3.12. Taxes

  	
  92

  
	
  Section 3.13. No Material
  Misstatements

  	
  93

  
	
  Section 3.14. Employee Benefit
  Plans

  	
  93

  
	
  Section 3.15. Environmental
  Matters

  	
  93

  
	
  Section 3.16. Security Documents

  	
  94

  
	
  Section 3.17. Labor Matters

  	
  94

  
	
  Section 3.18. Solvency

  	
  94

  
	
  Section 3.19. Intellectual
  Property

  	
  94

  
	
  Section 3.20. Subordination of
  Junior Financing

  	
  94

  
	
   

  	
   

  
	
  ARTICLE IV Conditions of Lending

  	
  95

  
	
   

  	
   

  
	
  Section 4.01. All Credit Events

  	
  95

  
	
  Section 4.02. First Credit Event

  	
  95

  
	
   

  	
   

  
	
  ARTICLE V Affirmative Covenants

  	
  98

  
	
   

  	
   

  
	
  Section 5.01. Existence; Compliance
  with Laws; Businesses and Properties

  	
  98

  
	
  Section 5.02. Insurance

  	
  98

  
	
  Section 5.03. Taxes

  	
  99

  
	
  Section 5.04. Financial
  Statements; Reports, etc.

  	
  99

  
	
  Section 5.05. Notices

  	
  102

  
	
  Section 5.06. Information
  Regarding Collateral

  	
  102

  
	
  Section 5.07. Maintaining
  Records; Access to Properties and Inspections

  	
  102

  
	
  Section 5.08. Use of Proceeds

  	
  102

  
	
  Section 5.09. Further Assurances

  	
  103

  
	
  Section 5.10. Post-Closing
  Obligations

  	
  106

  
	
  Section 5.11. Designation of
  Subsidiaries

  	
  106

  
	
  Section 5.12. Permitted
  Acquisitions

  	
  107

  



 


 


(ii)

















 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE VI Negative Covenants

  	
  108

  
	
   

  	
   

  
	
  Section 6.01. Limitation on
  Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred
  Stock

  	
  108

  
	
  Section 6.02. Liens

  	
  115

  
	
  Section 6.03. Restricted Payments

  	
  115

  
	
  Section 6.04. Fundamental Changes

  	
  122

  
	
  Section 6.05. Dispositions

  	
  124

  
	
  Section 6.06. Transactions with
  Affiliates

  	
  127

  
	
  Section 6.07. Senior Secured Net
  Leverage Ratio

  	
  130

  
	
  Section 6.08. Restrictive
  Agreements

  	
  130

  
	
  Section 6.09. Limitation on
  Business of Holdings, the Borrower and Its Restricted Subsidiaries

  	
  132

  
	
  Section 6.10. Modification of
  Junior Financing Documentation

  	
  133

  
	
  Section 6.11. Changes in Fiscal
  Year

  	
  133

  
	
  Section 6.12. Acquisitions

  	
  133

  
	
   

  	
   

  
	
  ARTICLE VII Events of Default

  	
  133

  
	
   

  	
   

  
	
  Section 7.01. Events of Default

  	
  133

  
	
  Section 7.02. Right to Cure

  	
  136

  
	
   

  	
   

  
	
  ARTICLE VIII The Administrative
  Agent and the Collateral Agent

  	
  137

  
	
   

  	
   

  
	
  ARTICLE IX Miscellaneous

  	
  141

  
	
   

  	
   

  
	
  Section 9.01. Notices

  	
  141

  
	
  Section 9.02. Survival of
  Agreement

  	
  143

  
	
  Section 9.03. Binding Effect

  	
  143

  
	
  Section 9.04. Successors and
  Assigns

  	
  143

  
	
  Section 9.05. Expenses; Indemnity

  	
  148

  
	
  Section 9.06. Right of Setoff;
  Payments Set Aside

  	
  150

  
	
  Section 9.07. Applicable Law

  	
  150

  
	
  Section 9.08. Waivers; Amendment

  	
  151

  
	
  Section 9.09. Interest Rate
  Limitation

  	
  153

  
	
  Section 9.10. Entire Agreement

  	
  153

  
	
  Section 9.11. WAIVER OF JURY
  TRIAL

  	
  154

  
	
  Section 9.12. Severability

  	
  154

  
	
  Section 9.13. Counterparts

  	
  154

  
	
  Section 9.14. Headings

  	
  154

  
	
  Section 9.15. Jurisdiction;
  Consent to Service of Process

  	
  154

  
	
  Section 9.16. Confidentiality

  	
  155

  
	
  Section 9.17. No Advisory or
  Fiduciary Responsibility

  	
  156

  
	
  Section 9.18. Release of
  Collateral

  	
  156

  



 


 


(iii)

















 


	
   

  	
  Page

  
	
   

  	
   

  
	
  Section 9.19. USA PATRIOT Act
  Notice

  	
  157

  
	
  Section 9.20. Lender Action

  	
  157

  
	
  Section 9.21. Effectiveness of
  Merger

  	
  157

  
	
   

  	
   

  
	
  ARTICLE X Holdings Guaranty

  	
  158

  
	
   

  	
   

  
	
  Section 10.01. Guaranty

  	
  158

  
	
  Section 10.02. Nature of
  Liability

  	
  158

  
	
  Section 10.03. Independent
  Obligation

  	
  159

  
	
  Section 10.04. Authorization

  	
  159

  
	
  Section 10.05. Reliance

  	
  160

  
	
  Section 10.06. Subordination

  	
  160

  
	
  Section 10.07. Waiver

  	
  160

  
	
  Section 10.08. Payments

  	
  161

  
	
  Section 10.09. Maximum Liability

  	
  161

  
	
   

  	
   

  
	
  SCHEDULES

  
	
   

  	
   

  
	
  Schedule 1.01(a)

  	
  —  Subsidiary
  Guarantors

  
	
  Schedule 1.01(b)

  	
  —  Immaterial
  Subsidiaries

  
	
  Schedule 2.01

  	
  —  Lenders and
  Commitments

  
	
  Schedule 3.04

  	
  —  Governmental
  Consents

  
	
  Schedule 3.08

  	
  —  Subsidiaries

  
	
  Schedule 3.09

  	
  —  Litigation

  
	
  Schedule 3.14

  	
  —  Pension
  Plans

  
	
  Schedule 3.15

  	
  —  Environmental
  Matters

  
	
  Schedule 3.17

  	
  —  Labor
  Matters

  
	
  Schedule 3.19

  	
  —  Intellectual
  Property

  
	
  Schedule 6.01

  	
  —  Existing
  Indebtedness

  
	
  Schedule 6.02

  	
  —  Existing
  Liens

  
	
   

  	
   

  
	
  EXHIBITS

  
	
   

  	
   

  
	
  Exhibit A

  	
  —  Form of
  Administrative Questionnaire

  
	
  Exhibit B

  	
  —  Form of
  Assignment and Acceptance

  
	
  Exhibit C-1

  	
  —  Form of
  Borrowing Request

  
	
  Exhibit C-2

  	
  —  Form of
  Letter of Credit Request

  
	
  Exhibit D

  	
  —  Form of
  Guarantee and Collateral Agreement

  
	
  Exhibit E

  	
  —  Form of
  Non-Bank Certificate

  
	
  Exhibit F-1

  	
  —  Form of
  Trademark Security Agreement

  
	
  Exhibit F-2

  	
  —  Form of
  Patent Security Agreement

  
	
  Exhibit F-3

  	
  —  Form of
  Copyright Security Agreement

  
	
  Exhibit G-1

  	
  —  Form of
  Revolving Credit Note

  
	
  Exhibit G-2

  	
  —  Form of
  Term Loan Note

  
	
  Exhibit H

  	
  —  Form of
  Solvency Certificate

  
				



 


 


(iv)

















 


 


CREDIT AGREEMENT dated as
of November 13, 2007 (this “Agreement”), among WINDY CITY INVESTMENTS,
INC., a Delaware corporation (“Holdings”), WINDY CITY ACQUISITION CORP.,
a Delaware corporation (“Merger Sub”), to be merged with and into NUVEEN
INVESTMENTS, INC., a Delaware corporation (the “Company”), the Lenders
(as defined herein), DEUTSCHE BANK AG NEW YORK BRANCH (“DBNY”), as
Administrative Agent and Collateral Agent (in each case, as defined herein) for
the Lenders (as defined herein), DEUTSCHE BANK SECURITIES INC., WACHOVIA
CAPITAL MARKETS, LLC, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
and MORGAN STANLEY SENIOR FUNDING, INC., as lead arrangers (the “Arrangers”)
for the Credit Facilities (as defined herein), WACHOVIA CAPITAL MARKETS, LLC,
as syndication agent, and MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED and MORGAN STANLEY SENIOR FUNDING INC., as documentation
agents.  Capitalized terms used herein
shall have the meanings set forth in Article I.


RECITALS


A.            The Sponsor has formed Holdings which owns all of the
Equity Interests of Merger Sub. 
Immediately following the consummation of the Merger, the Company, shall
assume all Indebtedness (as defined herein) with respect to the Credit
Facilities and all references to the Borrower shall following such assumption,
mean the Company.


B.            To fund a portion of the Merger, the Sponsor,
co-investors, affiliates and management will contribute an amount in cash or
rollover equity to an entity, which will own directly or indirectly 100% of the
outstanding equity of Holdings, which together with the amount of any rollover
equity issued to existing shareholders of the Company, shall be no less than
30.0% of the pro forma total consolidated
capitalization of Holdings (such contribution and rollover, collectively, the “Equity
Investment”).


C.            Pursuant to the Merger Agreement, Holdings will
consummate the Merger in accordance with the terms thereof in all material
respects and Holdings will acquire substantially all of the capital stock of
the Company as a result of a merger by Holdings’ direct subsidiary, Merger Sub
with and into the Company, with the Company being the surviving entity.


D.            To consummate, the transactions contemplated by the
Merger Agreement, Merger Sub will either (A) issue and sell $785,000,000 in
aggregate principal amount of New Senior Notes in a Rule 144A or other private
placement on the Closing Date or (B) if and to the extent the Company does not,
or is unable to, issue the New Senior Notes in an aggregate principal amount of
$785,000,000 in aggregate principal amount on the Closing Date, borrow
$785,000,000, less the amount of the New Senior Notes issued on the Closing
Date, in loans under a new senior unsecured bridge facility.


E.             The Borrower has requested the Lenders to extend credit
in the form of (i) a term loan facility in an aggregate principal amount
of $2,315,000,000 in U.S. dollars on the Closing Date and (ii) a non-amortizing
revolving credit facility in U.S. dollars at any time and from time to time
prior to the Revolving Credit Maturity Date, in an aggregate principal amount
at any time outstanding not in excess of in an aggregate principal amount of
$250,000,000.

















 


F.             The Lenders are willing to extend such credit to the
Borrower and the Issuing Bank is willing to issue Letters of Credit for the
account of the Borrower and its subsidiaries, in each case, on the terms and
subject to the conditions set forth herein. 
Accordingly, the parties hereto agree as follows:


ARTICLE I


 


Definitions


Section 1.01.  Defined Terms.  As used in this Agreement, the following
terms shall 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.


“Acquired Entity or
Business” shall mean either (x) the assets constituting a business division
or product line of any Person not already a subsidiary of the Borrower or
(y) the Equity Interests of any Person, which Person shall, as a result of
the acquisition of such Equity Interests, become a Restricted Subsidiary of the
Borrower (or shall be merged with and into the Borrower or another Restricted
Subsidiary of the Borrower, with the Borrower or such Restricted Subsidiary
being the surviving or continuing Person).


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


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


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


“Acquisition”
shall mean the acquisition through an Investment in Equity Interests, purchase
of assets or by a merger or consolidation resulting in either (i) the
acquisition of all or substantially all of the assets or (ii) a 50% or greater
interest in Equity Interests (including all earnouts) of an Acquired Entity or
Business.


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


“Adjusted LIBO Rate”
shall mean, (a) with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum equal to the product of (i) the LIBO Rate in
effect for such Interest Period and (ii) Statutory Reserves.


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


 


2

















 


“Administrative Agent”
shall mean Deutsche Bank AG New York Branch, in its capacity as administrative
agent for the Lenders, and shall include any successor administrative agent
appointed pursuant to Article VIII.


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


“Affiliate” shall
mean, when used with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls, is
Controlled by or is under common Control with the Person specified; provided,
however, that no Lender (nor any of its Affiliates) shall be deemed to
be an Affiliate of Holdings or any of its subsidiaries by virtue of its
capacity as a Lender hereunder.


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


“Aggregate Revolving
Credit Exposure” shall mean, at any time, the aggregate amount of the
Lenders’ Revolving Credit Exposures at such time.


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


“AHYDO Catch Up
Payment” shall mean any payments in respect of Indebtedness necessary in
order to avoid such Indebtedness being characterized as “applicable high yield
discount obligations” within the meaning of the Code.


“Alternate Base Rate”
shall mean, 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 on the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, as the case may
be.


“Applicable Percentage”
shall mean, for any day, (a) with respect to any Eurodollar Loan or ABR Loan
that is a Term Loan, the applicable percentage per annum set forth below under
the caption “Eurodollar Spread” or “ABR Spread” (based upon the Senior Secured
Net Leverage Ratio as of the relevant date of determination):


	
  Senior Secured Net Leverage Ratio

  	
   

  	
  Eurodollar Spread

  	
   

  	
  ABR Spread

  	
   

  
	
  Category 1 Greater than 3.75 to 1.00

  	
   

  	
  3.00

  	
  %

  	
  2.00

  	
  %

  
	
  Category 2 Less than or equal to 3.75 to 1.00

  	
   

  	
  2.75

  	
  %

  	
  1.75

  	
  %

  



 


and (b) with respect to
any Swingline Loan, the applicable percentage per annum set forth below under
the caption “ABR Spread” and (c) with respect to any Eurodollar Revolving Loan
or ABR Revolving Loan, the applicable percentage per annum set forth below
under the caption “Eurodollar Spread” or “ABR Spread” (based upon the Senior
Secured Net Leverage Ratio as of the relevant date of determination):


 


3

















 


	
  Senior Secured Net Leverage Ratio

  	
   

  	
  Eurodollar Spread

  	
   

  	
  ABR Spread

  	
   

  
	
  Category 1 Greater than 3.75 to 1.0

  	
   

  	
  3.00

  	
  %

  	
  2.00

  	
  %

  
	
  Category 2 Less than or equal to 3.75 to 1.00 but greater than 3.00
  to 1.00

  	
   

  	
  2.75

  	
  %

  	
  1.75

  	
  %

  
	
  Category 3 Less than or equal to 3.00 to 1.00

  	
   

  	
  2.50

  	
  %

  	
  1.50

  	
  %

  



 


In respect of clauses
(a), (b) and (c) of this definition, each change in the
Applicable Percentage resulting from a change in the Senior Secured Net
Leverage Ratio shall be effective on and after the date of delivery to the
Administrative Agent of the Section 5.04 Financials and a Pricing Certificate
indicating such change until and including the date immediately preceding the
next date of delivery of such financial statements and the related Pricing
Certificate indicating another such change. 
Notwithstanding the foregoing, until Holdings shall have delivered the
Section 5.04 Financials and the related Pricing Certificate covering a period
that includes the first full fiscal quarter of Holdings ended after the Closing
Date, the Senior Secured Net Leverage Ratio shall be deemed to be in Category 1
for purposes of determining the Applicable Percentage.  In addition, at the option of the
Administrative Agent and the Required Lenders, (x) at any time during which the
Borrower has failed to deliver the Section 5.04 Financials or the related
Pricing Certificate by the date required thereunder or (y) at any time after
the occurrence and during the continuance of an Event of Default, then the
Senior Secured Net Leverage Ratio shall be deemed to be in the then-existing
Category for the purposes of determining the Applicable Percentage (but only
for so long as such failure or Event of Default continues, after which the
Category shall be otherwise as determined as set forth above).


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


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


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


“Bankruptcy Code”
shall have the assigned to such term in Section 7.01(g).


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


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


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


“Borrowing” shall
mean (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.


 


4

















 


“Borrowing Request”
shall mean a request by a Borrower in accordance with the terms of Section
2.03 and substantially in the form of Exhibit C-1, or such other
form as shall be approved by the Administrative Agent.


“Broker-Dealer
Subsidiary” shall mean any Subsidiary of the Borrower or any other
Subsidiary of the Borrower required to be registered as a broker-dealer under
the Securities Exchange Act of 1934, as amended.


“Business Day”
shall mean any day other than a Saturday, Sunday or day on which banks in New
York City are generally authorized or required by law to close; provided,
however, if such day relates to any interest rate settings as to a
Eurodollar Loan, any fundings, disbursements, settlements and payments in
dollars in respect of any such Eurodollar Loan, or any other dealings in
dollars to be carried out pursuant to this Agreement in respect of any such Eurodollar
Loan, such day shall be a day on which dealings in deposits in dollars are
conducted by and between banks in the London interbank eurodollar market.


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


“Capital Stock”
shall mean:


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


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


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


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


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


“Cash Equivalents”
shall mean:


(a)           dollars;


(b)           (i) 
Sterling, Canadian Dollars, Euro, or any national currency of any
participating member state of the EMU; or


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


 


5

















 


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


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


(e)           repurchase obligations for underlying
securities of the types described in clauses (c), (d) and (f)
entered into with any financial institution meeting the qualifications
specified in clause (d) above;


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


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


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


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


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


(k)           Investments with average maturities
of 12 months or less from the date of acquisition in money market funds rated
A- (or the equivalent thereof) or better by S&P or A3 (or the equivalent
thereof) or better by Moody’s;


(l)            shares of investment companies that
are registered under the Investment Company Act of 1940 and substantially all
the investments of which are one or more of the types of securities described
in clauses (a) through (k) above; and


(m)          in the case of any Foreign Subsidiary,
investments of comparable tenure and credit quality to those described in the
foregoing clauses (a) through (l) or other high quality short
term investments, in each case, customarily utilized in countries in which such
Foreign Subsidiary operates for short term cash management purposes.


 


6

















 


Notwithstanding the
foregoing, Cash Equivalents shall include amounts denominated in currencies
other than those set forth in clauses (a) and (b) above, provided
that such amounts are converted into any currency listed in clauses (a)
and (b) as promptly as practicable and in any event within 10 Business
Days following the receipt of such amounts.


“Cash Management
Creditor” shall mean, with respect to the Cash Management Obligations of a
Loan Party, a counterparty that is the Administrative Agent or a Lender or an
Affiliate of the Administrative Agent or a Lender as of the Closing Date or at
the time such Cash Management Obligation is entered into.


“Cash Management
Obligations” shall mean, with respect to any Person, the obligations of
such Person under any agreement or arrangement to provide cash management
services, including treasury, depository, overdraft, credit or debit card,
electronic funds transfer and other cash management arrangements; provided
that any such obligations of any Loan Party owing to the Administrative Agent
or a Lender or an Affiliate of the Administrative Agent or any Lender shall
only constitute “Cash Management Obligations” hereunder at the option of the
Borrower.


“Change in Law”
shall mean (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 2.14, by any lending office of such Lender
or by such Lender’s or Issuing Bank’s holding company, if any) with any
request, guideline or directive of any Governmental Authority made or issued
after the date of this Agreement.


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


(i)            any time prior to the consummation
of a Qualified Public Offering, and for any reason whatsoever, (A) the Sponsor
shall not be entitled to appoint or elect a majority of the Board of Directors
of the Borrower or any of its direct or indirect parent entities including
Holdings or (B) the Permitted Investors do not own, directly or indirectly, of
record and beneficially an amount of Equity Interests of the Borrower or any of
its direct or indirect parent entities that is equal to or more than 35% of the
amount of Equity Interests of the Borrower or any of its direct or indirect
parent entities owned, directly or indirectly, by the Permitted Investors of
record and beneficially as of the Closing Date (determined by taking into
account any stock splits, stock dividends or other events subsequent to the
Closing Date that changed the amount of Equity Interests, but not the
percentage of Equity Interests, held by the Permitted Investors) and such
ownership by the Permitted Investors represents the largest single block of
Equity Interests of the Borrower or any of its direct or indirect parent
entities held by any person or related group for purposes of Section 13(d) of
the Securities Exchange Act of 1934, or


(ii)           at any time after the consummation of
a Qualified Public Offering, and for any reason whatsoever, (A) no “person” or “group”
(as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934 as in effect on the date hereof, but excluding any employee benefit
plan of such Person and its subsidiaries, and any Person or entity acting in
its capacity as trustee, agent or other fiduciary or administrator of any such
plan) and excluding the


 


7

















 


Permitted Investors, shall
become the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5
under such Act), directly or indirectly, of more than the greater of (x) 35% of
outstanding Equity Interests of the Borrower or any of its direct or indirect
parent entities having ordinary voting power and (y) the percentage of the then
outstanding Equity Interests of the Borrower or any of its direct or indirect
parent entities having ordinary voting power owned, directly or indirectly,
beneficially and of record by the Permitted Investors, (B) no “person” or “group”
(as defined in clause (A) above) other than the Sponsor shall be entitled to
appoint or elect a majority of the Board of Directors of the Borrower or any of
its direct or indirect parent entities including Holdings and (C) during each
period of 12 consecutive months, a majority of the board of directors of
Holdings shall consist of the Continuing Directors; or


(iii)          any change in control (or similar
event, however denominated) with respect to Holdings or any Restricted
Subsidiary shall occur under and as defined in the New Senior Notes
Documentation to the extent the New Senior Notes constitute Material
Indebtedness of Holdings or any Restricted Subsidiary; or


(iv)          at any time prior to the consummation
of a Qualified Public Offering, Holdings shall directly or indirectly own,
beneficially and of record, less than 100% of the issued and outstanding Equity
Interests of the Borrower.


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


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


“Closing Date”
shall mean November 13, 2007.


“Code” shall mean
the Internal Revenue Code of 1986, as amended from time to time, or any
legislation successor thereto.


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


“Collateral Agent”
shall mean Deutsche Bank AG New York Branch, in its capacity as collateral
agent for the Secured Parties, and shall include any successor collateral agent
appointed pursuant to Article VIII.


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


“Commitments”
shall mean the Revolving Credit Commitments, Term Loan Commitments, and
Swingline Commitment.


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


 


8

















 


“Confidential
Information Memorandum” shall mean the Confidential Information Memorandum
dated October 2007, relating to the syndication of the Credit Facilities.


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


“Consolidated
Depreciation and Amortization Expense” shall mean, with respect to any
Person, for any period, the total amount of depreciation and amortization
expense, including the amortization of deferred financing fees, debt issuance
costs, commissions, fees and expenses, bridge, commitment and other financing
fees, commission, discounts, yield and other fees and charges (including
interest expense) related to any Receivables Facility, and amortization of
unrecognized prior service costs and actuarial gains and losses related to
pensions and other post-employment benefits, of such Person and its Restricted
Subsidiaries for such period on a consolidated basis and otherwise determined
in accordance with GAAP.


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


(a)           consolidated interest expense of such
Person and its Restricted Subsidiaries for such period, to the extent such
expense was deducted (and not added back) in computing Consolidated Net Income
(including (i) amortization of original issue discount resulting from the
issuance of Indebtedness at less than par, (ii) all commissions, discounts and
other fees and charges owed with respect to letters of credit or bankers acceptances,
(iii) non-cash interest expense (but excluding any non-cash interest
expense attributable to the movement in the mark to market valuation of Hedging
Obligations or other derivative instruments pursuant to GAAP), (iv) the
interest component of Capitalized Lease Obligations, (v) net payments, if any,
pursuant to interest rate Hedging Obligations with respect to Indebtedness,
(vi) net losses on Hedging Obligations or other derivative instruments entered
into for the purpose of hedging interest rate risk and (vii) costs of surety
bonds in connection with financing activities and excluding (x) amortization of
deferred financing fees, debt issuance costs, commissions, fees and expenses,
(y) any expensing of bridge, commitment and other financing fees and (z)
commission, discounts, yield and other fees and charges (including interest
expense) related to any Receivables Facility; plus


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


(c)           interest income of such Person and
its Restricted Subsidiaries for such period (other than interest income from
Seed Capital Investments).


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


 


9

















 


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


(a)           any pro
forma after-tax effect (using a reasonable estimate based on applicable tax
rates) of extraordinary, non-recurring or unusual gains or losses (less all
fees and expenses relating thereto) or expenses (including relating to the
Transactions), or any severance costs, integration costs, relocation costs and
costs associated with curtailments or modifications to pension and
post-retirement employee benefit plans shall be excluded;


(b)           the Net Income for such period shall
not include the cumulative effect of a change in accounting principles during
such period;


(c)           any pro
forma after-tax effect (using a reasonable estimate based on applicable tax
rates) of income (loss) from disposed or discontinued operations and any net
after-tax gains or losses on disposal of disposed, abandoned or discontinued
operations shall be excluded;


(d)           any pro
forma after-tax effect (using a reasonable estimate based on applicable tax
rates) of gains or losses (less all accrued fees and expenses relating thereto)
attributable to asset dispositions other than in the ordinary course of
business, as determined in good faith by the Borrower, shall be excluded;


(e)           the Net Income for such period of any
Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is
accounted for by the equity method of accounting, shall be excluded; provided
that, to the extent not already included, Consolidated Net Income of such
Person shall be (A) increased by the amount of dividends or distributions or
other payments that are actually paid in cash (or to the extent converted into
cash) to such Person or a subsidiary thereof that is the Borrower or a
Restricted Subsidiary in respect of such period (subject in the case of
dividends paid or distributions made to a Restricted Subsidiary (other than a
Guarantor) to the limitations contained in clause  (f) below) and
(B) decreased by the amount of any equity of the Borrower in a net loss of any
such Person for such period to the extent the Borrower has funded such net loss
in cash with respect to such period;


(f)            solely for the purpose of
determining the amount available under clause (a) of the definition
of Restricted Payment Applicable Amount, the Net Income for such period of any
Restricted Subsidiary (other than any Guarantor) shall be excluded if the
declaration or payment of dividends or similar distributions by that Restricted
Subsidiary of its Net Income is not at the date of determination wholly
permitted without any prior governmental approval (which has not been obtained)
or, directly or indirectly, by the operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule, or governmental
regulation applicable to that Restricted Subsidiary or its stockholders, unless
such restriction with respect to the payment of dividends or similar
distributions has been legally waived, provided that Consolidated Net
Income of the Borrower will be subject to the exclusions in clauses  (c)
and (d) above, increased by the amount of dividends or other
distributions or other


 


10

















 


payments actually paid in
cash (or to the extent converted into cash) to the Borrower or a Restricted
Subsidiary thereof in respect of such period, to the extent not already
included therein;


(g)           effects of purchase accounting
adjustments (including the effects of such adjustments pushed down to such
Person and such subsidiaries) in component amounts required or permitted by
GAAP, resulting from the application of purchase accounting in relation to the
Transactions or any consummated acquisition or the amortization or write-up,
write-down or write-off of any amounts thereof, net of taxes, shall be
excluded;


(h)           any pro
forma after-tax effect (using a reasonable estimate based on applicable tax
rates) of income (loss) from the early extinguishment of Indebtedness or
Hedging Obligations or other derivative instruments shall be excluded;


(i)            any pro
forma after-tax effect (using a reasonable estimate based on applicable tax
rates) of any non-cash impairment charge or asset write-off, write-up or
write-down, in each case pursuant to GAAP, and the amortization of intangibles
arising (including goodwill and organizational costs) pursuant to GAAP
(excluding any such non-cash adjustment to the extent that it represents an
accrual of or reserve for cash expenditures in any future period except to the
extent such adjustment is subsequently reversed), shall be excluded;


(j)            any pro
forma after-tax effect (using a reasonable estimate based on applicable tax
rates) of non-cash compensation expense recorded from grants of stock
appreciation or similar rights, stock options, restricted stock or other rights
shall be excluded;


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


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


(m)          accruals and reserves that are
established within twelve months after the Closing Date that are so required to
be established as a result of the Transactions in accordance with GAAP shall be
excluded; and


(n)           structuring fees and upfront
distribution costs paid in the ordinary course of business for closed-end
funds, mutual funds, exchange traded funds and other structured products, such
as collateralized loan and debt obligations, and payments made to terminate
trailer


 


11

















 


fees to underwriters of
closed-end funds, mutual funds, exchange traded funds and other structured
products, shall be excluded.


Notwithstanding the
foregoing, for the purpose of Section 6.03 only, there shall be excluded
from Consolidated Net Income any income arising from any sale or other
disposition of Restricted Investments made by the Borrower and its Restricted
Subsidiaries, any repurchases and redemptions of Restricted Investments made by
the Borrower and its Restricted Subsidiaries, any repayments of loans and
advances which constitute Restricted Investments made by the Borrower and any
Restricted Subsidiary, any sale of the stock of an Unrestricted Subsidiary or
any distribution or dividend from an Unrestricted Subsidiary, in each case only
to the extent such amounts increase the amount of Restricted Payments permitted
under clause  (d) of the definition of Restricted Payment
Applicable Amount.


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


“Contingent
Obligations” shall mean, with respect to any Person, any obligation of such
Person guaranteeing or having the economic effect of guaranteeing any leases,
dividends or other obligations that, in each case, do not constitute
Indebtedness (“primary obligations”) of any other Person (the “primary obligor”)
in any manner, whether directly or indirectly, including any obligation of such
Person, whether or not contingent,


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


(b)           to advance or supply funds


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


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


 


12

















 


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


(d)           as an account party in respect of any
letter of credit, letter of guaranty or bankers’ acceptance.


“Continuing Directors”
shall mean the directors of the Borrower (or if the Borrower is a Wholly-Owned
Subsidiary of Holdings, Holdings) on the Closing Date, as elected or appointed
after giving effect to the Merger and the other transactions contemplated
hereby, and each other director, if, in each case, such other director’s
nomination for election to the board of directors of the Borrower (or if the
Borrower is a Wholly-Owned Subsidiary of Holdings, Holdings) is approved by a
majority of the then Continuing Directors, such other director is appointed,
approved or recommended by a majority of the then Continuing Directors or such
other director receives the vote of the Permitted Investors or is designated or
appointed by the Permitted Investors in his or her election by the stockholders
of the Borrower (or if the Borrower is a Wholly-Owned Subsidiary of Holdings,
Holdings).


“Control” shall
mean 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
ownership of voting securities, or by contract, and the terms “Controlling” and
“Controlled” shall have meanings correlative thereto.


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


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


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


“Cure Amount”
shall have the meaning assigned to such term in Section 7.02.


“Cure Right”  shall have the meaning assigned to such term
in Section 7.02.


“Current Assets”
shall mean, at any time, (a) the consolidated current assets of the Borrower
and its Restricted Subsidiaries that would, in accordance with GAAP, be
classified on a consolidated balance sheet of the Borrower and its Restricted
Subsidiaries as current assets at such date of determination, but excluding
cash, Cash Equivalents, amounts related to current or deferred Taxes based on
income or profits (but excluding assets held for sale, loans (permitted) to
third parties, pension assets, deferred bank fees, derivative financial
instruments and intercompany assets) and (b) in the event that a Receivables Facility
is accounted for off-balance sheet, (x) gross accounts receivable comprising a
part of the assets subject to such Receivables Facility less (y)
collection against the amount sold pursuant to clause (x).


“Current Liabilities”
shall mean, at any time, the consolidated current liabilities of the Borrower
and its Restricted Subsidiaries that would, in accordance with GAAP, be
classified on a consolidated balance sheet of the Borrower and its Restricted
Subsidiaries as current


 


13

















 


liabilities at such date
of determination, but excluding, without duplication, (a) the current portion
of any long-term Indebtedness, (b) outstanding Revolving Loans, L/C Exposure
and Swingline Loans, (c) accruals of Consolidated Interest Expense (excluding
consolidated interest expense that is due and unpaid), (d) accruals for current
or deferred Taxes based on income or profits, (e) accruals of any costs or
expenses related to restructuring reserves to the extent permitted to be
included in the calculation of EBITDA pursuant to clause  (a)(v)
thereof, (f) the current portion of pension liabilities and (g) intercompany
Indebtedness.


“DBNY” shall mean
Deutsche Bank AG New York Branch.


“Default” shall
mean any event or condition which constitutes an Event of Default or which upon
notice, lapse of grace period or both would, unless cured or waived, constitute
an Event of Default.


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


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


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


“Disposition”
shall mean:


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


(b)           the issuance or sale of Equity
Interests of the Borrower or any Restricted Subsidiary, whether in a single
transaction or a series of related transactions.


 


14

















 


“Disqualified
Institutions” shall mean (a) those institutions identified in writing to
the Administrative Agent from time to time, (b) any Persons who are competitors
of the Borrower and its subsidiaries as identified to the Administrative Agent
in writing from time to time or (c) Excluded Parties.


“Disqualified Stock”
shall mean, with respect to any Person, any Capital Stock of such Person which,
by its terms, or by the terms of any security into which it is convertible or
for which it is putable or exchangeable (unless at the sole option of the
issuer), or upon the happening of any event, matures or is mandatorily
redeemable (other than solely for Capital Stock which is not Disqualified
Stock) pursuant to a sinking fund obligation or otherwise, or is redeemable at
the option of the holder thereof (in each case other than solely as a result of
a change of control or asset sale so long as any rights of the holders thereof
upon the occurrence of a change of control or asset sale shall be subject to
the occurrence of the Termination Date or such repurchase or redemption is
otherwise permitted by this Agreement (including as a result of a waiver or
amendment hereunder)), in whole or in part, in each case prior to the date 91
days after the Term Loan Maturity Date; provided, however, that
if such Capital Stock is issued to any employees of the Borrower or any of its
Subsidiaries for compensatory purposes or to plan for the benefit of employees
of the Borrower or its subsidiaries or by any such plan to such employees, such
Capital Stock shall not constitute Disqualified Stock solely because it may be
required to be repurchased in order pursuant to the terms of any such
arrangement.


“Dollars” or “$”
shall mean lawful money of the United States of America.


“Domestic Subsidiaries”
shall mean, with respect to any Person, any subsidiary of such Person other
than a Foreign Subsidiary.


“EBITDA” shall
mean, for any period, the Consolidated Net Income of the Borrower for such
period


(a)           increased (without duplication) by
(to the extent the same was deducted (and not added back) in calculating such
Consolidated Net Income):


(i)            provision for taxes based on income or profits or capital
(or any alternative tax in lieu thereof),
including, without limitation, foreign, state, franchise and similar taxes and
foreign withholding taxes of such Person and such subsidiaries paid or accrued
during such period, including payments made pursuant to any tax sharing
agreements or arrangements among the Borrower, its Restricted Subsidiaries and
any direct or indirect parent company of the Borrower (so long as such tax
sharing payments are attributable to the operations of the Borrower and its
Restricted Subsidiaries); plus


(ii)           Fixed Charges of such Person for such period; plus


(iii)          Consolidated Depreciation and Amortization Expense of such
Person for such period; plus


(iv)          any fees, costs, commissions, expenses, accruals or other
charges (including stock and other equity-based compensation expenses) (other
than Consolidated Depreciation and Amortization Expense but including the
effects of purchase accounting


 


15

















 


adjustments) related to the Transactions, any Equity Offering,
Permitted Investment, acquisition, disposition, dividend or similar Restricted
Payment, recapitalization or the incurrence or repayment, amendment or
modification of Indebtedness permitted to be incurred under this Agreement
(including a refinancing thereof) (whether or not successful), including (w)
any expensing of bridge, commitment or other financing fees, (x) such fees,
costs, commissions, expenses or other charges related to the offering of the
New Senior Notes and the Credit Facilities, (y) any such fees, costs (including
call premium), commissions, expenses or other charges related to any amendment
or other modification of the Existing Notes, the New Senior Notes and the
Credit Facilities and (z) commissions, discounts, yield and other fees and
charges (including any interest expense) related to any Receivables Facility; plus


(v)           the amount of any restructuring charge or reserve,
including restructuring costs and integration costs incurred in connection with
acquisitions after the Closing Date, costs related to the closure and/or
consolidation of facilities, retention charges, contract termination costs,
retention, recruiting, relocation, severance and signing bonuses and expenses,
transaction fees and expenses, future lease commitments, systems establishment
costs, conversion costs and excess pension charges, consulting fees and any
one-time expense relating to enhanced accounting function, or costs associated
with becoming a standalone entity or public company incurred in connection with
any of the foregoing; provided that the aggregate amount of expenses
added pursuant to this clause (v) shall not exceed $30,000,000 in any period of
four consecutive fiscal quarters; plus


(vi)          other than for the purposes of determining the amount
available for Restricted Payments under paragraph  (a)(y)(II) of
the definition of Restricted Payment Applicable Amount, the amount of
management, monitoring, consulting, transaction and advisory fees and related
expenses paid in such period pursuant to the Management Agreement; plus


(vii)         costs or expenses by such Person pursuant to any management
equity plan or stock option plan or any other management or employee benefit
plan or agreement or any stock subscription or shareholder agreement, to the
extent that such cost or expenses are funded with cash proceeds contributed to
the capital of the Borrower or net cash proceeds of an issuance of Equity
Interest of the Borrower (other than Disqualified Stock) solely to the extent
that such net cash proceeds are excluded from the calculation set forth in the
definition of Restricted Payment Applicable Amount; plus


(viii)        without duplication of amounts otherwise
included in the calculation of EBITDA, the amount of net cost savings and
acquisition synergies projected by the Borrower in good faith and certified by
a Financial Officer in an Officer’s Certificate delivered to the Administrative
Agent to be realized during such period (calculated on a pro forma basis as though such cost savings had been realized on the
first day of such period) as a result of specified actions taken or initiated in
connection with the Transactions or any acquisition or disposition (including
termination or discontinuance of activities constituting such business) by the
Borrower or any Restricted Subsidiary, net of the amount of actual benefits
realized during such period that are otherwise included in the calculation of
EBITDA from such actions; provided that (A) such cost savings are


 


16

















 


reasonably identifiable and factually supportable and (B) such actions
are taken within 12 months after the Closing Date or the date of such
acquisition or disposition; plus


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


(x)            expenses to the extent covered by contractual
indemnification or refunding provisions in favor of the Borrower or a
Restricted Subsidiary and actually paid or refunded, or, so long as the
Borrower has made a determination that there exists reasonable evidence that
such amount will in fact be paid or refunded by the indemnifying party or other
obligor and only to the extent that such amount is (A) not denied by the
applicable indemnifying party or obligor in writing within 90 days and (B) in
fact reimbursed within 180 days of the date of such evidence (with a deduction
for any amount so added back to the extent not so reimbursed within such 180
days); plus


(xi)           an amount equal to losses on Seed Capital Investments of
up to $15,000,000 in any four-quarter period; plus


(xii)          the amount of loss on sale of receivables to a Receivables
Subsidiary in connection with a Receivables Facility; plus


(xiii)         extraordinary losses or unusual or
non-recurring charges or expenses (including fines and penalties); plus


(xiv)        in the case of fiscal years 2007 and 2008, the pro forma adjustments previously identified
and agreed to by the Arrangers in an aggregate amount not to exceed
$10,000,000; and


(b)           decreased by (without duplication)
(i) non-cash gains increasing Consolidated Net Income of such Person for such
period, excluding any non-cash gains to the extent they represent the reversal
of an accrual or reserve for a potential cash item that reduced EBITDA in any
prior period, (ii) the minority interest income consisting of subsidiary losses
attributable to minority equity interests of third parties in any non-Wholly
Owned Subsidiary to the extent such minority interest income is included in
Consolidated Net Income and (iii) an amount equal to gains on Seed Capital
Investments in excess of $15,000,000 in any four-quarter period; and


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


(i)            any net gain or loss resulting in such period from
Hedging Obligations and the application of Statement of Financial Accounting
Standards No. 133 and International


 


17

















 


Accounting Standards No. 39 and their respective related pronouncements
and interpretations, plus or minus, as applicable; and


(ii)           any net gain or loss included in calculating Consolidated
Net Income resulting in such period from currency translation gains or losses
related to currency remeasurements of indebtedness (including any net loss or
gain resulting from hedge agreements for currency exchange risk).


Notwithstanding the
foregoing, the provision for taxes based on the income or profits of, and the
depreciation and amortization and non-cash charges of, a Restricted Subsidiary
(other than a Guarantor) shall be added to Consolidated Net Income to compute
EBITDA only to the extent (and in the same proportion, including by reason of
minority interests) that the net income or loss of such Restricted Subsidiary
was included in calculating Consolidated Net Income and only if a corresponding
amount would be permitted at the date of determination to be dividended to the
Borrower by such Restricted Subsidiary without any prior governmental approval
(which has not been obtained) or would not be restricted from being so
dividended, directly or indirectly, by the operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule,
or governmental regulation applicable to that Restricted Subsidiary or its
stockholders, unless such restriction with respect to the payment of dividends
or in similar distributions has been legally waived.


“ECF Percentage”
shall mean, with respect to any fiscal year, 50%; provided, however,
if the Senior Secured Net Leverage Ratio as of the end of a fiscal year is (a)
less than 4.25 to 1.00 but greater than 3.50 to 1.00, then the ECF Percentage
with respect to such fiscal year shall mean 25% and (b) less than or equal to
3.50 to 1.00, then the ECF Percentage with respect to such fiscal year shall
mean 0%.


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


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


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


“Equity Cure Proceeds”
shall mean the proceeds received directly or indirectly by the Borrower in
respect of any Cure Amount.


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


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


 


18

















 


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


(a)           public offerings with respect to any
such Person’s common stock registered on Form S-4 or S-8;


(b)           issuances to the Borrower or any
subsidiary of the Borrower; and


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


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


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


“ERISA Event”
shall mean (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder, but excluding any event for which the 30-day
notice period is waived with respect to a Pension Plan, (b) any “accumulated
funding deficiency” (as defined in Section 412 of the Code or Section 302 of
ERISA), whether or not waived, or the failure to satisfy any statutory funding
requirement that results in a Lien, with respect to a Pension Plan, (c) the
incurrence by any Loan Party or an ERISA Affiliate of any liability under Title
IV of ERISA with respect to the termination of any Pension Plan or the
withdrawal or partial withdrawal of any Loan Party or an ERISA Affiliate from
any Pension Plan or Multiemployer Plan, (d) the filing of a notice of intent to
terminate, the treatment of a Pension Plan amendment as a termination under
Sections 4041 or 4041A of ERISA, or the receipt by any Loan Party or any ERISA
Affiliate from the PBGC or a plan administrator of any notice of intent to
terminate any Pension Plan or Multiemployer Plan or to appoint a trustee to
administer any Pension Plan, (e) the adoption of any amendment to a Pension
Plan that would require the provision of security pursuant to the Code, ERISA
or other applicable law, (f) the receipt by any Loan Party or any ERISA
Affiliate of any notice concerning statutory liability arising from the
withdrawal or partial withdrawal of any Loan Party or any ERISA Affiliate from
a Multiemployer Plan 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, (g) the occurrence of a “prohibited transaction” (within the meaning
of Section 4975 of the Code) with respect to which Holdings or any Restricted
is a “disqualified person” (within the meaning of Section 4975 of the
Code) or with respect to which Holdings or any Restricted Subsidiary could
reasonably be expected to have any liability, (h) any event or condition which
constitutes grounds under Section 4042 of ERISA for the termination of any
Pension Plan or Multiemployer Plan or the appointment of a trustee to
administer any Pension Plan or, (i) any other extraordinary event or condition
with respect to a Pension Plan or Multiemployer Plan which could reasonably be
expected to result in a Lien or any acceleration of any statutory requirement
to fund all or a substantial portion of the unfunded accrued benefit
liabilities of such plan.


 


19

















 


“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”
shall have the meaning assigned to such term in Article VII.


“Excess Cash Flow”
shall mean, for any fiscal year of the Borrower, an amount, equal to:


(a)           the sum, without duplication, of
EBITDA,


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


(ii)           foreign currency translation gains received in cash
related to currency remeasurements of indebtedness (including any net cash gain
resulting from hedge agreements for currency exchange risk), to the extent not
otherwise included in calculating EBITDA;


(iii)          net cash gains resulting in such period from Hedging
Obligations and the application of Statement of Financial Accounting Standards
No. 133 and International Accounting Standards No. 39 and their respective
pronouncements and interpretations;


(iv)          extraordinary, unusual or nonrecurring cash gains (other
than gains on Dispositions), to the extent not otherwise included in
calculating EBITDA;


(v)           to the extent not otherwise included in calculating
EBITDA, cash gains from any sale or disposition outside the ordinary course of
business; and


(vi)          the aggregate amount of any returns received in cash in
respect of Seed Capital Investments made after the Closing Date to the extent
not otherwise included in calculating EBITDA;


minus,


(b)           the sum, without duplication, of


(i)            the amount of any Taxes, including Taxes based on income,
profits or capital, (or alternative tax in lieu
thereof), foreign, state, franchise and similar Taxes, foreign withholding
Taxes and foreign unreimbursed value added Taxes (to the extent added in
calculating EBITDA), and including penalties and interest on any of the
foregoing, in each case, paid in cash by the Borrower and its Restricted
Subsidiaries (to the extent not otherwise deducted in calculating EBITDA),
including payments made pursuant to any tax sharing agreements or arrangements
among the Borrower, its Restricted Subsidiaries and any direct or indirect parent
company of the Borrower (so


 


20

















 


long as such tax sharing payments are attributable to the operations of
the Borrower and its Restricted Subsidiaries);


(ii)           Consolidated Interest Expense, to the extent payable in
cash and not otherwise deducted in calculating EBITDA;


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


(iv)          without duplication of amounts deducted pursuant to clause
(xvii) below in a prior fiscal year, Capital Expenditures (other than
for Seed Capital Investments) of the Borrower and its Restricted Subsidiaries
made in cash, to the extent financed with Internally Generated Cash;


(v)           repayments of long-term Indebtedness (including (A) the
principal component of Capitalized Lease Obligations, (B) the amount of
repayment of Loans pursuant to Section 2.11 (but excluding all other
prepayments of the Loans), (C) the amount of repayment of the Existing Notes)
and (D) current maturities of long-term Indebtedness, made by the Borrower and
its Restricted Subsidiaries, but only to the extent that such repayments (x) by
their terms cannot be reborrowed or redrawn and (y) are not financed with the
proceeds of long-term Indebtedness (other than revolving Indebtedness), provided
that for purposes of clause  (a) of the definition of Restricted
Payment Applicable Amount only, the amount deducted pursuant to this clause (v)
in respect of repayments of the New Senior Notes shall equal the amount of such
repayments multiplied by one minus the ECF Percentage for the relevant fiscal
year;


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


(vii)         without duplication of amounts deducted pursuant to clause
(xvii) below in a prior fiscal year, the amount of Investments made by the
Borrower and its Restricted Subsidiaries pursuant to Section 6.03 (other
than Permitted Investments in (x) Cash Equivalents and Government Securities,
(y) the Borrower or any of its Restricted Subsidiaries and (z) Seed Capital
Investments), in cash, to the extent such Investments were financed with
Internally Generated Cash;


(viii)        extraordinary, unusual or nonrecurring
cash charges, to the extent not otherwise deducted in calculating EBITDA;


(ix)           cash fees, costs, commissions, charges and expenses incurred
in connection with the Transactions, any Investment permitted under Section
6.03, any disposition not prohibited under Section 6.05, any
recapitalization, any issuance of Equity Interests, the issuance of any
Indebtedness or any exchange, refinancing or other early


 


21

















 


extinguishment of Indebtedness permitted by this Agreement (in each
case, whether or not consummated);


(x)            cash charges, expenses or losses added to EBITDA pursuant
to clauses (a)(v) and (xiv) thereof and clause
(n) of the definition of Consolidated Net Income;


(xi)           the amount of management, monitoring, consulting,
transactional and advisory fees and related expenses paid pursuant to the
Management Agreement permitted by Section 6.06, to the extent not
otherwise deducted in calculating EBITDA;


(xii)          the amount of Restricted Payments made by the Borrower to
the extent permitted by clauses  (iv), (xii) (but, with
respect to Section 6.03(b)(xii)(H), only to the extent such amounts
would have been permitted to be deducted under clause  (b) of this
definition if the Borrower or any of its Restricted Subsidiaries had instead
made such Investment) and (xvi) of Section 6.03(b) to the extent
that such Restricted Payments were financed with Internally Generated Cash
(including proceeds of Revolving Loans);


(xiii)         cash expenditures in respect of Hedging
Obligations (including net cash losses resulting in such period from Hedging
Obligations and the application of Statement of Financial Accounting Standards No.
133 and International Accounting Standards No. 39 and their respective
pronouncements and interpretations), to the extent not otherwise deducted in
calculating EBITDA;


(xiv)        to the extent added to Consolidated Net Income, cash losses
from any sale or disposition outside the ordinary course of business;


(xv)         cash payments by the Borrower and its Restricted
Subsidiaries in respect of long-term liabilities (other than Indebtedness) of
the Borrower and its Restricted Subsidiaries;


(xvi)        the aggregate amount of expenditures actually made by the
Borrower and its Restricted Subsidiaries in cash (including expenditures for
the payment of financing fees) to the extent that such expenditures are not
expensed;


(xvii)       without duplication of amounts deducted
from Excess Cash Flow in a prior fiscal year, the aggregate consideration
required to be paid in cash by the Borrower and its Restricted Subsidiaries
pursuant to binding contracts or agreements (the “Contract Consideration”)
entered into prior to or during such fiscal year relating to Investments
permitted under Section 6.03 (other than Investments in (x) Cash
Equivalents and Government Securities and (y) the Borrower or any of its
Restricted Subsidiaries) or Capital Expenditures to be consummated or made
during the period of four consecutive fiscal quarters of the Borrower following
the end of such fiscal year, provided that to the extent the aggregate
amount of Internally Generated Cash actually utilized to finance such Capital
Expenditures or Investments during such period of four consecutive fiscal
quarters is less than the Contract Consideration, the amount of such shortfall
shall be added to the calculation of Excess Cash Flow at the end of such period
of four consecutive fiscal quarters; and


 


22

















 


(xviii)      the aggregate amount of Seed Capital
Investments made by the Borrower and its Restricted Subsidiaries to the extent
that such amounts (x) are not otherwise deducted in calculating EBITDA and (y)
do not exceed in any fiscal year the sum of (I) $50,000,000 plus (II)
any gains received in respect of Seed Capital Investments that have been
included in calculating EBITDA plus (III) any amounts representing
reinvested Seed Capital Investments during such fiscal year and to the extent
not previously deducted pursuant to this clause (xviii), any amounts reinvested
within six months of the return of such Seed Capital Investments.


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


“Excluded
Contributions” shall mean net cash proceeds, marketable securities or
Qualified Proceeds received by or contributed to the Borrower (other than
Equity Cure Proceeds) from


(a)           contributions to its common equity
capital, and


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


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


“Excluded Parties”
shall mean affiliates of the Arrangers that are (x) engaged as principals
primarily in private equity, mezzanine financing or venture capital or (y) are
engaged directly or indirectly in a sale of the Company and its subsidiaries as
sell-side representative.


“Excluded Subsidiary”
shall mean (a) any subsidiary that is not a Wholly-Owned Subsidiary (other than
a Subsidiary the minority equity interests in which are held by officers and
employees thereof), (b) any Immaterial Subsidiary, (c) any subsidiary that is
prohibited by applicable law or contractual obligations from guaranteeing the
Obligations, (d) any Restricted Subsidiary acquired pursuant to an acquisition
permitted by Section 6.03 financed with secured Indebtedness permitted
to be incurred pursuant to Section 6.01(b)(xi) (but only to the extent
such Indebtedness is otherwise permitted to be secured under clause  (ii)
of the definition of Permitted Liens) and Section 6.01(b)(xiii) and each
Restricted Subsidiary thereof that guarantees such Indebtedness; provided
that each such Restricted Subsidiary shall cease to be an Excluded Subsidiary
under this clause (d) if such secured Indebtedness is repaid or becomes
unsecured or if such Restricted Subsidiary ceases to guarantee such secured
Indebtedness, as applicable, (e) any Unrestricted Subsidiary, (f) any
direct or indirect Domestic Subsidiary of a direct or indirect Foreign
Subsidiary, (g) any subsidiary which is a Broker-Dealer Subsidiary, (h) any
captive insurance subsidiary, (i) any not-for-profit subsidiary, (j) any other
subsidiary with respect to which in the reasonable judgment of the
Administrative Agent and the Borrower, the cost or other consequences of
providing a guarantee of the Obligations shall be excessive in view


 


23

















 


of the benefits to be
obtained by the Lenders therefrom (it being agreed that the cost and other
consequences of a Foreign Subsidiary or a subsidiary which is subject to
regulatory capital restrictions providing a guarantee are excessive in view of
the benefits), (k) any subsidiary that is a special purpose entity and (l) any
Receivables Subsidiary.


“Excluded Taxes”
shall mean, 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 Taxes imposed on (or measured
by) its income and franchise (and similar) Taxes imposed on it in lieu of income Taxes pursuant to the laws
of the United States of America, or by the jurisdiction in which such recipient
is organized or in which the principal office or applicable lending office of
such recipient is located (or any political subdivision thereof) (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 and (c)
in the case of a recipient (other than an assignee pursuant to a request by the
Borrower under Section 2.21(a)), any withholding Tax that (i) is imposed
on amounts payable to such recipient at the time such recipient becomes a party
to this Agreement (or designates a new lending office) or (ii) is attributable
to such recipient’s failure to comply with Section 2.20(e) or (f),
as applicable, except in the case of clause (i) to the extent that such
recipient (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 such withholding tax pursuant to Section 2.20(a).


“Existing Debt”
shall mean Indebtedness outstanding under that certain Credit Agreement dated
as of September 30, 2005, as amended, by and among the Company, as borrower
thereunder, the lenders from time to time party thereto, Bank of America, N.A.,
as administrative agent, and the other agents party thereto.


“Existing Intercompany
Debt” shall mean the intercompany Indebtedness of the Company and its
Subsidiaries issued in favor of the Company or a Restricted Subsidiary of the
Company on the Closing Date and identified as such on Schedule 6.01.


“Existing Notes”
shall mean, collectively, the Existing Notes due 2010 and the Existing Notes
due 2015.


“Existing Notes
Documentation” shall mean the Existing Notes and Existing Notes Indentures
governing the Existing Notes.


“Existing Notes due
2010” shall mean the Company’s $250,000,000 5% senior notes due 2010.


“Existing Notes due
2015” shall mean the Company’s $300,000,000 5.50% senior notes due 2015.


“Existing Notes
Indentures” shall mean the Indenture, dated as of September 12, 2005,
between the Company and The Bank of New York Trust Company, N.A., as Trustee,
as supplemented by that certain First Supplemental Indenture, dated as of
September 12, 2005, between the Company and The Bank of New York Trust Company,
N.A., as Trustee.


 


24

















 


“Existing Notes
Termination Date” shall have the meaning assigned to such term in Section
5.09.


“Federal Funds
Effective Rate” shall mean, for any day, the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published 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 of the quotations
for the day for such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by it.


“Fee Letter” shall
mean the Second Amended and Restated Fee Letter, dated as of November 13, 2007,
among Holdings, the Borrower and the Arrangers.


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


“Financial Officer”
of any Person shall mean the chief executive officer, the president, chief
financial officer, principal accounting officer, treasurer, assistant treasurer
or controller of such Person.


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


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


(b)           all cash dividends or other
distributions paid to any Person other than such Person or any such Subsidiary
(excluding items eliminated in consolidation) on any series of Preferred Stock
of Holdings or a Restricted Subsidiary during such period; plus


(c)           all cash dividends or other
distributions paid to any Person other than such Person or any such Subsidiary
(excluding items eliminated in consolidation) on any series of Disqualified
Stock of Holdings or a Restricted Subsidiary during such period.


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


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


 


25
















 


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


“GAAP” shall mean
United States generally accepted accounting principles, as amended or modified
from time to time.


“Government Securities”
shall mean securities that are:


(a)           direct obligations of the United
States of America for the timely payment of which its full faith and credit is
pledged; or


(b)           obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act), as custodian with respect to any such
Government Securities or a specific payment of principal of or interest on any
such Government Securities held by such custodian for the account of the holder
of such depository receipt; provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Securities or the specific payment of
principal of or interest on the Government Securities evidenced by such
depository receipt.


“Governmental
Authority” shall mean the government of the United States of America or any
other nation, 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.


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


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


“Guaranteed Creditors”
shall mean and include each of the Administrative Agent, the Collateral Agent,
the Issuing Banks, the Lenders, the Hedge Creditors and the Cash Management
Creditors.


“Guaranteed Net
Leverage Ratio” shall mean on, as of any date, the ratio of (i) (A)
Consolidated Total Indebtedness of the Borrower on such date which is
guaranteed by any Restricted Subsidiary of the Borrower plus (B)
Consolidated Total Indebtedness of any Restricted Subsidiary of the Borrower on
such date (in each case, other than intercompany


26

















 


Indebtedness), minus
(C) the amount of cash and Cash Equivalents in excess of any Restricted
Cash that would be stated on the balance sheet of the Borrower and its
Restricted Subsidiaries and held by the Borrower and its Restricted Subsidiaries
as of such date of determination, as determined in accordance with GAAP to (ii)
EBITDA of the Borrower and its Restricted Subsidiaries for the most recently
ended four fiscal quarters ending immediately prior to such date for which
Section 5.04 Financials have been delivered to the Administrative Agent.


“Guaranteed
Obligations” shall mean (i) the unpaid principal of and interest on the
Loans and all other obligations and liabilities of the Borrower to the
Administrative Agent or any Lender, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, this Agreement, any other Loan
Document and the Letters of Credit and whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
(including all fees, charges and disbursements of counsel to the Administrative
Agent or any Lender that are required to be paid pursuant hereto or any other
Loan Document and including interest accruing after the maturity of the Loans
and L/C Disbursements and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to a Loan Party, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) or otherwise and (ii) the
full and prompt payment when due (whether at the stated maturity, by
acceleration or otherwise) of all obligations (including obligations which, but
for the automatic stay under Section 362(a) of the Bankruptcy Code, would
become due), liabilities and indebtedness (including any interest accruing
after the commencement of any bankruptcy, insolvency, receivership or similar
proceeding at the rate provided for herein, whether or not such interest is an
allowed claim in any such proceeding) of any Loan Party owing pursuant to any
Hedging Obligation or Cash Management Obligation, as the case may be, entered
into by such Loan Party with any Hedge Creditor or Cash Management Creditor, as
the case may be.


“Guarantors” shall
mean Holdings and the Subsidiary Guarantors.


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


“Hedge Creditor”
shall mean, with respect to the Hedging Obligations of a Loan Party
specifically designated hereunder as “Secured Obligations”, a counterparty that
is the Administrative Agent or a Lender or an Affiliate of the Administrative
Agent or a Lender as of the Closing Date or at the time such Hedging Obligation
is entered into (including any Person who is a Lender (and any Affiliate
thereof) as of the Closing Date but subsequently, whether before or after
entering into any Hedging Obligations, ceases to be a Lender).


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


 


27

















 


“Holdings” shall
have the meaning assigned to such term in the recitals.


“Holdings Guaranty”
shall mean the guaranty of Holdings pursuant to Article X.


“Immaterial Subsidiary”
shall mean all Restricted Subsidiaries of the Borrower for which (a) (i) the
assets of each such Restricted Subsidiary constitute less than 2.5% of the
total assets of the Borrower and its Restricted Subsidiaries on a consolidated
basis and (ii) the EBITDA of each such Restricted Subsidiary accounts for less
than 2.5% of the EBITDA of the Borrower and its Restricted Subsidiaries on a
consolidated basis and (b) (i) the assets of all relevant Restricted
Subsidiaries constitute 5.0% or less than the total assets of the Borrower and
its Restricted Subsidiaries on a consolidated basis, and (ii) the EBITDA of all
relevant Restricted Subsidiaries accounts for less than 5.0% of the EBITDA of
the Borrower and its Restricted Subsidiaries on a consolidated basis, and in
each case such Restricted Subsidiaries have been designated as an Immaterial
Subsidiary by the Borrower in a written notice delivered to the Administrative
Agent (or on the Closing Date listed on Schedule 1.01(b)) other than any
such Restricted Subsidiary as to which the Borrower has revoked such
designation by written notice to the Administrative Agent.


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


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


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


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


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


(i)            in respect of borrowed money;


(ii)           evidenced by bonds, notes, debentures or similar
instruments;


(iii)          evidenced by letters of credit or bankers’ acceptances (or,
without duplication, reimbursement agreements in respect thereof);


(iv)          Capitalized Lease Obligations;


(v)           representing the balance deferred and unpaid of the
purchase price of any property (other than Capitalized Lease Obligations),
except (A) any such balance that constitutes a trade payable or similar
obligation to a trade creditor, in each case accrued in the ordinary course of
business, (B) liabilities and expenses accrued in the ordinary course of
business and (C) earn-outs and other contingent payments in respect of acquisitions
except to the extent that the liability on account of any such earn-outs or 


 


28

















 


contingent payment becomes fixed and is not promptly paid after such
payment becomes due and payable; or


(vi)          representing any Hedging Obligations with respect to
interest rates;


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


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


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


provided,  however,  that notwithstanding the foregoing, Indebtedness shall be
deemed not to include (x) Contingent Obligations incurred in the ordinary
course of business and not in respect of borrowed money, (y) items that would
appear as a liability on a balance sheet prepared in accordance with GAAP as a
result of the application of EITF 97-10, “The Effect of Lessee Involvement in
Asset Construction,” or (z) obligations with respect to Receivables
Facilities.  The amount of Indebtedness
of any Person under clause  (c) above shall be deemed to equal the
lesser of (x) the aggregate unpaid amount of such Indebtedness secured by such
Lien and (y) the fair market value of the property encumbered thereby as determined
by such Person in good faith.


“Indemnified Taxes”
shall mean Taxes other than Excluded Taxes and Other Taxes.


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


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


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


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


 


29

















 


“Intellectual Property
Security Agreement” shall mean any of the following agreements executed on
or after the Closing Date (a) a Trademark Security Agreement substantially in
the form of Exhibit F-1, (b) a Patent Security Agreement substantially
in the form of Exhibit F-2 or (c) a Copyright Security Agreement
substantially in the form of Exhibit F3.


“Interest Payment Date”
shall mean (a) with respect to any ABR Loan (including any Swingline Loan), the
last Business Day of each March, June, September and December, commencing
December 31, 2007 and (b) with respect to any Eurodollar Loan, the last day of
the Interest Period applicable to such Loan and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months’ duration, each day
that would have been an Interest Payment Date had successive Interest Periods
of three months’ duration been applicable to such Borrowing.


“Interest Period”
shall mean with respect to any Eurodollar Borrowing, the period commencing on
the date of such Borrowing and ending on the numerically corresponding day (or,
if there is no numerically corresponding day, on the last day) in the calendar
month that is one, two or three (or nine or 12, with the consent of all of the
relevant Lenders) months or 14 days (or such other periods not in excess of six
months agreed to by the Administrative Agent in its sole discretion)
thereafter, as the Borrower may elect; provided, however, that 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.  Interest shall accrue from and including the
first day of an Interest Period to but excluding the last day of such Interest
Period.  For purposes hereof, the date of
a Borrowing initially 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.


“Internally Generated
Cash” shall mean any amount expended by the Borrower and its Restricted
Subsidiaries and not representing (a) a reinvestment by the Borrower or any
Restricted Subsidiaries of the Net Cash Proceeds of any Prepayment Asset Sale
outside the ordinary course of business or Property Loss Event, (b) the
proceeds of any issuance of any Disqualified Stock, Preferred Stock or
long-term Indebtedness of the Borrower or any Restricted Subsidiary (other than
Indebtedness under any revolving credit facility) or (c) any credit received by
the Borrower or any Restricted Subsidiary with respect to any trade in of
property for substantially similar property or any “like kind exchange” of
assets.


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


“Investment
Grade Securities” shall mean:


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


 


30

















 


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


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


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


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


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


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


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


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


“Investment Vehicle”
shall mean a separate account or vehicle for collective investment (in whatever
form of organization, including a corporation, limited liability company,
partnership, association, trust or other entity, and including each separate
portfolio or series of any of the foregoing), including any entity investing in
collateralized loan obligations or


 


31

















 


collateralized debt
obligations, which investments are managed by the Borrower or any of its
Restricted Subsidiaries in the ordinary course of business.


“Issuing Bank”
shall mean, as the context may require, (a) Deutsche Bank AG New York Branch,
acting through any of its Affiliates or branches, in its capacity as the issuer
of Letters of Credit hereunder and (b) any other Person that may become an
Issuing Bank pursuant to Section 2.23(i) or 2.23(k), with respect
to Letters of Credit issued at the time such Person was a Lender.  The Issuing Bank may, in its reasonable
discretion, arrange for one or more Letters of Credit to be issued by
Affiliates or branches of the Issuing Bank, in which case the term “Issuing
Bank” shall include any such Affiliate or branch with respect to Letters of
Credit issued by such Affiliate or branch.


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


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


“Junior Financing
Documentation” shall mean any indenture and/or other agreement pertaining
to Junior Financing.


“L/C Backstop” shall
mean, in respect of any Letter of Credit, (a) a letter of credit delivered to
the Issuing Bank which may be drawn by the Issuing Bank to satisfy any
obligations of the Borrower in respect of such Letter of Credit or (b) cash or
Cash Equivalents deposited with the Issuing Bank to satisfy any obligation of
the Borrower in respect of such Letter of Credit, in each case, in an amount
equal to undrawn face amount of such Letter of Credit and otherwise on terms
and pursuant to arrangements (including, if applicable, any appropriate
reimbursement agreement) reasonably satisfactory to the respective Issuing
Bank.


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


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


“L/C Exposure”
shall mean, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time and (b) the aggregate principal
amount of all L/C Disbursements that have not yet been reimbursed at such
time.  The L/C Exposure of any Revolving
Credit Lender at any time shall equal its Pro
Rata Percentage of the aggregate L/C Exposure at such time.


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


“Lenders” shall
mean (a) the Persons listed on Schedule 2.01 under the heading “Credit
Facilities” (other than any such Person that has ceased to be a party hereto
pursuant to an Assignment and Acceptance or pursuant to Section 2.21(a))
and (b) any Person that has become 


 


32

















 


a party hereto pursuant
to an Assignment and Acceptance in respect of the Credit Facilities.  Unless the context indicates otherwise, the
term “Lenders” shall include the Swingline Lender.


“Letter of Credit”
shall mean any letter of credit issued pursuant to Section 2.23.


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


“Letter of Credit
Request” shall have the meaning assigned to such term in Section 2.23(b).


“LIBO Rate” shall
mean, with respect to any Eurodollar Borrowing for any Interest Period:


(a)           the rate per annum equal to the rate
determined by the Administrative Agent to be the offered rate that appears on
the page of the LIBOR I screen (or any successor thereto) that displays an
average British Bankers Association Interest Settlement Rate for deposits in
Dollars (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period,
or


(b)           if the rate referenced in the
preceding subsection (a) does not appear on such page or service or such page
or service shall cease to be available, the rate per annum equal to the rate
determined by the Administrative Agent to be the offered rate on such other
page or other service that displays an average British Bankers Association
Interest Settlement Rate for deposits in Dollars (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period, or


(c)           if the rates referenced in the
preceding subsections (a) and (b) are not available, the rate per annum
determined by the Administrative Agent as the rate of interest (rounded upward
to the next 1/100th of 1%) at which deposits in Dollars for delivery on the
first day of such Interest Period in same day funds in the approximate amount
of the Eurocurrency Rate Loan being made, continued or converted by the
Administrative Agent and with a term equivalent to such Interest Period would
be offered by the Administrative Agent’s London Branch to major banks in the
offshore Dollar market at their request at approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period.


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


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


 


33

















 


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


“Loan Parties”
shall mean the Borrower and the Guarantors.


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


“Management Agreement”
shall mean collectively the management agreement between certain management
companies associated with the Sponsor, certain other equity investors, the
Borrower and any direct or indirect parent company, as in effect on the Closing
Date.


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


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


“Material Indebtedness”
shall mean Indebtedness (other than the Loans and Letters of Credit), or
Hedging Obligations, of the Borrower and its Restricted Subsidiaries in an
aggregate principal amount greater than or equal to $35,000,000.  For purposes of determining “Material
Indebtedness”, the “principal amount” of the obligations of the Borrower or any
Restricted Subsidiary in respect of any Hedging Obligation at any time shall be
the maximum aggregate amount (giving effect to any netting agreements) that the
Borrower or such Restricted Subsidiary would be required to pay if the relevant
hedging agreement were terminated at such time.


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


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


“Merger Agreement”
shall mean that certain Agreement and Plan of Merger dated as of June 19, 2007,
by and among Holdings, Merger Sub and the Company.


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


“Minimum Threshold”
shall mean (x) with respect to Term Loans, aggregate principal amount of at
least (i) $1,000,000 in the case of ABR Loans and (ii) $5,000,000 in the case
of Eurodollar Loans, (y) with respect to Revolving Loans, an aggregate
principal amount of at least (i) $250,000 in the case of ABR Loans or an
integral multiple of $250,000 in excess thereof and (ii) $1,000,000 in the case
of Eurodollar Loans or an integral multiple of $1,000,000 in excess thereof and
(z) with respect to Swingline Loans, an aggregate principal amount of at least
$100,000.


 


34

















 


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


“Mortgaged Properties”
shall mean each parcel of fee owned real property located in the United States
with a book value in excess of $7,500,000 and improvements thereto with respect
to which a Mortgage is granted pursuant to Section 5.09 or Section
5.10 to secure the Secured Obligations.


“Mortgages” shall
mean the mortgages, deeds of trust and other security documents granting a Lien
on any fee owned real property or interest therein to secure the Secured
Obligations, each in a form reasonably satisfactory to the Collateral Agent.


“Multiemployer Plan”
shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA
under which Holdings, the Borrower, any Restricted Subsidiary or any of their
respective ERISA Affiliates had any obligation or liability (contingent or
otherwise) within the last six years.


“Net Cash Proceeds”
shall mean (a) with respect to any Disposition or Property Loss Event, the
proceeds thereof in the form of cash and Cash Equivalents (including any such
proceeds subsequently received (as and when received) in respect of deferred
payments or noncash consideration initially received, net of any costs relating
to the disposition thereof), net of (i) out-of-pocket expenses incurred
(including broker’s fees or commissions, investment banking, consultant, legal,
accounting or similar fees, survey costs, title insurance premiums, and related
search and recording charges, transfer, deed, recording and similar taxes
incurred by the Borrower and its Restricted Subsidiaries in connection
therewith), and the Borrower’s good faith estimate of Taxes paid or payable
(including payments under any tax sharing agreement or arrangement of the type
described in clause  (b)(i) of the definition of Excess Cash
Flow), in connection with such Disposition or such Property Loss Event
(including, in the case of any such Disposition or Property Loss Event in
respect of property of any Foreign Subsidiary, Taxes payable upon the
repatriation of any such proceeds), (ii) amounts provided as a reserve, in
accordance with GAAP, against any (x) liabilities under any indemnification
obligations or purchase price adjustment associated with such Disposition and
(y) other liabilities associated with the asset disposed of and retained by the
Borrower or any of its Restricted Subsidiaries after such disposition,
including pension and other post-employment benefit liabilities and liabilities
related to environmental matters (provided that to the extent and at the
time any such amounts are released from such reserve, such amounts net of any
expense shall constitute Net Cash Proceeds), (iii) any funded escrow
established pursuant to the documents evidencing any such sale or disposition
to secure any indemnification obligations or adjustments to the purchase price
associated with any such sale or disposition (provided that to the
extent that any amounts are released from such escrow fund to the Borrower or a
Restricted Subsidiary, such amounts net of any expenses shall constitute Net
Cash Proceeds), (iv) the principal amount, premium or penalty, if any, interest
and other amounts on any Indebtedness or other obligation which is secured by a
Lien on the asset sold that (A) has priority over the Lien securing the
Obligations and which is repaid (other than Indebtedness hereunder) or (B) is
required to be repaid and is repaid pursuant to intercreditor arrangements
entered into by the Administrative Agent or the Collateral Agent and (v) in the
case of any such Disposition or Property Loss Event by a non-Wholly-Owned
Restricted Subsidiary, the pro rata portion
of the Net Cash Proceeds thereof (calculated without regard to this clause
(v)) attributable to minority interests and not available for distribution
to or


 


35

















 


for the account of the
Borrower or a wholly owned Restricted Subsidiary as a result thereof and (b)
with respect to any incurrence of Indebtedness, the cash proceeds thereof, net
of all Taxes (including, in the case of such Indebtedness incurred by a Foreign
Subsidiary, Taxes payable upon the repatriation of any such proceeds) and customary
fees, commissions, costs and other expenses incurred by the Borrower and its
Restricted Subsidiaries in connection therewith.


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


“New Senior Notes”
shall mean the Borrower’s 101⁄2% Senior Notes due 2015 in the original principal
amount of $785,000,000, as such amount may be increased from time to time in
respect of the payment of interest thereunder and any additional notes issued
pursuant to the terms of the New Senior Notes Documentation representing the
payment of interest (and includes any Refinancing Indebtedness in respect thereof
permitted by Section 6.01 (but without duplication of any amounts
otherwise permitted by clause (b)(ii) thereof) and any notes issued in
exchange or replacement of any of the foregoing on substantially identical
terms).


“New Senior Notes
Documentation” shall mean the New Senior Notes and the indenture governing
the New Senior Notes.


“Non-Consenting
Lenders” shall have the meaning assigned to such term in Section 2.21(a).


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


“Notice of Intent to
Cure” shall have the meaning assigned to such term in Section 7.02.


“Obligations”
shall mean the unpaid principal of and interest on the Loans and all other
obligations and liabilities of the Borrower or any other Loan Party to the
Administrative Agent or any Lender, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, this Agreement, any other Loan
Document and the Letters of Credit and whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
(including all fees, charges and disbursements of counsel to the Administrative
Agent or any Lender that are required to be paid pursuant hereto or any other
Loan Document and including interest accruing after the maturity of the Loans
and L/C Disbursements and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to a Loan Party, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) or otherwise.


“Offer to Repay Notice”
shall have the meaning assigned to such term in Section 2.13(g).


“Offer to Repay Term
Loans” shall have the meaning assigned to such term in Section 2.13(g).


 


36

















 


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


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


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


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


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


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


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


“Perfection
Certificate” shall mean a perfection certificate executed by the Loan
Parties in a form reasonably approved by the Collateral Agent.


“Permitted Acquisition”
shall mean the Acquisition by the Borrower or any of its Restricted
Subsidiaries of an Acquired Entity or Business (including by way of merger of
such Acquired Entity or Business with and into the Borrower (so long as the
Borrower is the surviving corporation) or a Restricted Subsidiary of the
Borrower), provided that (in each case) (A) the Acquired Entity or
Business acquired pursuant to the respective Permitted Acquisition is in a
business permitted by Section 6.09(a), (B) the aggregate consideration
paid for all Acquisitions of Acquired Entities or Businesses which Persons are
not Loan Parties (or, in the case of an asset


 


37

















 


acquisition, the acquired
assets would be owned by Persons which are not Loan Parties) are subject to the
limitations set forth in Section 6.03(d) and (C) all requirements of Sections
5.12 and 6.04 applicable to Permitted Acquisitions are satisfied or
waived.  Notwithstanding anything to the
contrary contained in the immediately preceding sentence, an acquisition which
does not otherwise meet the requirements set forth above in the definition of “Permitted
Acquisition” shall constitute a Permitted Acquisition if, and to the extent,
the Required Lenders agree in writing, prior to the consummation thereof, that
such acquisition shall constitute a Permitted Acquisition for purposes of this
Agreement.


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


“Permitted Investments”
shall mean:


(a)           any Investment (other than
redemptions, prepayments, repurchases, acquisitions or retirement of the
Existing Notes due 2015) in the Borrower or any of its Restricted Subsidiaries;
provided that the fair market value of all Investments made by Loan
Parties in Restricted Subsidiaries that are not Loan Parties are subject to the
limitations set forth in Section 6.03(d);


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


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


(i)            (x) such Person becomes a Loan Party or (y) such Person,
in one transaction or a series of related transactions, is merged or
consolidated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, a Loan Party, and


(ii)           such Investment constitutes a Permitted Acquisition
consummated in accordance with Section 5.12,


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


(d)           any Investment in securities or other
assets not constituting cash, Cash Equivalents or Investment Grade Securities
and received in connection with a Disposition made pursuant to Section 6.05;


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


 


38

















 


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


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


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


(g)           Hedging Obligations that are not
speculative in nature;


(h)           Investments the payment for which
consists of Equity Interests (exclusive of Disqualified Stock and those issued
in exchange for Equity Cure Proceeds) of the Borrower or any direct or indirect
parent company; provided, however, that such Equity Interests
will not increase the Restricted Payment Applicable Amount;


(i)            Indebtedness and guarantees
permitted under Section 6.01;


(j)            any transaction to the extent it
constitutes an Investment that is permitted and made in accordance with Section
6.06;


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


(l)            subject to the limitations set forth
in Section 6.03(d), additional Investments having an aggregate fair
market value, taken together with all other Investments made pursuant to this clause
(l) that are at the time outstanding (without giving effect to the sale of
an Unrestricted Subsidiary to the extent the proceeds of such sale do not
consist of cash or marketable securities), not to exceed $100,000,000 (with the
fair market value of each Investment being measured at the time made and
without giving effect to subsequent changes in value); provided that (x)
if such Investment is in Capital Stock of a Person that subsequently becomes a
Restricted Subsidiary, such Investment shall thereafter be deemed permitted
under clause (a) above and shall not be included as having been made
pursuant to this clause (l) and (y) the aggregate amount of
Investments made pursuant to this clause (l) in Unrestricted
Subsidiaries may not exceed $50,000,000 at any time;


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


(n)           advances to, or guarantees of
Indebtedness of, directors, employees, officers and consultants not in excess
of $15,000,000 outstanding at any one time, in the aggregate;


(o)           loans and advances to officers,
directors and employees for moving or relocation expenses and other similar
expenses, in each case incurred in the ordinary course of


 


39

















 


business or to fund such
Person’s purchase of Equity Interests of the Borrower or any direct or indirect
parent company;


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


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


(r)            loans and advances relating to
indemnification or reimbursement of any officers, directors or employees in
respect of liabilities relating to their serving in any such capacity or as
otherwise specified in Section 6.06;


(s)            Investments in the nature of pledges
or deposits with respect to leases or utilities provided to third parties in
the ordinary course of business;


(t)            Investments consisting of licensing
of intellectual property pursuant to joint marketing arrangements with other
Persons;


(u)           extensions of trade credit in the
ordinary course of business;


(v)           earnest money deposits required in
connection with Permitted Acquisitions; and


(w)          Seed Capital Investments made by the Borrower
or any Restricted Subsidiary in the ordinary course of business.


“Permitted Investors”
shall mean (a) the Sponsor, (b) any other Person making an Investment in
Holdings concurrently with the Sponsor on the Closing Date, (c) any Person who
is an officer or otherwise a member of management of the Borrower or any of its
subsidiaries on the Closing Date; provided that if such officers and
members of management beneficially own more shares of Capital Stock of either
the Borrower or its direct or indirect parent entities than the amount of
shares beneficially owned by all the officers on the Closing Date or issued
within 90 days thereafter, such excess shall be deemed not to be beneficially
owned by the Permitted Investors, (d) any Related Entity of any of the
foregoing Persons and (e) any “group” (within the meaning of Section 13(d)(3)
or Section 14(d)(2) of the Exchange Act or any successor provision) of
which any of the foregoing Persons specified in clauses  (a), (b),
(c) or (d) are members; provided that no member of the “group”
(other than the Sponsor) shall, without giving effect to Rule 13(d)-5 of the
Exchange Act, have beneficial ownership, directly or indirectly, of 50% or more
of the Capital Stock entitled to vote in the election of the Board of Directors
of the Borrower or any of its direct or indirect parent entities, including
Holdings.


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


(a)           pledges or deposits by such Person
under workmen’s compensation laws, unemployment insurance laws or similar
legislation, or good faith deposits in connection with bids, tenders, contracts
(other than for the payment of Indebtedness) or leases to which such Person is
a party, deposits given to public or private utilities or any governmental
authority, or


 


40

















 


deposits to secure public or
statutory obligations of such Person or deposits of cash or U.S. government
bonds to secure surety or appeal bonds to which such Person is a party, or
deposits as security for contested taxes or import duties or for the payment of
rent, in each case incurred in the ordinary course of business;


(b)           Liens imposed by law, such as
landlords’, carriers’, warehousemen’s and mechanics’ Liens, in each case for
sums (i) not yet overdue for a period of more than 60 days or being contested
in good faith by appropriate proceedings or other Liens arising out of
judgments or awards against such Person with respect to which such Person shall
then be proceeding with an appeal or other proceedings for review if adequate
reserves with respect thereto are maintained on the books of such Person in
accordance with GAAP or (ii) the failure to pay could not reasonably be
expected to result in a Material Adverse Effect;


(c)           Liens for taxes, assessments or other
governmental charges that are not required to be paid pursuant to Section
5.03;


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


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


(f)            Liens securing Indebtedness
permitted to be incurred pursuant to Section 6.01(b)(iv), (xxii)
and (xvii) (solely to the extent securing such Equity Interests being
purchased or redeemed); provided that Liens securing Indebtedness
permitted to be incurred pursuant to paragraph  (b)(iv) are solely
on the assets financed, purchased, constructed, improved, or acquired or assets
of the acquired entity, as the case may be;


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


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


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


 


41

















 


further, that the
Liens may not extend to any other property owned by the Borrower or any of its
Restricted Subsidiaries;


(j)            Liens securing Indebtedness or other
obligations of the Borrower or a Restricted Subsidiary owing to the Borrower or
another Restricted Subsidiary permitted to be incurred in accordance with Section 6.01(b)(vii);


(k)           Liens securing Hedging Obligations so
long as, in the case of Hedging Obligations related to interest, the related
Indebtedness is secured by a Lien on the same property securing such Hedging
Obligations;


(l)            Liens on specific items of inventory
or other goods and proceeds of any Person securing such Person’s obligations in
respect of bankers’ acceptances issued or created for the account of such
Person to facilitate the purchase, shipment or storage of such inventory or other
goods, and pledges or deposits in the ordinary course of business securing
inventory purchases from vendors;


(m)          leases, subleases, licenses or
sublicenses (including licenses and sublicenses of intellectual property)
granted to others in the ordinary course of business which do not materially
interfere with the ordinary conduct of the business of the Borrower or any of
its Restricted Subsidiaries or which do not by their own terms secure any
Indebtedness;


(n)           Liens arising from UCC financing
statement filings regarding operating leases or consignments entered into by
the Borrower and its Restricted Subsidiaries in the ordinary course of
business;


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


(p)           Liens on inventory or equipment of
the Borrower or any of its Restricted Subsidiaries granted in the ordinary
course of business to the Borrower’s or such Restricted Subsidiary’s clients or
customers at which such inventory or equipment is located;


(q)           Liens to secure any refinancing,
refunding, extension, renewal or replacement (or successive refinancing,
refunding, extensions, renewals or replacements) as a whole, or in part, of any
Indebtedness permitted by Section 6.01 and secured by any Lien
referred to in the foregoing clauses  (f), (g), (h),
and (i); provided, however, that (i) such new Lien shall
be limited to all or part of the same property that secured the original Lien
(plus improvements on such property), and (ii) the Indebtedness secured by such
Lien at such time is not increased to any amount greater than the sum of (A)
the outstanding principal amount or, if greater, committed amount of the
Indebtedness described under clauses  (f), (g), (h),
and (i) at the time the original Lien became a Permitted Lien hereunder
plus accrued and unpaid interest, and (B) an amount necessary to pay any fees
and expenses, including premiums, related to such refinancing, refunding,
extension, renewal or replacement;


(r)            pledges or deposits made in the
ordinary course of business to secure liability to insurance carriers and Liens
on insurance policies and the proceeds thereof (whether accrued or not), rights
or claims against an insurer or other similar asset securing insurance premium
financings permitted under Section 6.01(b)(xix);


 


42

















 


(s)            Liens securing judgments for the
payment of money not constituting an Event of Default and any appropriate legal
proceedings that may have been duly initiated for the review of such judgment
have not been finally terminated or the period within which such proceedings
may be initiated has not expired;


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


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


(v)           Liens deemed to exist in connection
with Investments in repurchase agreements permitted under Section 6.01;
provided that such Liens do not extend to any assets other than those
that are the subject of such repurchase agreement;


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


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


(y)           Liens securing the Obligations and
the Secured Obligations;


(z)           any encumbrance or retention
(including put and call agreements and rights of first refusal) with respect to
the Equity Interests of any joint venture or similar arrangement pursuant to
the joint venture or similar agreement with respect to such joint venture or
similar arrangement, provided that no such encumbrance or restriction
affects in any way the ability of the Borrower or any Restricted Subsidiary to
comply with Section 5.09;


(aa)         Liens on property subject to Sale and
Lease-Back Transactions permitted hereunder and general intangibles related
thereto;


(bb)         Liens consisting of contractual
restrictions of the type described in the definition of Restricted Cash;


(cc)         possessory Liens in favor of brokers
and dealers arising in connection with the acquisition or disposition of
Investments owned as of the date hereof and other Permitted Investments; provided
that such Liens (x) attach only to such Investments or other Investments


 


43

















 


held by such broker or
dealer and (y) secure only obligations incurred in the ordinary course of
business and arising in connection with the acquisition or disposition of such
Investments and not any obligation in connection with the incurrence of
Indebtedness or margin financing;


(dd)         Liens arising solely by virtue of any
statutory or common law provisions relating to banker’s liens, liens in favor
of securities intermediaries, rights of set-off or similar rights and remedies
as to securities accounts or other funds maintained with securities
intermediaries; provided that such Liens (x) attach only to securities
held by the relevant securities intermediary and (y) secure only obligations
incurred in the ordinary course of business arising in connection with the
acquisition, disposition or holding of such securities and not any obligation
in respect of the incurrence of Indebtedness or margin financing;


(ee)         Liens attaching solely to cash earnest
money deposits in connection with any letter of intent or purchase agreement in
connection with a Permitted Investment;


(ff)          any interest or title of a licensor, a
sublicensor, lessor, sublessor, franchisor or permitor under any license,
operating or true lease, franchise or permit;


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


(hh)         Liens arising by operation of
Article 2 of the UCC in favor of a reclaiming seller of goods or buyer of
goods; and


(ii)           other Liens securing obligations
incurred in the ordinary course of business which obligations do not exceed
$35,000,000 at any one time outstanding.


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


“Platform” shall
have the meaning assigned to such term in Section 5.04.


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


“Preferred Stock”
shall mean any Equity Interest with preferential rights of payment of dividends
or upon liquidation, dissolution, or winding up; provided that in no
event shall Equity Interests outstanding as of the Closing Date issued
thereafter to any officer, director, employee or consultant of the Borrower or
any Restricted Subsidiary in respect of services provided to the Borrower or
any Restricted Subsidiary in the ordinary course of business approved by Board
of Directors of the Borrower be considered Preferred Stock.


“Prepayment Asset Sale”
shall mean any Disposition, to the extent that (a) the aggregate Net Cash
Proceeds of all such Dispositions during any fiscal year exceed $25,000,000 and
(b) the aggregate Net Cash Proceeds of all such Dispositions during any five
fiscal year period exceed $50,000,000; provided, however, that
the term “Prepayment Asset Sale” shall not


 


44

















 


 


include any transaction
permitted (or not expressly prohibited) by Section 6.05 (other than
transactions consummated in reliance on Section 6.05(p), (q) and (s).


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


“Prime Rate” shall
mean the rate of interest per annum announced from time to time by Deutsche
Bank AG New York Branch as its prime rate in effect at its principal office in
New York City; each change in the Prime Rate shall be effective as of the
opening of business on the date such change is announced as being effective.  The Prime Rate is a reference rate and does
not necessarily represent the lowest or best rate actually available.


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


“Property Loss Event”
shall mean any event that gives rise to the receipt by the Borrower or any of
its Restricted Subsidiaries of any insurance proceeds or condemnation awards in
respect of any equipment, fixed assets or real property (including any
improvements thereon) to replace or repair such equipment, fixed assets or real
property; provided, however, for purposes of determining whether
an Offer to Repay Term Loans under Section 2.13(b) would be required, a
Property Loss Event shall be deemed to have occurred only to the extent that
the aggregate Net Cash Proceeds (a) of all such events, during any fiscal year
exceed $25,000,000 and (b) of all such events, during any five fiscal year period
after the Closing Date exceed $50,000,000.


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


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


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


“Qualified Public Offering”
shall mean the issuance by the Borrower or any direct or indirect parent
company of its common Equity Interests in an underwritten primary public
offering (other than a public offering pursuant to a registration statement on
Form S-8) pursuant to an effective registration statement filed with the SEC in
accordance with the Securities Act, as amended.


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


 


45

















 


“Receivables Facility”
shall mean any of one or more receivables financing facilities as amended,
supplemented, modified, extended, renewed, restated or refunded from time to
time, the obligations of which are non-recourse (except for customary
representations, warranties, covenants and indemnities made in connection with
such facilities) to the Borrower or any of its Restricted Subsidiaries (other
than a Receivables Subsidiary) pursuant to which the Borrower or any of its
Restricted Subsidiaries sells their accounts receivable or rights to future
advisory fees (including 12b-1 fees) to either (A) a Person that is not a
Restricted Subsidiary or (B) a Receivables Subsidiary that in turn sells its
accounts receivable or rights to future advisory fees to a Person that is not a
Restricted Subsidiary.


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


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


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


“Refinancing”
shall have the meaning assigned to such term in Section 4.02(m).


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


“Refunding Capital
Stock” shall have the meaning assigned to such term in Section
6.03(b)(ii).


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


“Regulation T”
shall mean Regulation T of the Board and all official rulings and
interpretations thereunder or thereof.


“Regulation U”
shall mean Regulation U of the Board and all official rulings and
interpretations thereunder or thereof.


“Regulation X”
shall mean Regulation X of the Board and all official rulings and
interpretations thereunder or thereof.


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


 


46

















 


“Related Entity”
shall mean (a) with respect to Madison Dearborn Partners LLC or any other
Person making an investment in Holdings on the Closing Date, as the case may be,
(i) any investment fund controlled by or under common control with Madison
Dearborn Partners LLC or any other Person making an investment in Holdings on
the Closing Date, as the case may be, any officer, director or person
performing an equivalent function of the foregoing persons, or any entity
controlled by any of the foregoing Persons and (ii) any spouse or lineal
descendant (including by adoption and stepchildren) of the officers and
directors referred to clause  (a)(i); and (b) with respect to any
officer of the Borrower or its subsidiaries, (i) any spouse or lineal
descendant (including by adoption and stepchildren) of the officer and (ii) any
trust, corporation or partnership or other entity, in each case to the extent
not an operating company, of which an 80% or more controlling interest is held
by the beneficiaries, stockholders, partners or owners who are the officer, any
of the persons described in clause (b)(i) above or any combination of
these identified relationships.


“Related Fund”
shall mean, with respect to any Lender that is a fund or commingled investment
vehicle that invests in bank loans or similar extensions of credit, any other
fund that invests in bank loans or 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.


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


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


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


“Repricing Transaction”
shall mean (1) the incurrence by the Borrower of any Indebtedness (including,
without limitation, any new or additional Term Loans under this Agreement,
whether incurred directly or by way of the conversion of Term Loans into
Replacement Term Loans) that is broadly marketed or syndicated to banks and
other institutional investors in financings similar to the facilities provided
for in this Agreement (i) having an “effective” interest rate margin or
weighted average yield for the respective Type of such Indebtedness that is
less than the applicable rate for or weighted average yield Term Loans of the
respective Type (with the comparative determinations to be made in the reasonable
judgment of the Administrative Agent consistent with generally accepted
financial practices, after giving effect to, among other factors, margin,
upfront or similar fee or “original issue discount” shared with all lenders or
holders of such Indebtedness or Term Loans, as the case may be, but excluding
the effect of any arrangement, structuring, syndication or other fees payable
in connection therewith that are not shared with all lenders or holders of such
Indebtedness or Term Loans, as the case may be, and without taking into account
any fluctuations in the Adjusted LIBO Rate) but excluding Indebtedness incurred
in connection with a Change of Control, and (ii) the proceeds of which are used
to prepay (or, in the case of a conversion, deemed to prepay or replace), in
whole or in part, outstanding principal of Term Loans or (2) any effective


 


47

















 


reduction in the
Applicable Percentage for Term Loans (e.g.,
by way of amendment, waiver or otherwise). 
Any such determination by the Administrative Agent as contemplated by
preceding clauses (1) and (2) shall be conclusive and binding on all Lenders
holding Term Loans.


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


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


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


“Responsible Officer”
of any Person shall mean any Financial Officer or any executive vice president,
senior vice president, vice president, secretary or assistant secretary of such
Person and any other officer or similar official thereof responsible for the
administration of the obligations of such Person in respect of this Agreement
and, as to any document delivered on the Closing Date, any secretary or
assistant secretary of such Person.


“Restricted Cash”
shall mean cash and Cash Equivalents held by the Borrower and its Restricted
Subsidiaries that are contractually restricted from being distributed to the
Borrower, except for such restrictions that are contained in agreements
governing Indebtedness permitted under Section 6.01 and that is secured
by such cash or Cash Equivalents, or that are classified as “restricted cash”
on the consolidated balance sheet of the Borrower prepared in accordance with
GAAP.


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


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


“Restricted Payment”
shall mean:


(a)           the declaration or payment of any
dividend or the making of any payment or distribution on account of the
Borrower’s or any Restricted Subsidiary’s Equity Interests, including any
dividend or distribution payable in connection with any merger or consolidation
other than:


 


48

















 


(i)            dividends or distributions payable solely in Equity
Interests (other than Disqualified Stock) of the Borrower or in options,
warrants or other rights to purchase such Equity Interests (other than
Disqualified Stock); or


(ii)           dividends or distributions by a Restricted Subsidiary so
long as, in the case of any dividend or distribution payable on or in respect
of any class or series of securities issued by a Restricted Subsidiary (other
than a Wholly-Owned Subsidiary), such dividend or distribution is made in
accordance with the terms of the agreement or instrument governing such class
or series of securities;


(b)           the purchase, redemption, defeasance
or other acquisition or retirement for value of any Equity Interests of the
Borrower or any direct or indirect parent company of the Borrower held by any
Person (other than by a Restricted Subsidiary), including in connection with
any merger or consolidation;


(c)           the making of any principal payment
on, or redemption, repurchase, defeasance or other acquisition or retirement
for value in each case, prior to any scheduled repayment, sinking fund payment
or maturity, of the Existing Notes due 2015, the New Senior Notes or any
Subordinated Indebtedness other than:


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


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


(d)           the making of any Restricted
Investment.


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


(a)           in the event that both (x) the Senior
Secured Net Leverage Ratio determined on the last day of the fiscal quarter
last ended prior to the Reference Time for which Section 5.04 Financials have
been delivered to the Administrative Agent pursuant to, as the case may be, is
less than 5.00:1.00 and (y) the Borrower is in compliance on a pro forma basis with the financial covenant
set forth in Section 6.07 at the Reference Time determined on the last
day of the fiscal quarter last ended prior to the Reference Time for which
Section 5.04 Financials have been delivered to the Administrative Agent, the
sum of (I) $125,000,000 and (II) an amount, not less than zero, determined on a
cumulative basis equal to Excess Cash Flow for each fiscal year of the Borrower
ended on or after December 31, 2008 and prior to the Reference Time, minus
an amount equal to the amount paid by the Borrower as a mandatory prepayment
pursuant to Section 2.13(c) for such fiscal years; plus


(b)           100% of the aggregate net cash
proceeds and the fair market value, as determined in good faith by the
Borrower, of marketable securities or other property received by the Borrower
or a Restricted Subsidiary (without the issuance of additional Equity Interests
in


 


49

















 


such Restricted Subsidiary)
since immediately after the Closing Date (other than to the extent used to fund
the Transactions or other Permitted Investments or Restricted Payments pursuant
to Section 6.03), from the issue or sale of:


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


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


                (y)           Designated Preferred Stock; and


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


(ii)           debt of the Borrower or any Restricted Subsidiary that has
been converted into or exchanged for such Equity Interests of the Borrower or a
direct or indirect parent company of the Borrower; or


(iii)          Disqualified Stock of the Borrower or any Restricted Subsidiary
that has been converted into or exchanged for Qualified Capital Stock of the
Borrower;


provided, however, that this paragraph (b)
shall not include the proceeds from (v) the exercise of any Cure Right, (w)
Refunding Capital Stock, (x) Equity Interests or convertible debt securities
sold to the Borrower or a Restricted Subsidiary, as the case may be, (y)
Disqualified Stock or debt securities that have been converted into
Disqualified Stock or (z) Excluded Contributions; plus


(c)           100% of the aggregate amount of cash
and the fair market value, as determined in good faith by the Borrower, of
marketable securities or other property contributed to the capital of the
Borrower following the Closing Date (other than (i) to the extent applied to
fund the Transactions or other Permitted Investments or Restricted Payments
pursuant to Section 6.03(b), by a Restricted Subsidiary and (ii) any
Excluded Contributions); plus


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


 


50

















 


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


(ii)           the sale or other disposition (other than to the Borrower
or a Restricted Subsidiary) of the stock of an Unrestricted Subsidiary (other
than to the extent such Investment constituted a Permitted Investment) or a
dividend or distribution from an Unrestricted Subsidiary after the Closing
Date; plus


(e)           in the case of the redesignation of
an Unrestricted Subsidiary as a Restricted Subsidiary after the Closing Date,
the fair market value of the Investment in such Unrestricted Subsidiary, as
determined by the Borrower in good faith or if such fair market value may
exceed $15,000,000, in writing by an Independent Financial Advisor, at the time
of the redesignation of such Unrestricted Subsidiary as a Restricted
Subsidiary, other than (i) Equity Cure Proceeds or (ii) or to the extent such
Investment constituted a Permitted Investment.


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


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


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


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


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


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


 


51

















 


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


“Revolving Credit
Maturity Date” shall mean November 13, 2013.


“Revolving Loans”
shall mean the revolving loans made by the Lenders to the Borrower pursuant to Section
2.01(b).


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


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


“Scheduled Repayment”
shall have the meaning assigned to such term in Section 2.11(b).


“SEC” shall mean
the U.S. Securities and Exchange Commission.


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


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


“Secured Obligations”
shall mean all obligations defined as “Obligations” in the Guarantee and
Collateral Agreement and the other Security Documents.


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


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


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


“Seed Capital
Investment” shall mean each Investment Vehicle in which the Borrower or one
or more of its Restricted Subsidiaries has invested or is investing “seed” or “early
stages” capital in the ordinary course of business.


“Senior Secured
Indebtedness” shall mean Consolidated Total Indebtedness of the Borrower
and its Restricted Subsidiaries other than (x) the Existing Notes, (y) any
Consolidated


 


52

















 


Total Indebtedness that
is unsecured or is secured by a Lien that is subordinated to the Liens securing
the Obligations, or (y) that is Subordinated Indebtedness.


“Senior Secured Net
Leverage Ratio” shall mean, as of any date, the ratio of (i) (A) the
aggregate principal amount of Senior Secured Indebtedness on such date minus
(B) the amount of cash and Cash Equivalents in excess of any Restricted
Cash that would be stated on the balance sheet of the Borrower and its
Restricted Subsidiaries and held by the Borrower and its Restricted
Subsidiaries as of such date of determination, as determined in accordance with
GAAP to (ii) EBITDA of the Borrower and its Restricted Subsidiaries for the
most recently ended four fiscal quarters ending immediately prior to such date
for which Section 5.04 Financials have been delivered to the
Administrative Agent.


“Similar Business”
shall mean any business and any services, activities or businesses incidental,
or reasonably related or similar to, or complementary to any line of business
engaged in by the Company and its subsidiaries on the Closing Date or any
business activity that is a reasonable extension, development or expansion
thereof or ancillary thereto.


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


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


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


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


“Statutory Reserves”
shall mean 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) applicable on the interest rate
determination date (expressed as a decimal) established by the Board and
applicable to any member of bank of the Federal Reserve System in respect of
Eurocurrency Liabilities (as defined in Regulation D of the Board).


 


53

















 


“Subordinated
Indebtedness” shall mean any Indebtedness of the Borrower and the
Guarantors which is by its terms subordinated in right of payment to the
Obligations of the Borrower or such Guarantor, as applicable.


“subsidiary” shall
mean, with respect to any Person (herein referred to as the “parent”), any
corporation, partnership, limited liability company, association or other
business entity of which securities or other ownership interests representing
more than 50% of the ordinary voting power or more than 50% of the general
partnership interests are, at the time any determination is being made, owned
or held by the parent, one or more subsidiaries of the parent or a combination
thereof; provided that, in all cases, the term “subsidiary” shall not
include any Investment Vehicle even if any such entity would be consolidated
with the Borrower under GAAP.  Unless
otherwise specified, “subsidiary” shall mean any subsidiary of the Borrower.


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


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


“Successor Holdings
Guarantor” shall have the meaning assigned to such term in Section
6.04(d)(i).


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


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


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


“Swingline Lender”
shall mean Deutsche Bank AG New York Branch, acting through any of its
Affiliates or branches, in its capacity as lender of Swingline Loans hereunder.


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


“Target Material
Adverse Effect” shall mean any fact, event, circumstance, development,
change, occurrence or effect that, individually or in the aggregate with all
other facts, events, circumstances, developments, changes, occurrences or
effects, (i) is materially adverse to the business, financial condition or
results of operations of the Company and its Subsidiaries, taken as a whole,
other than any fact, event, circumstance, development, change, occurrence or
effect to the extent relating to:  (A)
(1) the economic, business, financial or


 


54

















 


regulatory environment
generally affecting the investment management industry to the extent such fact,
event, circumstance, development, change, occurrence or effect does not have a
materially disproportionate effect on the Company, (2) an act of terrorism or
an outbreak or escalation of hostilities or war (whether declared or not
declared) or any natural disasters or any national or international calamity or
crisis affecting the United States to the extent such fact, event,
circumstance, development, change, occurrence or effect does not have a
materially disproportionate effect on the Company, (3) changes in applicable
law or GAAP or the enforcement thereof after the date hereof to the extent such
change or enforcement thereof does not have a materially disproportionate
effect on the Company, (4) any reduction in the level of assets under
management or revenue run rate of the Company in and of itself (for the
avoidance of doubt, any underlying cause for any such reduction shall not be
excluded by this clause (4)), (5) the failure of the Company to meet
analysts’ expectations, projections or forecasts or changes in the market price
or trading volume of the Company’s securities, in each case, in and of itself
(for the avoidance of doubt, any underlying cause for any such failure or
changes shall not be excluded by this clause (5)), (6) any failure of
the Company to take any action referred to in Section 5.1 of the Merger
Agreement due to Holdings’ withholding of consent following written notice from
the Company that the withholding of such consent would reasonably be expected to
have a Company Material Adverse Effect (determined in accordance in accordance
with the balance of this definition), or (7) any litigation arising from or
relating to allegations of a breach of any fiduciary duty relating to this
Agreement or the transactions contemplated hereby, or (B) the public
announcement or pendency of the Merger Agreement or the performance of and
compliance with the terms of the Merger Agreement, including losses or
threatened losses of the relationships of the Company or any of its
Subsidiaries with any Clients (as defined in the Merger Agreement) or the loss
or departure of any officers or employees of the Company or any of its
Subsidiaries; or (ii) that prevents or materially delays or materially impairs
the ability of the Company to consummate the Merger by March 19, 2008.


“Taxes” shall mean
any and all present or future taxes, levies, imposts, duties, deductions,
charges, liabilities or withholdings imposed by any Governmental Authority and
all interest, penalties or similar liabilities with respect thereto.


“Term Loan” shall
mean the term loans made by the Lenders to the Borrower pursuant to Section
2.01(a) and, if applicable, any Incremental Term Loans.


“Term Loan Borrowing”
shall mean a Borrowing comprised of Term Loans.


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


“Term Loan Facility”
shall mean any tranche of Term Loans issued hereunder.


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


 


55
















 


“Term Loan Maturity
Date” shall mean November 13, 2014.


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


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


“Total Net Leverage
Ratio” shall mean, as of any date, the ratio of
(i) (A) Consolidated Total Indebtedness of the Borrower and its
Restricted Subsidiaries on such date minus (B) the amount of cash and
Cash Equivalents in excess of any Restricted Cash that would be stated on the
balance sheet of the Borrower and its Restricted Subsidiaries and held by the
Borrower and its Restricted Subsidiaries as of such date of determination, as
determined in accordance with GAAP to (ii) EBITDA of the Borrower and its
Restricted Subsidiaries for the most recently ended four fiscal quarters ending
immediately prior to such date for which Section 5.04 Financials have been
delivered to the Administrative Agent.


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


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


“Transactions”
shall mean, collectively, (a) the Merger, (b) the Equity Investment, (c) the
issuance of the New Senior Notes, (d) the funding of the Loans and the other
transactions contemplated by this Agreement and the other Loan Documents, (e)
the Refinancing, and (f) the payment of Transaction Expenses.


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


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


“Uniform Commercial
Code” or “UCC” means the Uniform Commercial Code as in effect in any
applicable jurisdiction from time to time.


“Unrestricted
Subsidiary” shall mean:


 


56

















 


(a)           any subsidiary of the Borrower which
at the time of determination is an Unrestricted Subsidiary (as designated by
the Borrower, as provided in Section 5.11); and


(b)           any subsidiary of an Unrestricted
Subsidiary.


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


“Waivable Mandatory
Prepayment” shall have the meaning assigned to such term in Section 2.13(f).


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


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


(b)           the sum of all such payments.


“Wholly-Owned
Subsidiary” of any Person shall mean a subsidiary of such Person, 100% of
the Equity Interests of which (other than directors’ qualifying shares or other
nominal shares required by applicable law to be held by another party) shall be
owned by such Person or by one or more Wholly-Owned Subsidiaries of such
Person.


Section 1.02.  Terms Generally.  The definitions in Section 1.01 shall
apply equally to both 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”; and the words “asset” and “property”
shall be construed as having 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. 
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 of this Agreement unless the context shall
otherwise require.  All references herein
to Articles, Sections, paragraphs, clauses, subclauses, Exhibits and Schedules
shall be deemed references to Articles, Sections, paragraphs, clauses and
subclauses of, and Exhibits and Schedules to, this Agreement unless the context
shall otherwise require.  All references
to “knowledge” of any Loan Party or a Restricted Subsidiary of the Borrower
means the actual knowledge of a Responsible Officer.  Except as otherwise expressly provided
herein, the Guaranteed Net Leverage Ratio, the Senior Secured Net Leverage
Ratio and the Total Net Leverage Ratio (and the financial definitions used
therein) shall be construed in accordance with GAAP, as in effect on the
Closing Date; provided, however, that if the Borrower notifies
the Administrative Agent that the Borrower wishes to amend the Guaranteed Net
Leverage Ratio, the Senior Secured Net Leverage Ratio or the Total Net Leverage
Ratio or any financial


 


57

















 


definition used therein
to implement the effect of any change in GAAP or the application thereof
occurring after the Closing Date on the operation thereof (or if the
Administrative Agent notifies the Borrower that the Required Lenders wish to
amend the Guaranteed Net Leverage Ratio, the Senior Secured Net Leverage Ratio
or the Total Net Leverage Ratio or any financial definition used therein for
such purpose), then the Borrower and the Administrative Agent shall negotiate
in good faith to amend the Guaranteed Net Leverage Ratio, the Senior Secured
Net Leverage Ratio or the Total Net Leverage Ratio or the definitions used
therein (subject to the approval of the Required Lenders) to preserve the
original intent thereof in light of such changes in GAAP; provided that
all determinations made pursuant to the Guaranteed Net Leverage Ratio, the
Senior Secured Net Leverage Ratio or the Total Net Leverage Ratio or any
financial definition used therein shall be determined on the basis of GAAP as
applied and in effect immediately before the relevant change in GAAP or the
application thereof became effective, until the Guaranteed Net Leverage Ratio,
the Senior Secured Net Leverage Ratio or the Total Net Leverage Ratio or such
financial definition is amended.  All
accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data required to be submitted
pursuant to this Agreement shall be prepared in conformity with, GAAP, as in
effect from time to time.


Section 1.03.  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 Credit Borrowing”) or by Type (e.g.,
a “Eurodollar Borrowing”) or by Class and Type (e.g.,
a “Eurodollar Revolving Credit Borrowing”).


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


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


Section 1.06.  Times of Day.  Unless otherwise specified, all references
herein to times of day shall be references to Eastern time (daylight or
standard, as applicable).


Section 1.07.  Timing of Payment or Performance.  When the payment of any obligation or the
performance of any covenant, duty or obligation is stated to be due or
performance required on a day which is not a Business Day, the date of such
payment or performance shall extend to the immediately succeeding Business Day
and such extension of


 


58

















 


time shall be reflected
in computing interest or fees, as the case may be; provided that with
respect to any payment of interest on or principal of Eurodollar Loans, if such
extension would cause any such payment to be made in the next succeeding
calendar month, such payment shall be made on the immediately preceding
Business Day.


Section 1.08.  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.


Section 1.09.  Pro Forma Calculations.  For purposes of determining whether any
action is otherwise permitted to be taken hereunder, each of the Guaranteed Net
Leverage Ratio, the Senior Secured Net Leverage Ratio and the Total Net
Leverage Ratio shall be calculated as follows:


(a)           In the event that
the Borrower or any Restricted Subsidiary (i) incurs, redeems, retires or
extinguishes any Indebtedness or (ii) issues or redeems Disqualified Stock or
Preferred Stock subsequent to the commencement of the period for which such
ratio is being calculated but prior to or simultaneously with the event for which
the calculation of such ratio is made (a “Ratio Calculation Date”), then
such ratio shall be calculated giving pro forma
effect to such incurrence, redemption, retirement or extinguishment of
Indebtedness, or such issuance or redemption of Disqualified Stock or Preferred
Stock, as if the same had occurred at the beginning of the applicable
four-quarter period.


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


 


59

















 


(c)           For purposes of this
Section 1.09, whenever pro forma
effect is to be given to any Investment, Acquisition, disposition, merger,
amalgamation, consolidation, discontinued operation or operational change, the pro forma calculations shall be made in good
faith by a responsible financial or accounting officer of the Borrower.  Any such pro
forma calculation may include adjustments appropriate, in the reasonable
determination of the Borrower as set forth in an Officer’s Certificate, to
reflect (i) operating expense reductions and other operating improvements or
synergies reasonably expected to be realizable from any acquisition,
disposition, amalgamation, merger or operational change (including, to the
extent applicable, from the Transactions) and (ii) all adjustments of the
nature used in connection with the calculation of “EBITDA” as set forth in
footnote (3) to the “Summary Historical and Pro
Forma Financial Data” under “Offering Circular Summary” in the offering
circular for the New Senior Notes to the extent such adjustments, without
duplication, continue to be applicable to such four-quarter period; provided
that such operating expense reductions and other operating improvements or
synergies are reasonably identifiable and factually supportable and otherwise
comply with the limitations set forth in the definition of “EBITDA”.


Section 1.10.  Accounting Terms.  (a) 
Generally.  All accounting terms
not specifically or completely defined herein shall be construed in conformity
with, and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in preparing
the audited financial statements described in Section 3.05, except as
otherwise specifically prescribed herein. 
All amounts used for purposes of financial calculations required to be
made shall be without duplication.


(b)           Issues Related to GAAP.  If at any time any change in GAAP would
affect the computation of any financial ratio or requirement set forth in any
Loan Document, and either the Borrower or the Required Lenders shall so
request, the Administrative Agent, the Lenders and the Borrower shall negotiate
in good faith to amend such ratio or requirement to preserve the original
intent thereof in light of such change in GAAP (subject to the approval of the
Required Lenders); provided that, until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) the Borrower shall provide to the Administrative Agent
and the Lenders as reasonably requested hereunder a reconciliation between
calculations of such ratio or requirement made before and after giving effect
to such change in GAAP.


Section 1.11.  Certifications.  All certifications to be made hereunder by an
officer or representative of a Loan Party shall be made by such person in his
or her capacity solely as an officer or a representative of such Loan Party, on
such Loan Party’s behalf and not in such Person’s individual capacity.


 


60

















 


ARTICLE II


 


The Credits


Section 2.01.  Commitments.  Subject to the terms and conditions herein
set forth, each Lender agrees, severally and not jointly, (a) to make a Term
Loan to the Borrower on the Closing Date in a principal amount not to exceed
its Term Loan Commitment and (b) to make Revolving Loans to the Borrower, at
any time and from time to time on and after the Closing Date, and until the earlier
of the Revolving Credit Maturity Date and the termination of the Revolving
Credit Commitment of such Lender in accordance with the terms hereof, in an
aggregate principal amount at any time outstanding that will not result in such
Lender’s Revolving Credit Exposure exceeding such Lender’s Revolving Credit
Commitment.  Within the limits set forth
in clause (b) of the preceding sentence and subject to the terms,
conditions and limitations set forth herein, the Borrower may borrow, pay or
prepay and reborrow Revolving Loans. 
Amounts paid or prepaid in respect of Term Loans may not be reborrowed.


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


(b)           Subject to Sections 2.02(e), 2.08
and 2.15, all Loans (other than Swingline Loans) shall be made as ABR
Loans or Eurodollar Loans; provided, however, that all such Loans
initially shall be made as ABR Loans, unless, subject to Section 2.15,
the Borrowing Request specifies that all or a portion thereof shall be
Eurodollar Loans and all Swingline Loans shall be dollar denominated and shall
be made as ABR Loans.  Each Lender may at
its option make any Eurodollar Loan by causing any domestic or foreign branch
or Affiliate of such Lender to make such Loan; provided that any
exercise of such option shall not affect the obligation of the Borrower to
repay such Loan in accordance with the terms of this Agreement.  Borrowings of more than one Type may be
outstanding at the same time; provided, however, that the
Borrower shall not be entitled to request any Borrowing that, if made, would
result in more than 15 Eurodollar Borrowings outstanding hereunder at any time.


(c)           Except with respect to Loans deemed
made pursuant to Section 2.02(f) and subject to Sections 2.03 and
2.22, each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds to such
account in New York City as the Administrative Agent may designate not later
than 11:00 a.m. and the Administrative Agent shall promptly wire transfer the
amounts so received to an account designated by the Borrower in the applicable
Borrowing Request or, if a Borrowing shall not occur on such date because any
condition precedent herein specified shall not have been met or waived, return
the amounts so received to the respective Lenders.


(d)           Unless the Administrative Agent shall
have received notice from a Lender prior to the date of any Borrowing that such
Lender will not make available to the Administrative Agent such Lender’s
portion of such Borrowing, the Administrative Agent may assume that such Lender
has made such portion available to the Administrative Agent on the date of such


 


61

















 


Borrowing in accordance with paragraph  (c) above and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount.  If the Administrative Agent shall have so
made funds available then, to the extent that such Lender shall not have made such
portion available to the Administrative Agent, such Lender and the Borrower
agree to repay to the Administrative Agent forthwith on written demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower to but excluding the date such
amount is repaid to the Administrative Agent at (i) in the case of the
Borrower, a rate per annum equal to the interest rate applicable to the Loans
comprising such Borrowing at the time and (ii) in the case of such Lender, for
the first such day, the Federal Funds Effective Rate, and for each day
thereafter, the Alternate Base Rate plus the Applicable Percentage for
ABR Revolving Loans.  If such Lender
shall repay to the Administrative Agent such corresponding amount, such amount
shall constitute such Lender’s Loan as part of such Borrowing for purposes of
this Agreement and (x) the relevant Borrower’s obligation to repay the
Administrative Agent such corresponding amount pursuant to this Section
2.02(d) shall cease and (y) if the Borrower pays such amount to the
Administrative Agent, the amount so paid shall constitute a repayment of such
Borrowing by such amount.


 


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


(f)            If the relevant Issuing Bank shall
not have received from the Borrower the payment required to be made by Section
2.23(e) within the time specified in such Section, such Issuing Bank will
promptly notify the Administrative Agent of the L/C Disbursement and the
Administrative Agent will promptly notify each Revolving Credit Lender of such
L/C Disbursement and its Pro Rata
Percentage thereof.  Each Revolving
Credit Lender shall pay by wire transfer of immediately available funds in
dollars to the Administrative Agent not later than 2:00 p.m. on such date (or,
if such Revolving Credit Lender shall have received such notice later than
12:00 (noon) on any day, not later than 10:00 a.m. on the immediately following
Business Day), an amount equal to such Lender’s Pro
Rata Percentage of such L/C Disbursement as determined above (it being
understood that such amount shall be deemed to constitute an ABR Revolving Loan
of such Lender and such payment shall be deemed to have reduced the L/C
Exposure), and the Administrative Agent will promptly pay to the relevant
Issuing Bank amounts so received by it from the Revolving Credit Lenders.  The Administrative Agent will promptly pay to
the Issuing Bank any amounts received by it from the Borrower pursuant to Section 2.23(e)
prior to the time that any Revolving Credit Lender makes any payment pursuant
to this paragraph (f); any such amounts received by the Administrative Agent
thereafter will be promptly remitted by the Administrative Agent to the
Revolving Credit Lenders that shall have made such payments and to such Issuing
Bank, as their interests may appear.  If
any Revolving Credit Lender shall not have made its Pro Rata Percentage of such L/C Disbursement available to the
Administrative Agent as provided above, such Lender and the Borrower agree to
pay interest on such amount, for each day from and including the date such
amount is required to be paid in accordance with this paragraph to but
excluding the date such amount is paid, to the Administrative Agent for the
account of the relevant Issuing Bank at (i) in the case of the Borrower, a rate
per annum equal to the interest rate applicable to Revolving Loans pursuant to


 


62

















 


Section 2.06(a), and (ii) in
the case of such Lender, for the first such day, the Federal Funds Effective
Rate, and for each day thereafter, the interest rate applicable to ABR
Revolving Loans.


Section 2.03.  Borrowing Procedure.  In order to request a Borrowing (other than a
Swingline Loan or a deemed Borrowing pursuant to Section 2.02(f), as to
which this Section 2.03 shall not apply), the Borrower shall notify the
Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Borrowing not later than 12:30 p.m. three Business Days before a
proposed Borrowing and (b) in the case of an ABR Borrowing, not later than
12:30 p.m. one Business Day before a proposed Borrowing.  Subject to Section 2.14, each
such telephonic request shall be irrevocable, shall be confirmed promptly by
hand delivery or fax to the Administrative Agent of a written Borrowing Request
and shall specify the following information: 
(i) whether the Borrowing then being requested is to be a Term Loan
Borrowing or a Revolving Credit Borrowing, and whether such Borrowing is to be
a Eurodollar Borrowing or an ABR Borrowing; (ii) the date of such Borrowing
(which shall be a Business Day); (iii) the number and location of the account
to which funds are to be disbursed; (iv) the amount of such Borrowing; and (v)
if such Borrowing is to be a Eurodollar Borrowing, the initial Interest Period
or Interest Periods with respect thereto and (vi) the Revolving Credit Exposure
(after giving effect to the proposed Borrowing); provided, however,
that notwithstanding any contrary specification in any Borrowing Request, each
requested Borrowing shall comply with the requirements set forth in Section
2.02.  If no Interest Period with
respect to any Eurodollar Borrowing is specified in any such notice, then the
Borrower shall be deemed to have selected an Interest Period of one month’s
duration.  The Administrative Agent shall
promptly advise the applicable Lenders of any notice given pursuant to this Section
2.03 (and the contents thereof), and of each Lender’s portion of the
requested Borrowing.


Section 2.04.  Evidence of Debt; Repayment of Loans.  (a) 
The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender, (x) the principal
amount of each Term Loan of such Lender as provided in Section 2.11 and
(y) on the Revolving Credit Maturity Date, the then unpaid principal
amount of each Revolving Loan of such Lender made to the Borrower.  The Borrower hereby promises to pay to the
Swingline Lender on the Revolving Credit Maturity Date the then unpaid
principal amount of each Swingline Loan made hereunder.


(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 from
time to time, including the amounts of principal and interest payable and paid
to such Lender from time to time under this Agreement.


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


(d)           The entries made in the accounts
maintained pursuant to paragraphs  (b) and (c) above
shall be prima facie evidence of the
existence and amounts of the obligations


 


63

















 


therein recorded; provided,
however, 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
obligations of the Borrower to repay the Loans in accordance with the terms of this
Agreement.  The Borrower shall have right
to review the entries made in the accounts maintained pursuant to clause
(c) from time to time upon reasonable prior notice during normal
business hours.


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


Section 2.05.  Fees. 
(a)  The Borrower agrees to pay to
each Revolving Credit Lender, through the Administrative Agent, on the last
Business Day of March, June, September and December of each year, commencing
December 31, 2007, and on each date on which the Revolving Credit Commitment of
such Lender shall expire or be terminated as provided herein, a commitment fee
(a “Commitment Fee”) equal to 0.375% per annum on the daily unused
amount of the Revolving Credit Commitment of such Lender during the preceding
quarter (or other period commencing with the Closing Date or ending with the
Revolving Credit Maturity Date or the date on which the Revolving Credit
Commitment of such Lender shall be terminated); provided any Commitment Fee
accrued with respect to the Revolving Credit Commitment of a Defaulting Lender
during the period prior to the time such Lender became a Defaulting Lender and
unpaid at such time shall not be payable by the Borrower so long as such Lender
shall be a Defaulting Lender, except to the extent that such Commitment Fee
shall otherwise have been due and payable by the Borrower prior to such time;
and provided, further, that no Commitment Fee shall accrue on the
Revolving Credit Commitment of a Defaulting Lender so long as such Lender shall
be a Defaulting Lender.


(b)           The Borrower agrees to pay to the
Administrative Agent, for its own account, the administrative fees set forth in
the Fee Letter at the times and in the amounts specified therein (the “Administration
Fee”).


(c)           The Borrower agrees to pay (i) to
each Revolving Credit Lender, through the Administrative Agent, on the last
Business Day of March, June, September and December of each year, commencing
December 31, 2007, and on the date on which the Revolving Credit Commitment of
such Lender shall be terminated as provided herein, a fee (an “L/C
Participation Fee”) calculated on such Lender’s Pro Rata Percentage of the daily aggregate undrawn amounts of all
outstanding Letters of Credit) during the preceding quarter (or shorter period
commencing with the Closing Date or ending with the Revolving Credit Maturity
Date or the date on which all Letters of Credit have been canceled or have
expired and the Revolving Credit Commitments of all Lenders shall have been
terminated) at a rate per annum equal to the Applicable Percentage from time to
time used to determine the interest rate on Eurodollar Revolving Credit
Borrowings minus the Issuing Bank Fees referred to in clause (ii)(A)
below, and (ii) to the Issuing Bank


 


64

















 


(A) with respect to
each outstanding Letter of Credit a fronting fee that shall accrue at a rate of
0.125% per annum (or such lesser rate as shall be separately agreed upon
between the Borrower and the Issuing Bank) on the undrawn amount of such Letter
of Credit, payable quarterly in arrears on the last day of March, June,
September and December of each year, commencing December 31, 2007, and upon
expiration of the applicable Letter of Credit or any earlier termination of the
Revolving Credit Commitment and (B) within 30 days after written demand (including
documentation reasonably supporting such request) therefor the Issuing Bank’s
standard fees as agreed to by the Issuing Bank and the Borrower with respect to
the issuance, amendment, renewal or extension of any Letter of Credit issued by
such Issuing Bank or processing of drawings thereunder (the fees in this clause
(ii) being collectively the “Issuing Bank Fees”).


(d)           At the time of the effectiveness of
any Repricing Transaction that is consummated prior to the first anniversary of
the Closing Date, the Borrower agrees to pay to the Administrative Agent, for
the ratable account of each Lender with outstanding Term Loans, a fee in an
amount equal to 1.0% of (x) in the case of a Repricing Transaction of the type
described in clause  (1) of the definition thereof, the aggregate
principal amount of all Term Loans prepaid (or converted) in connection with
such Repricing Transaction and (y) in the case of a Repricing Transaction
described in clause  (2) of the definition thereof, the aggregate
principal amount of all Term Loans repaid pursuant to Section 2.21(a)(v)
in connection with such Repricing Transaction. 
Such fees shall be earned, due and payable upon the date of the
effectiveness of such Repricing Transaction.


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


Section 2.06.  Interest on Loans.  (a) 
Subject to the provisions of Section 2.07, the Loans comprising
each ABR Borrowing, including each Swingline Loan, shall bear interest at a
rate per annum equal to the Alternate Base Rate plus the Applicable Percentage
in effect from time to time.


(b)           Subject to the provisions of Section
2.07, Loans comprising a Eurodollar Borrowing shall bear interest at a rate
per annum equal to the Adjusted LIBO Rate for the Interest Period in effect for
such Borrowing plus the Applicable Percentage in effect from time to
time.


(c)           Interest, including interest payable
pursuant to Section 2.07, shall be computed on the basis of the actual
number of days elapsed over a year of 360 days (other than computations of
interest for ABR Loans which shall be made by the Administrative Agent on the
basis of the actual number of days elapsed over a year of 365 or 366 day, as
applicable) and shall be calculated from and including the date of the relevant
Borrowing to, but excluding, the date of repayment thereof.  Interest on each Loan shall be payable on the
Interest Payment Dates applicable to such Loan, except as otherwise provided in
this Agreement.  The applicable Alternate
Base Rate or Adjusted LIBO Rate for each Interest Period or day within an
Interest


 


65

















 


Period, as the case may be,
shall be determined by the Administrative Agent, and such determination shall
be conclusive absent manifest error.


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


Section 2.08.  Alternate Rate of Interest.  In the event, and on each occasion, that (i)
the Administrative Agent shall have reasonably determined that deposits in the
principal amounts and denominations of the Loans comprising such Borrowing are
not generally available in the London interbank market, or that the rates at
which such deposits are being offered in the London interbank market will not
adequately and fairly reflect the cost to any participating Lender of making or
maintaining its Eurodollar Loan during such Interest Period, or that reasonable
means do not exist for ascertaining the Adjusted LIBO Rate for such Interest
Period or (ii) the Required Lenders of any Class of Loans notify the
Administrative Agent that the Adjusted LIBO Rate for any Interest Period will
not adequately reflect the cost to the Lenders in such Class of making or
maintaining such Loans for such Interest Period, the Administrative Agent
shall, as soon as practicable thereafter, give written or fax notice of such
determination to the Borrower and the Lenders. 
In the event of any such determination, until the Administrative Agent
shall have advised the Borrower and the participating Lenders that the
circumstances giving rise to such notice no longer exist (which the Administrative
Agent agrees to give promptly after such circumstances no longer exist), each
affected Eurodollar Loan shall automatically, on the last day of the current
Interest Period for such Loan, convert into a ABR Loan and the obligations of
the Lenders to make Adjusted LIBO Rate Loans or to convert Alternate Base Rate
Loans into Adjusted LIBO Rate Loans shall be suspended until the Administrative
Agent shall notify the Borrower that the Required Lenders of such affected
Class of Loans have determined that the circumstances causing such suspension
no longer exist.


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


Section 2.09.  Termination and Reduction of Commitments.  (a) 
The Term Loan Commitments shall automatically terminate upon the making
of the Term Loans on the Closing Date. 
The Revolving Credit Commitments and the Swingline Commitment shall
automatically terminate on the Revolving Credit Maturity Date.  The L/C Commitment shall automatically
terminate on the earlier to occur of (i) the termination of the Revolving
Credit Commitments and (ii) the Revolving Credit Maturity Date, unless
otherwise agreed by each Issuing Bank and the Borrower.


(b)           Upon at least three Business Days’
prior written or fax notice to the Administrative Agent, the Borrower may at
any time in whole permanently terminate, or from time to time in part
permanently reduce, the Revolving Credit Commitments or the Swingline


 


66

















 


Commitment; provided,
however, that (i) each partial reduction of the Revolving Credit
Commitments shall be in an aggregate amount of not less than $5,000,000 and
integral multiples of $1,000,000 thereafter and (ii) the Total Revolving Credit
Commitment shall not be reduced to an amount that is less than the Aggregate
Revolving Credit Exposure then in effect (after giving effect to any repayment
or prepayment effected simultaneously therewith).  Any notice given by the Borrower pursuant to
this Section 2.09(b) shall be irrevocable; provided that any such
notice delivered by the Borrower may state that such notice is conditioned upon
the effectiveness of other financing arrangements, 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.


(c)           Each reduction in the Revolving
Credit Commitments hereunder shall be made ratably among the Lenders in
accordance with their respective applicable Commitments; provided that
none of the Swingline Commitment or the L/C Commitment shall be reduced unless
the Revolving Commitment is reduced to an amount less than the Swingline
Commitment or the Letter of Credit Commitment, as applicable, then in effect (and
then only to the extent of such deficit except to the extent the Borrower
expressly specifies such commitment reduction). 
The Borrower shall pay to the Administrative Agent for the account of
the Revolving Credit Lenders, on the date of each termination or reduction of
the Revolving Credit Commitments, the Commitment Fees on the amount of the
Revolving Credit Commitments so terminated or reduced accrued to but excluding
the date of such termination or reduction.


Section 2.10.  Conversion and Continuation of Borrowings.  The Borrower shall have the right at any time
upon prior written or fax notice (or telephone notice promptly confirmed by
written or fax notice)  to the
Administrative Agent (i) not later than 12:30 p.m., one Business Day prior to
conversion, to convert any dollar denominated Eurodollar Borrowing into an ABR
Borrowing and (ii) not later than 12:30 p.m., three Business Days prior to
conversion or continuation, to convert any ABR Borrowing into a Eurodollar
Borrowing, to continue any Eurodollar Borrowing as a Eurodollar Borrowing for
an additional Interest Period, subject in each case to the following:


(a)           each conversion or
continuation shall be made pro rata among
the Lenders in accordance with the respective principal amounts of the Loans comprising
the converted or continued Borrowing;


(b)           if less than all of
the outstanding principal amount of any Borrowing shall be converted or
continued, then each resulting Borrowing shall satisfy the limitations
specified in Sections 2.02(a) and 2.02(b) regarding the principal
amount and maximum number of Borrowings of the relevant Type;


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


 


67

















 


(d)           if any Eurodollar
Borrowing is converted at a time other than the end of the Interest Period
applicable thereto, the Borrower shall pay, promptly upon written demand, any
amounts due to the Lenders pursuant to Section 2.16.


Each notice pursuant to
this Section 2.10 shall be irrevocable (subject to Sections 2.08
and 2.15) and shall refer to this Agreement and specify (i) the identity
and amount of the Borrowing that the Borrower requests be converted or
continued, (ii) whether such Borrowing is to be converted to or continued as a
Eurodollar Borrowing or an Alternate Base Rate Borrowing, (iii) if such notice
requests a conversion, the date of such conversion (which shall be a Business
Day) and (iv) if such Borrowing is to be converted to or continued as a
Eurodollar Borrowing, the Interest Period with respect thereto.  If no Interest Period is specified in any
such notice with respect to any conversion to or continuation as a Eurodollar
Borrowing, the Borrower shall be deemed to have selected an Interest Period of
one month’s duration.  The Administrative
Agent shall advise the Lenders of any notice given pursuant to this Section
2.10 and of each Lender’s portion of any converted or continued Borrowing.  If the Borrower shall not have given notice in
accordance with this Section 2.10 to continue any Borrowing into a
subsequent Interest Period (and shall not otherwise have given notice in
accordance with this Section 2.10 to convert such Borrowing), such Borrowing
shall, at the end of the Interest Period applicable thereto (unless repaid
pursuant to the terms hereof), automatically be converted into an Alternate
Base Rate Borrowing.


Section 2.11.  Repayment of Term Borrowings.  (a) 
The Borrower shall repay to the Administrative Agent in dollars for the
ratable account of the Term Loan Lenders on the dates and in the amounts set
forth below:




	
  Date

  	
   

  	
  Amount

  
	
  June 30, 2008

  	
   

  	
  $

  	
  5,787,500

  
	
  September 30, 2008

  	
   

  	
  $

  	
  5,787,500

  
	
  December 31, 2008

  	
   

  	
  $

  	
  5,787,500

  
	
  March 30, 2009

  	
   

  	
  $

  	
  5,787,500

  
	
  June 30, 2009

  	
   

  	
  $

  	
  5,787,500

  
	
  September 30, 2009

  	
   

  	
  $

  	
  5,787,500

  
	
  December 31, 2009

  	
   

  	
  $

  	
  5,787,500

  
	
  March 30, 2010

  	
   

  	
  $

  	
  5,787,500

  
	
  June 30, 2010

  	
   

  	
  $

  	
  5,787,500

  
	
  September 30, 2010

  	
   

  	
  $

  	
  5,787,500

  
	
  December 31, 2010

  	
   

  	
  $

  	
  5,787,500

  
	
  March 30, 2011

  	
   

  	
  $

  	
  5,787,500

  
	
  June 30, 2011

  	
   

  	
  $

  	
  5,787,500

  
	
  September 30, 2011

  	
   

  	
  $

  	
  5,787,500

  
	
  December 31, 2011

  	
   

  	
  $

  	
  5,787,500

  
	
  March 30, 2012

  	
   

  	
  $

  	
  5,787,500

  
	
  June 30, 2012

  	
   

  	
  $

  	
  5,787,500

  
	
  September 30, 2012

  	
   

  	
  $

  	
  5,787,500

  
	
  December 31, 2012

  	
   

  	
  $

  	
  5,787,500

  
	
  March 30, 2013

  	
   

  	
  $

  	
  5,787,500

  
	
  June 30, 2013

  	
   

  	
  $

  	
  5,787,500

  
	
  September 30, 2013

  	
   

  	
  $

  	
  5,787,500

  
	
  December 31, 2013

  	
   

  	
  $

  	
  5,787,500

  
	
  March 30, 2014

  	
   

  	
  $

  	
  5,787,500

  
	
  June 30, 2014

  	
   

  	
  $

  	
  5,787,500

  
	
  September 30, 2014

  	
   

  	
  $

  	
  5,787,500

  
	
  Term Loan Maturity Date

  	
   

  	
  $

  	
  2,164,525,000

  






 


 


68

















 


(b)           In addition to any other mandatory
repayments pursuant to this Section 2.11, the Borrower shall be
required to make, with respect to each Incremental Term Loan Facility, to the
extent then outstanding, scheduled amortized repayments of Incremental Term
Loans on the dates and in the principal amounts set forth in the respective
Incremental Amendment (each such repayment, as the same may be reduced as
provided in Sections 2.12(b) or 2.13(e), “Scheduled Repayments”);
provided that, if any Incremental Term Loans are incurred which will be
added to (and form part of) an existing tranche of Incremental Term Loans, then
each Scheduled Repayment of such tranche to be made after such increase becomes
effective shall be increased by an amount equal to (i) the aggregate principal
amount of the increase in the Incremental Term Loans of such tranche pursuant
to Section 2.24  multiplied by (ii)
an amount equal to (x) such Scheduled Repayment divided
by (y) the aggregate outstanding principal amount of the Incremental Term
Loans of such tranche, in each case, immediately prior to giving effect to the
increase in Incremental Term Loans of such tranche pursuant to Section 2.24.


(c)           To the extent not previously paid,
all Term Loans shall be due and payable on the Term Loan Maturity Date,
together with accrued and unpaid interest on the principal amount to be paid to
but excluding the date of payment.


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


Section 2.12.  Optional Prepayment.  (a) 
The Borrower shall have the right at any time and from time to time to
prepay any Borrowing, in whole or in part upon prior written or fax notice by
the Borrower (or telephone notice promptly confirmed by written or fax notice)
to the Administrative Agent, not later than 12:30 p.m., three Business Days
prior to such prepayment in the case of Eurodollar Loans and not later than
12:30 p.m., one Business Day prior to such prepayment in the case of ABR Loans;
provided, however, that each partial prepayment shall be in an
aggregate amount of not less than the Minimum Threshold.


(b)           Optional prepayments of Term Loans
shall be applied against the remaining scheduled installments of principal due
in respect of the Term Loans under Section 2.11(a) in the manner
specified by the Borrower or, if not so specified on or prior to the date of
such optional prepayment, in direct order of maturity.


(c)           Each notice of prepayment shall
specify the prepayment date and the principal amount of each Borrowing (or
portion thereof) to be prepaid, shall be irrevocable and shall commit the
Borrower to prepay such Borrowing by the amount stated therein on the date
stated therein; provided that if a notice of optional prepayment is
given in connection with a conditional notice of termination of the Commitments
as contemplated by Section 2.09, then such notice of prepayment may be
revoked if such notice of termination is revoked in accordance


 


69

















 


with Section 2.09.  All prepayments under this Section 2.12
shall be subject to Section 2.16 and Section 2.05(d) but
otherwise without premium or penalty. 
All Eurodollar Loan prepayments under this Section 2.12 shall be
accompanied by accrued and unpaid interest on the principal amount to be
prepaid to but excluding the date of payment.


Section 2.13.  Mandatory Prepayments.  (a) 
The Borrower shall, on the date of termination of all Revolving Credit
Commitments, repay or prepay all of its outstanding Revolving Credit Borrowings
and all outstanding Swingline Loans and replace or cause to be canceled (or
provide an L/C Backstop or make other arrangements reasonably satisfactory to
the relevant Issuing Bank with respect to) all of its outstanding Letters of
Credit.  If, after giving effect to any
partial reduction of the Revolving Credit Commitments, the Aggregate Revolving
Credit Exposure would exceed the Total Revolving Credit Commitments, then the Borrower
shall, on the date of such reduction, repay or prepay Revolving Credit
Borrowings or Swingline Loans (or a combination thereof) and, after the
Revolving Credit Borrowings or Swingline Loans shall have been repaid or
prepaid in full, replace or cause to be canceled (or provide an L/C Backstop or
make other arrangements reasonably satisfactory to the relevant Issuing Bank
with respect to) Letters of Credit in an amount sufficient to eliminate such
excess.


(b)           Not later than the tenth Business Day
following the receipt by the Borrower or any of its Restricted Subsidiaries of
Net Cash Proceeds in respect of any Prepayment Asset Sale or Property Loss
Event, the Borrower shall apply an amount equal to 100% of the Net Cash
Proceeds received by the Borrower or any of its Restricted Subsidiaries with
respect thereto (subject to the restrictions set forth herein) to make an Offer
to Repay Term Loans in accordance with Section 2.13(g); provided,
however, that, if (A) prior to the date any such Offer to Repay Term
Loans is required to be made, the Borrower notifies the Administrative Agent of
its intent to reinvest such Net Cash Proceeds in assets of a kind then used or
usable in the business of the Borrower and its Restricted Subsidiaries
(including any Related Business Assets) and (B) no Event of Default under clause
(b), (c), (g) or (h) of Section 7.01 (each,
a “Specified Default”) shall have occurred and shall be continuing at
the time of such notice or at the time of such proposed reinvestment (unless,
in the case of such Specified Default, such reinvestment is made pursuant to a
binding commitment entered into at a time when no Specified Default was
continuing), then the Borrower shall not be required to make an Offer to Repay
Term Loans hereunder in respect of such Net Cash Proceeds to the extent that
such Net Cash Proceeds are so reinvested within 365 days after the date of
receipt of such Net Cash Proceeds (or, if within such 365 day period, the
Borrower or any of its Restricted Subsidiaries enters into a binding commitment
to so reinvest in such Net Cash Proceeds, and such Net Cash Proceeds are so
reinvested within 180 days after such binding commitment is so entered into), provided,
however, that (I) if any Net Cash Proceeds are not reinvested or applied
as a repayment on or prior to the last day of the applicable application
period, such Net Cash Proceeds shall be applied within 10 Business Days to make
an Offer to Repay Term Loans as set forth above (without regard to the
immediately preceding proviso) and (II) if, as a result of any Prepayment Asset
Sale or Property Loss Event, the Borrower would be required to make an “offer
to purchase” the New Senior Notes pursuant to the terms of the New Senior Notes
Documentation or any other Material Indebtedness, in any such case prior to the
expiry of the foregoing reinvestment or repayment periods, the Borrower shall
apply the relevant percentage of such Net Cash Proceeds as required above by
this paragraph (b) to make an Offer to Repay Term Loans in


 


70

















 


accordance with Section 2.13(g)
on the day immediately preceding the date of such required “offer to purchase”
(without regard to the immediately preceding proviso).


(c)           No later than the tenth Business Day
following the delivery of the Section 5.04 Financials under Section 5.04(a)
(commencing with the fiscal year ended December 31, 2008), the Borrower shall
prepay outstanding Term Loans in accordance with Section 2.13(e) in an
aggregate principal amount equal to the excess, if any, of (i) the applicable
ECF Percentage of Excess Cash Flow for the fiscal year then ended over (ii) the
aggregate principal amount of Term Loans and Revolving Loans (to the extent
accompanied by a permanent reduction of the Revolving Credit Commitments)
prepaid pursuant to Section 2.12 during such fiscal year or after the
end of such fiscal year and on or prior to the date such payment is required to
be made (without duplication), in each case to the extent such prepayments are
not funded with the proceeds of long-term Indebtedness (other than revolving
Indebtedness).


(d)           In the event that the Borrower or any
of its Restricted Subsidiaries shall receive Net Cash Proceeds from the
issuance or incurrence of Indebtedness (other than any cash proceeds from the
issuance or incurrence of Indebtedness permitted pursuant to Section 6.01),
the Borrower shall no later than the fifth Business Day next following the
receipt of such Net Cash Proceeds, apply an amount equal to 100% of such Net
Cash Proceeds to prepay outstanding Term Loans in accordance with Section
2.13(e).


(e)           Prior to the repayment in full of all
Term Loans and all Obligations (other than contingent obligations) relating
thereto, all other prepayments required by this Section 2.13 shall be
applied pro rata to the repayment of the Term
Loans under each Term Loan Facility until paid in full (based on the
outstanding amount of Term Loans under each Term Loan Facility on the date of
prepayment and applied against the remaining scheduled installments of
principal due in respect of the Term Loans in the direct order of maturity); provided
that to the extent an Event of Default then exists, such prepayment shall
instead be applied in accordance with Section 2.17(b).


(f)            Notwithstanding anything to the
contrary contained in this Section 2.13 or elsewhere in this Agreement
including without limitation in Section 9.08, the Borrower shall have
the option in its sole discretion to give the Lenders with outstanding Term
Loans the option to waive their pro rata
share of a mandatory prepayment of Term Loans which is to be made pursuant to (c)
or (d) (each such repayment a “Waivable Mandatory Prepayment”)
upon the terms and provisions set forth in this Section 2.13(f).  If the Borrower elects to exercise the option
referred to in the immediately preceding sentence the Borrower shall give to
the Administrative Agent written notice of its intention to give the Lenders
the right to waive a Waivable Mandatory Prepayment including in such notice the
aggregate amount of such proposed prepayment not later than 12:30 p.m. three
Business Days prior to the date of the proposed prepayment which notice the
Administrative Agent shall promptly forward to all Term Loan Lenders indicating
in such notice the amount of such prepayment to be applied to each such Lender’s
outstanding Term Loans.  The Borrower’s
offer to permit the Term Loan Lenders to waive any such Waivable Mandatory
Prepayment may apply to all or part of such prepayment, provided that
any offer to waive part of such prepayment must be made ratably to the Term
Loan Lenders (based on the amount of Term Loans under each Term Loan Facility
on the date of prepayment).  In the event
that any such Term Loan Lender desires to waive its pro rata share of


 


71

















 


 


such Lender’s right to
receive any such Waivable Mandatory Prepayment in whole or in part such Lender
shall so advise the Administrative Agent no later than 4:00 p.m. on the date
which is two Business Days after the date of such notice from the
Administrative Agent and the Administrative Agent shall promptly thereafter
notify the Borrower thereof which notice shall also include the amount such
Lender desires to receive in respect of such prepayment.  If any Term Loan Lender does not reply to the
Administrative Agent within such two Business Day period such Lender will be
deemed not to have waived any part of such prepayment.  If any Term Loan Lender does not specify an
amount it wishes to receive such Lender will be deemed to have accepted 100% of
its share of such prepayment.  In the
event that any such Lender waives all or part of its share of any such Waivable
Mandatory Prepayment the Borrower shall retain 100% of the amount so waived by
such Lender.  Notwithstanding anything to
the contrary contained above if one or more Term Loan Lenders waives its right
to receive all or any part of any Waivable Mandatory Prepayment but less than
all the Lenders with outstanding Term Loans waive in full their right to
receive 100% of the total Waivable Mandatory Prepayment otherwise required with
respect to the Term Loans, then the amount actually applied to the repayment of
Term Loans of Lenders which have waived all or any part of their right to
receive 100% of such prepayment shall be applied to each then outstanding Borrowing
of Term Loans on a pro rata basis so that
each Lender with outstanding Term Loans shall after giving effect to the
application of the respective repayment maintain the same percentage as
determined for such Lender but not the same percentage that the other Term Loan
Lenders hold and not the same percentage held by such Lender prior to
prepayment of each Borrowing of Term Loans which remains outstanding after
giving effect to such application. 
Notwithstanding anything to the contrary Term Loan Lenders shall not
have the right to waive mandatory prepayments under this Section 2.13
except as set forth in this Section 2.13(f).


(g)           Each amount required to be used to
make an offer to repay Term Loans pursuant to Section 2.13(b) in
accordance with this Section 2.13(g) (with any such offer to repay being
herein called an “Offer to Repay Term Loans”) shall be subject to the
following requirements: (A) the Borrower shall deliver a notice (each, an “Offer
to Repay Notice”) to the Administrative Agent (for distribution to the
Lenders) irrevocably and unconditionally offering to repay on a pro rata basis to each of the Term Loans under
each Term Loan Facility with the respective proceeds of the event giving rise
to such Offer to Repay Term Loans pursuant to Sections 2.13(b), as the
case may be, which notice shall set forth (i) the date of the proposed
consummation of such Offer to Repay Term Loans (which shall be no later than
the fifth Business Day following delivery of the respective Offer to Repay
Notice), (ii) the last Business Day on which such Offer to Repay Term Loans may
be accepted or declined (which shall in no event be later than the date
occurring three Business Days after the date of delivery of such Offer to Repay
Notice) and (iii) the aggregate principal amount of the Term Loans subject to
such Offer to Repay Term Loans and (B) unless the Required Lenders shall have
otherwise instructed the Administrative Agent on or prior to the last Business
Day on which such Offer to Repay Term Loans may be accepted or declined, the
Borrower shall repay Term Loans of those Lenders that have accepted the
Borrower’s respective Offer to Repay Term Loans, with such repayment of Term
Loans to be applied in accordance with the requirements of Section 2.13(f).  Notwithstanding the foregoing provisions of
this clause (g) or any other clause of this Section 2.13,
the Borrower and its Subsidiaries, the Administrative Agent and the Lenders
hereby agree that nothing in this Agreement shall be understood to mean or
suggest that the


 


72

















 


Term Loans subject to an
Offer to Repay Term Loans constitute “securities” for purposes of either the
Securities Act or the Securities Exchange Act.


Section 2.14.  Reserve Requirements; Change in Circumstances.  (a) 
Notwithstanding any other provision of this Agreement, if any Change in
Law shall 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 or any Issuing Bank (except any such reserve
requirement which is reflected in the Adjusted LIBO Rate) or shall impose on
such Lender or such 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 (i) to increase the cost to such Lender or such Issuing Bank
of making or maintaining any Eurodollar Loan or (ii) to increase the cost to
any Lender of issuing or maintaining any Letter of Credit or purchasing or
maintaining a participation therein or to reduce the amount of any sum received
or receivable by such Lender or such Issuing Bank hereunder (whether of
principal, interest or otherwise), in each case by an amount deemed by such
Lender or such Issuing Bank to be material, then the Borrower will pay to such
Lender or such Issuing Bank, as the case may be, such additional amount or
amounts as will compensate such Lender or such Issuing Bank, as the case may
be, for such additional costs incurred or reduction suffered.


(b)           If any Lender or any Issuing Bank
shall have determined that any Change in Law regarding capital adequacy has or
would have the effect of reducing the rate of return on such Lender’s or such
Issuing Bank’s capital or on the capital of such Lender’s or such Issuing Bank’s
holding company, if any, as a consequence of this Agreement or the Loans made
or participations in Loans purchased by such Lender pursuant hereto or the
Letters of Credit issued by such Issuing Bank pursuant hereto to a level below
that which such Lender or such Issuing Bank or such Lender’s or such Issuing
Bank’s holding company could have achieved but for such Change in Law (taking
into consideration such Lender’s or such Issuing Bank’s policies and the
policies of such Lender’s or such Issuing Bank’s holding company with respect
to capital adequacy), in each case by an amount deemed by such Lender or such
Issuing Bank to be material, then the Borrower shall pay to such Lender or such
Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or such Issuing Bank or such Lender’s or such Issuing
Bank’s holding company for any such reduction suffered.


(c)           A certificate of a Lender or an
Issuing Bank setting forth the amount or amounts necessary to compensate such
Lender or such Issuing Bank or its holding company, as applicable, as specified
in paragraph (a) or (b) above shall be delivered to the Borrower,
shall describe the applicable Change in Law, the resulting costs incurred or
reduction suffered (including a calculation thereof), certifying that such
Lender is generally charging such amounts to similarly situated borrowers and
shall be conclusive absent manifest error. 
The Borrower shall pay such Lender or such Issuing Bank, as applicable,
the amount shown as due on any such certificate delivered by it within 30 days
after its receipt of the same.


(d)           Failure or delay on the part of any
Lender or any Issuing Bank to demand compensation for any increased costs or
reduction in amounts received or receivable or reduction in return on capital
shall not constitute a waiver of such Lender’s or such Issuing Bank’s right to
demand such compensation; provided that the Borrower shall not be under
any obligation to


 


73

















 


compensate any Lender or any
Issuing Bank under paragraph (a) or (b) above with respect to
increased costs or reductions with respect to any period prior to the date that
is 180 days prior to such request; provided, further, that the
foregoing limitation shall not apply to any increased costs or reductions
arising out of the retroactive application of any Change in Law within such
180-day period.  The protection of this
Section shall be available to each Lender and the respective Issuing Bank
regardless of any possible contention of the invalidity or inapplicability of
the Change in Law that shall have occurred or been imposed; provided
that if, after the payment of any amounts by the Borrower under this Section,
any Change in Law in respect of which a payment was made is thereafter
determined to be invalid or inapplicable to the relevant Lender or Issuing
Bank, then such Lender or Issuing Bank shall, within 30 days after such
determination, repay any amounts paid to it by the Borrower hereunder in
respect of such Change in Law.


(e)           Notwithstanding anything in this Section
2.14 to the contrary, this Section 2.14 shall not apply to any
Change in Law with respect to Taxes, which shall be governed exclusively by Section
2.20.


Section 2.15.  Change in Legality.  (a) 
Notwithstanding any other provision of this Agreement, if any Change in
Law shall make it unlawful for any Lender to make or maintain any Eurodollar
Loan or to give effect to its obligations as contemplated hereby with respect
to any Eurodollar Loan, then, by written notice to the Borrower and to the
Administrative Agent:


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


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


In the event any Lender
shall exercise its rights under clause (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of,
or resulting from the conversion of, such Eurodollar Loans.


(b)           For purposes of this Section 2.15,
a notice to the Borrower by any Lender shall be effective as to each Eurodollar
Loan made by such Lender, if lawful, on the last day of the Interest Period
then applicable to such Eurodollar Loan; in all other cases such notice shall
be


 


74

















 


effective on the date of
receipt by the Borrower.  Such Lender
shall withdraw such notice promptly following any date on which it becomes
lawful for such Lender to make and maintain Eurodollar Loans or give effect to
its obligations as contemplated hereby with respect to any Eurodollar Loan.


Section 2.16.  Indemnity.  The Borrower shall indemnify each Lender
against any actual loss or reasonable out-of-pocket expense that such Lender
may sustain or incur as a consequence of (a) any event, other than a default by
such Lender in the performance of its obligations hereunder, which results in
(i) such Lender receiving or being deemed to receive any amount on account of
the principal of any Eurodollar Loan prior to the end of the Interest Period in
effect therefor, (ii) the conversion of any Eurodollar Loan to an ABR Loan or
the conversion of the Interest Period with respect to any Eurodollar Loan, in
each case other than on the last day of the Interest Period in effect therefor,
or (iii) any Eurodollar Loan to be made by such Lender (including any
Eurodollar Loan to be made pursuant to a conversion or continuation under Section
2.10) not being made after notice of such Loan shall have been given by the
Borrower hereunder other than by operation of Section 2.08 (any of the
events referred to in this clause (a) being called a “Breakage Event”) or
(b) any default in the making of any payment or prepayment required to be made
hereunder.  In the case of any Breakage
Event, such loss shall include an amount equal to the excess, as reasonably
determined by such Lender, of (i) its cost of obtaining funds for the
Eurodollar Loan that is the subject of such Breakage Event for the period from
the date of such Breakage Event to the last day of the Interest Period in
effect (or that would have been in effect) for such Loan over (ii) the amount
of interest likely to be realized by such Lender in redeploying the funds
released or not utilized by reason of such Breakage Event for such period
(exclusive of any loss of anticipated profits). 
A certificate of any Lender setting forth any amount or amounts which 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 and
such certificate shall set forth in reasonable detail the manner in which such
amount was determined and such amounts shall be due within 30 days after the
receipt of such notice.


Section 2.17.  Pro Rata
Treatment; Intercreditor Agreements. (a) 
Except as provided below in this Section 2.17 and as required
under Sections 2.13, 2.14, 2.15, 2.16, 2.20
or 2.21, each Borrowing, each payment or prepayment of principal of any
Borrowing, each payment of interest on the Loans, each payment of the
Commitment Fee and the L/C Participation Fee, each reduction of the Revolving
Credit Commitments and each conversion of any Borrowing to or continuation of
any Borrowing as a Borrowing of any Type shall be allocated pro rata among the Lenders in accordance with
their respective applicable Commitments (or, if such Commitments shall have
expired or been terminated, in accordance with the respective principal amounts
of their respective applicable outstanding Loans).  For purposes of determining the available
Revolving Credit Commitments of the Lenders at any time (but subject to the
last sentence of Section 2.05(a)), each outstanding Swingline Loan shall
be deemed to have utilized the Revolving Credit Commitments of the Lenders
(including those Lenders which shall not have made Swingline Loans) pro rata in accordance with such respective
Revolving Credit Commitments.  In
addition, in computing such Lender’s portion of any Borrowing to be made
hereunder, the Administrative Agent may, in its discretion, round each Lender’s
percentage of such Borrowing to the next higher or lower whole dollar amount.


 


75

















 


(b)           Notwithstanding anything to the
contrary contained in this Agreement, any payment or other distribution
(whether from proceeds of collateral or any other source, whether in the form
of cash, securities or otherwise, and whether made by any Loan Party or in
connection with any exercise of remedies by the Administrative Agent or any
Lender) made or applied in respect of any of the Obligations during the
existence of an Event of Default or during or in connection with Insolvency
Proceedings involving any Loan Party (or any plan of liquidation, distribution
or reorganization in connection therewith), shall be made or applied, as the
case may be, in the following order of priority (with higher priority
Obligations to be paid in full prior to any payment or other distribution in
respect of lower priority Obligations): 
(i) first, to payment of that portion of the Obligations constituting
fees, indemnities, expenses and other amounts, including attorney fees, payable
to the Collateral Agent and the Administrative Agent in their capacities as
such and the Issuing Banks in their capacity as such (ratably among the
Collateral Agent, the Administrative Agent and the Issuing Banks in proportion
to the respective amounts described in this clause first payable to them); (ii)
second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to
the Lenders hereunder, including attorney fees (ratably among such Lenders in
proportion to the respective amounts described in this clause second payable to
them); (iii) third, to payment of that portion of the Obligations
constituting accrued and unpaid interest (including any default interest) on
the Loans and L/C Exposure (ratably among such Lenders in proportion to the
respective amounts described in this clause third payable to them), including
interest accruing after the filing or commencement of Insolvency Proceedings in
respect of any Loan Party, whether or not any claim for post-filing or
post-petition interest is or would be allowed, allowable or otherwise
enforceable in any such Insolvency Proceedings; (iv) fourth, to the
Administrative Agent for the account of the Issuing Banks, to cash
collateralize any L/C Exposure then outstanding; (v) fifth, to payment of that
portion of the Obligations constituting unpaid principal of the Loans and L/C
Exposure (including any termination payments and any accrued and unpaid
interest thereon) (ratably among such Lenders in proportion to the respective
amounts described in this clause fifth held by them) and amounts constituting
Hedging Obligations; and (vi) last, in the case of proceeds of collateral, the
balance, if any, thereof, after all of the Obligations (including, without
limitation, all Obligations in respect of L/C Exposure but excluding any
contingent obligations) have been paid in full, to the Borrower or as otherwise
required by Applicable Law.  Each Lender
agrees that the provisions of this Section 2.17 (including, without
limitation, the priority of the Obligations as set forth herein) constitute an
intercreditor agreement among them for value received that is independent of
any value received from the Loan Parties, and that such agreement shall be
enforceable as against each Lender, including, without limitation, in any
Insolvency Proceedings in respect of any Loan Party, to the same extent that
such agreement is enforceable under applicable non-bankruptcy law (including,
without limitation, pursuant to Section 510(a) of the U.S. federal Bankruptcy
Code or any comparable provision of applicable insolvency law), and that, if
any Lender receives any payment or distribution in respect of any Obligation
(including, without limitation, in connection with any Insolvency Proceedings
or any plan of liquidation, distribution or reorganization therein) to which
such Lender is not entitled in accordance with the priorities set forth in this
Section 2.17, such amount shall be held in trust by such Lender for the
benefit of the Person or Persons entitled to such payment or distribution
hereunder, and promptly shall be turned over by such Lender to the
Administrative Agent for distribution to the Person or Persons entitled to such
payment or distribution in accordance with this Section 2.17.


 


76

















 


Section 2.18.  Sharing of Setoffs.  Each Lender agrees that if it shall, through
the exercise of a right of banker’s lien, setoff or counterclaim against the
Borrower or any other Loan Party, or pursuant to a secured claim under Section
506 of Title 11 of the United States Code or other security or interest arising
from, or in lieu of, such secured claim
received by such Lender under any applicable bankruptcy, insolvency or other
similar law or otherwise, or by any other means, obtain payment (voluntary or
involuntary) in respect of any Loan or L/C Disbursement as a result of which
the unpaid principal portion of its Loans and participations in L/C
Disbursements shall be proportionately less than the unpaid principal portion
of the Loans and participations in L/C Disbursements of any other Lender, it
shall be deemed simultaneously to have purchased from such other Lender at face
value, and shall promptly pay to such other Lender the purchase price for, a
participation in the Loans and L/C Exposure of such other Lender, so that the
aggregate unpaid principal amount of the Loans and L/C Exposure and
participations in Loans and L/C Exposure held by each Lender shall be in the
same proportion to the aggregate unpaid principal amount of all Loans and L/C
Exposure then outstanding as the principal amount of its Loans and L/C Exposure
prior to such exercise of banker’s lien, setoff or counterclaim or other event
was to the principal amount of all Loans and L/C Exposure outstanding prior to
such exercise of banker’s lien, setoff or counterclaim or other event; provided,
however, that (i) if any such purchase or purchases or adjustments shall
be made pursuant to this Section 2.18 and the payment giving rise
thereto shall thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and the purchase
price or prices or adjustment restored without interest and (ii) the provisions
of this Section 2.18 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 to any assignee or
participant.  The Borrower expressly
consents to the foregoing arrangements and agrees that any Lender holding a
participation in a Loan or L/C Disbursement deemed to have been so purchased
may exercise any and all rights of banker’s lien, setoff or counterclaim with
respect to any and all moneys owing by the Borrower to such Lender by reason
thereof as fully as if such Lender had made a Loan directly to the Borrower in
the amount of such participation.


Section 2.19.  Payments.  (a) 
All payments made by the Borrower hereunder or under any Note will be
made without set-off, counterclaim or other defense.  The Borrower shall make each payment
(including principal of or interest on any Borrowing or any L/C Disbursement or
any Fees or other amounts) hereunder and under any other Loan Document not
later than 3:00 p.m. on the date when due in immediately available funds.  Except as otherwise provided herein, each
payment by the Borrower with respect to any Loan or Letter of Credit and each
reimbursement of reimbursable expenses or indemnified liabilities shall be made
in the currency in which such Loan was made, such Letter of Credit issued or
such expense or liability was incurred. 
Each such payment (other than (i) Issuing Bank Fees, which shall be paid
directly to the relevant Issuing Bank and (ii) principal of and interest on
Swingline Loans, which shall be paid directly to the Swingline Lender, except
as otherwise provided in Section 2.22(e)) shall be made to the
Administrative Agent at its offices at Deutsche Bank AG New York Branch, 90
Hudson Street, Jersey City, NJ 07302, Attn: 
Noreen Young, Tel: (201) 593-2445, Fax: (201) 593-2314, Email:  noreen.young@db.com or such other office specified
by the Administrative Agent to the Borrower. 
The Administrative Agent shall distribute any such payments received by
it for the account of any other Person to the appropriate recipient promptly
following receipt thereof.


 


77

















 


(b)           Amounts to be applied pursuant to Section
2.13 to the prepayment of Term Loans shall be applied, as applicable, first
to reduce outstanding ABR Loans.  Any
amounts remaining after each such application shall be applied to prepay
Eurodollar Loans.  Notwithstanding the
foregoing, if the amount of any prepayment of Loans required under Section 2.13
shall be in excess of the amount of the ABR Loans at the time outstanding, only
the portion of the amount of such prepayment as is equal to the amount of such
outstanding ABR Loans shall be immediately prepaid and, at the election of the
Borrower, the balance of such required prepayment shall be either (A) deposited
in a deposit account maintained in the name of the Collateral Agent and applied
to the prepayment of Eurodollar Loans on the last day of the then next-expiring
Interest Period for Eurodollar Loans (with all interest accruing thereon for
the account of the Borrower) or (B) prepaid immediately, together with any
amounts owing to the Lenders under Section 2.16.  Notwithstanding any such deposit in such deposit
account, interest shall continue to accrue on such Loans until prepayment.


Section 2.20.  Taxes. 
(a)  Any and all payments by or on
account of any obligation of the Borrower or any other Loan Party hereunder or
under any other Loan Document shall be made free and clear of and without
deduction or withholding for any Indemnified Taxes or Other Taxes; provided,
that if any Taxes are required to be withheld or deducted from such payments,
then for such Indemnified Taxes or Other Taxes, as the case may be, (i) such
Borrower or such Loan Party shall make such deductions or withholdings, (ii)
the Borrower or such Loan Party shall pay the full amount deducted or withheld
to the relevant Governmental Authority in accordance with applicable law and
(iii) in the case of any Indemnified Taxes or Other Taxes required to be
deducted or withheld, the sum payable shall be increased as necessary so that,
after making all required deductions or withholdings (including deductions or
withholdings applicable to additional sums payable under this Section) the
Administrative Agent, Lender or Issuing Bank (as the case may be) receives an
amount equal to the sum it would have received had no such deductions or
withholdings for such Indemnified Taxes or Other Taxes, as the case may be,
been made.


(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 each 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 such Issuing Bank, as
the case may be, on or with respect to any payment by or on account of any
obligation of the Borrower or any other Loan Party 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) and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto, in
each case, whether or not such Indemnified Taxes (but not Other Taxes) were
correctly or legally imposed or asserted by the relevant Governmental
Authority; provided that if, after the payment of any amounts by the
Borrower under this Section, any such Indemnified Taxes in respect of which a
payment was made are thereafter determined to have been incorrectly or
illegally imposed, then the relevant recipient of such payment shall, within 30
days after such determination, repay any amounts paid to it by the Borrower
hereunder in respect of such Indemnified Taxes; provided, further,
that the Borrower shall not be required to indemnify the Administrative Agent,
any Lender or any Issuing Bank


 


78

















 


pursuant to this Section 2.20(c) for any amounts incurred more
than six months prior to the date such Administrative Agent, Lender or Issuing
Bank, as applicable, notifies the Borrower of its intention to claim
compensation therefor.  A certificate as
to the amount of such payment or liability delivered to the Borrower by a
Lender or an Issuing Bank, or by the Administrative Agent on behalf of itself,
a Lender or an 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 or any other Loan
Party to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the Administrative
Agent.


(e)           Each Foreign Lender shall promptly
(a) furnish to the Borrower (with a copy to the Administrative Agent) on or
before the date it becomes a party to the Agreement either (i) two accurate and
complete originally executed copies of U.S. Internal Revenue Service (“IRS”)
Form W-8BEN (or successor form), (ii) two accurate and complete originally
executed copies of IRS Form W-8ECI (or successor form), (iii) two accurate and
complete originally executed copies of IRS Form W-8IMY (or successor form)
together with any required attachments, certifying, in any case, to such
Foreign Lender’s legal entitlement to an exemption or reduction from
U.S. federal withholding tax with respect to all payments hereunder and
(b) provide to the Borrower (with a copy to the Administrative Agent) a new
Form W-8BEN (or successor form), Form W-8ECI (or successor form) or Form W-8IMY
(or successor form) together with any required attachments upon (i) the
expiration or obsolescence of any previously delivered form to reconfirm any
complete exemption from, or any entitlement to a reduction in, U.S. federal
withholding tax with respect to any payment hereunder, (ii) the occurrence of
any event requiring a change in the most recent form previously delivered by it
and (iii) from time to time if requested by the Borrower or the Administrative
Agent; provided that any Foreign Lender that is relying on the so-called
“portfolio interest exemption” shall also furnish a “Non-Bank Certificate” in
the form of Exhibit E together with a Form W-8BEN.  Notwithstanding any other provision of this
paragraph, a Foreign Lender shall not be required to deliver any form pursuant
to this paragraph that such Foreign Lender is not legally able to deliver.


(f)            Any Lender or Issuing Bank that is a
United States Person, as defined in Section 7701(a)(30) of the Code, shall
deliver to the Borrower (with a copy to the Administrative Agent), at the times
specified in Section 2.20(e), two accurate and complete original signed
copies of IRS Form W-9, or any successor form that such Person is entitled to
provide at such time, in order to qualify for an exemption from United States
back-up withholding requirements.


(g)           If the Administrative Agent, a Lender
or an Issuing Bank 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, it shall pay to the Borrower an amount equal
to such refund (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section with respect to the
Indemnified Taxes or Other Taxes giving rise to such refund), net of all
reasonable out-of-pocket expenses of Administrative Agent, such Lender or such
Issuing Bank, as the case may be, and without interest (other than any interest
paid by the relevant Governmental Authority with respect to such refund), provided
that (i) the Borrower,


 


79

















 


upon the request of the
Administrative Agent, such Lender or such Issuing Bank, agrees to repay the
amount paid over to such Borrower (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the Administrative
Agent, such Lender or such Issuing Bank in the event the Administrative Agent,
such Lender or such Issuing Bank is required to repay such refund to such
Governmental Authority and, (ii) nothing herein contained shall interfere with
the right of a Lender or Administrative Agent to arrange its tax affairs in
whatever manner it thinks fit nor oblige any Lender or Agent to claim any tax
refund or to make available its tax returns or disclose any information
relating to its tax affairs or any computations in respect thereof or require
any Lender or Administrative Agent to do anything that would prejudice its
ability to benefit from any other refunds, credits, reliefs, remissions or
repayments to which it may be entitled.


(h)           In addition, each Lender or Issuing
Bank shall use its reasonable efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its applicable lending office if
such change would avoid any requirement of applicable laws of any such
jurisdiction that the Borrower make any deduction or withholding for taxes from
amounts payable to such Lender or Issuing Bank and if such change would not, in
the sole good faith determination of such Lender or Issuing Bank result in any
additional costs, expenses or risks or be otherwise disadvantageous to it.


Section 2.21.  Assignment of Commitments Under Certain
Circumstances; Duty to Mitigate. 
(a)  In the event (i) any Lender
or any Issuing Bank requests compensation pursuant to Section 2.14, (ii)
any Lender or any Issuing Bank delivers a notice described in Section 2.15,
(iii) the Borrower is required to pay any additional amount to any Lender or
the Issuing Bank or any Governmental Authority on account of any Lender or any
Issuing Bank pursuant to Section 2.20, (iv) any Lender shall become
a Defaulting Lender or (v) any Lender refuses to consent to any amendment,
waiver or other modification of any Loan Document requested by the Borrower
that requires the consent of all affected Lenders in accordance with the terms
of Section 9.08 or all the Lenders with respect to a certain Class of
Loans and such amendment, waiver or other modification is consented to by the
Required Lenders or the Required Class Lenders for such Class, as applicable
(any such Lender, a “Non-Consenting Lender”), the Borrower may, at its sole
cost and expense, upon notice to such Lender or such Issuing Bank, as the case
may be, upon notice to the Administrative Agent and such Non-Consenting Lender,
either:


(x)            replace such Lender or Issuing Bank,
as the case may be, by causing such Lender or Issuing Bank to (and such Lender
or Issuing Bank shall be obligated to) assign at par 100% of its relevant
Commitments and the principal of its relevant outstanding Loans plus any
accrued and unpaid interest and fees pursuant to Section 9.04 (with the
assignment fee to be waived in such instance) all of its relevant rights and
obligations under this Agreement to one or more Persons (which Persons shall
otherwise be subject to the approval rights set forth in Section 9.04(b));
provided that (A) the replacement Lender shall agree to the consent,
waiver or amendment to which the Non-Consenting Lender did not agree, (B)
neither the Administrative Agent nor any Lender shall have any obligation to
the Borrower to find a replacement Lender or other such Person and (C) in the
case of any such assignment resulting from a claim for compensation under Section


 


80

















 


2.14 or payments required to be made pursuant
to Section 2.20, such assignment will result in a reduction in such
compensation or payments; or


 


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


Notwithstanding anything
to the contrary contained above in this Section 2.21, unless an Issuing
Bank is removed and replaced with a successor Issuing Bank at the time the
Borrower exercises its rights under this Section 2.21 (in which case the
provisions of Section 2.23(i) shall apply), any Issuing Bank having
undrawn Letters of Credit issued by it (the “Subject Letters of Credit”)
whose Commitments and Obligations are to be repaid or terminated pursuant to
the foregoing provisions of this Section 2.21 shall (x) remain a party
hereto until the expiration or termination of the Subject Letters of Credit,
(y) not issue (or be required to issue) any further Letters of Credit hereunder
and (z) continue to have all rights and obligations of an Issuing Bank under
this Agreement and the other Loan Documents solely with respect to the Subject
Letters of Credit until all of the Subject Letters of Credit have expired, been
terminated or become subject to an L/C Backstop (including all rights of
reimbursement pursuant to Sections 2.23(d), (e), (f) and (h)
for any L/C Disbursement made by such Issuing Bank and all voting rights of an
Issuing Bank (but such voting rights shall be limited to pertain solely to L/C
Disbursements in respect of the Subject Letters of Credit, any Fee payable to
the Issuing Bank in respect of the Subject Letters of Credit, and the rights or
duties of the Issuing Bank in respect of the Subject Letters of Credit), but
excluding any consent rights as an Issuing Bank under Section 9.04(b)).


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


(b)           If (i) any Lender or any Issuing Bank
requests compensation under Section 2.14, (ii) any Lender or any Issuing
Bank delivers a notice described in Section 2.15 or (iii) the Borrower
is required to pay any additional amount to any Lender or any Issuing Bank or
any Governmental Authority on account of any Lender or any Issuing Bank, pursuant
to Section 2.20, then such Lender or such Issuing Bank shall use
reasonable efforts (which shall not require such Lender or such Issuing Bank to
take any action inconsistent with its internal policies or legal or regulatory
restrictions or suffer any disadvantage or burden deemed by it to be material)
(x) to file any certificate or document reasonably requested by the Borrower or
(y) to assign its rights and delegate and transfer its obligations hereunder to
another of its offices, branches or affiliates, if such filing or assignment
would reduce its claims for compensation under Section 2.14 or enable it
to withdraw its notice pursuant to Section 2.15 or would reduce amounts
payable pursuant to Section 2.20, as the case may be, in the future.


 


81

















 


Section 2.22.  Swingline Loans.  (a) 
Subject to the terms and conditions herein set forth, the Swingline
Lender agrees to make loans to the Borrower at any time and from time to time
on or after the Closing Date and until the earlier of the Revolving Credit
Maturity Date and the termination of the Revolving Credit Commitments, in an
aggregate principal amount at any time outstanding that will not result in (i)
the principal amount of all Swingline Loans exceeding $25,000,000 in the
aggregate or (ii) the Aggregate Revolving Credit Exposure exceeding the Total
Revolving Credit Commitment; provided that notwithstanding the
foregoing, the Swingline Lender shall not be obligated to make any Swingline
Loans at a time when a Revolving Credit Lender is a Defaulting Lender, unless
the Swingline Lender has entered into arrangements reasonably satisfactory to
it and the Borrower to eliminate the Swingline Lender’s risk with respect to
the Defaulting Lender’s participation in such Swingline Loans, including by
cash collateralizing such Defaulting Lender’s Pro
Rata Percentage of the outstanding amount of Swingline Loans.  Each Swingline Loan shall be denominated in
dollars and shall be in a principal amount that is a minimum amount of $100,000
and integral multiple of $100,000 in excess thereof.  The Swingline Commitment may be terminated or
reduced from time to time as provided herein. 
Within the foregoing limits, the Borrower may borrow, pay or prepay and
reborrow Swingline Loans hereunder, subject to the terms, conditions and
limitations set forth herein without any premium or penalty.


(b)           The Borrower shall notify the
Swingline Lender by fax, or by telephone (promptly confirmed by fax), not later
than 12:30 p.m. on the Business Day of a proposed Swingline Loan.  Such notice shall be delivered on a Business
Day, shall be irrevocable and shall refer to this Agreement and shall specify
the requested date (which shall be a Business Day) and amount of such Swingline
Loan.  The Swingline Lender shall make
each Swingline Loan available to such Borrower by means of a credit to an
account designated by the Borrower promptly on the date such Swingline Loan is
so requested.


(c)           The Borrower shall have the right at
any time and from time to time to prepay any Swingline Loan, in whole or in
part, upon giving written or fax notice by such Borrower (or telephone notice
promptly confirmed by written, or fax notice) to the Swingline Lender before
2:00 p.m. on the date of prepayment at the Swingline Lender’s address for
notices specified in Section 9.01; provided that any such notice
delivered by the Borrower may state that such notice is conditioned upon the
effectiveness of other financing arrangements, in which case such notice may be
revoked by such Borrower (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is not satisfied.


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


(e)           The Swingline Lender may by written
notice given to the Administrative Agent not later than 11:00 a.m. on any
Business Day require the Revolving Credit 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 Credit Lenders will
participate.  The Administrative Agent
will, promptly upon receipt of such notice, give notice to each Revolving Credit
Lender, specifying in such notice such Lender’s Pro
Rata Percentage of such Swingline Loan. 
In furtherance of the foregoing, each Revolving Credit Lender hereby
absolutely and unconditionally agrees, upon receipt of


 


82

















 


notice as provided above, to
pay to the Administrative Agent, for the account of the Swingline Lender, such
Revolving Credit Lender’s Pro Rata
Percentage of such Swingline Loan.  Each
Revolving Credit 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 an Event of Default,
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. 
Each Revolving Credit Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner
as provided in Section 2.02(c) with respect to Loans made by such Lender
(and Section 2.02(c) shall apply, mutatis
mutandis, to the payment obligations of the Lenders) and the Administrative
Agent shall promptly pay to the Swingline Lender the amounts so received by it
from the Revolving Credit 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 and be distributed by the Administrative
Agent to the Lenders that shall have made their payments pursuant to this
paragraph and to the Swingline Lender, as their interests may appear.  The purchase of participations in a Swingline
Loan pursuant to this paragraph shall not relieve the Borrower (or other party
liable for obligations of the Borrower) of any default in the payment thereof.


Section 2.23.  Letters of Credit.  (a) 
The Borrower may request the issuance of a Letter of Credit on a sight
basis for its own account or for the account of any of its subsidiaries, in a
form reasonably acceptable to the Administrative Agent and the relevant Issuing
Bank, at any time and from time to time on or after the Closing Date and prior
to the earlier to occur of (i) the termination of the Revolving Credit
Commitments and (ii) the date that is five Business Days prior to the Revolving
Credit Maturity Date.  This Section shall
not be construed to impose an obligation upon any Issuing Bank to issue any
Letter of Credit that is inconsistent with the terms and conditions of this
Agreement.  Letters of Credit shall be
denominated in dollars.


(b)           In order to request the issuance of a
Letter of Credit (or to amend, renew or extend an existing Letter of Credit),
the Borrower shall deliver a notice (a “Letter of Credit Request”) to
the relevant Issuing Bank and the Administrative Agent (reasonably, and in any
event, unless waived by the relevant Issuing Bank, no later than two Business
Days in advance of the requested date of issuance, amendment, renewal or
extension) requesting the issuance of a Letter of Credit, or identifying the
Letter of Credit to be amended, renewed or extended and specifying (i) the date
of issuance, amendment, renewal or extension, (ii) the date on which such
Letter of Credit is to expire (which shall comply with paragraph  (c)
below), (iii) the amount of such Letter of Credit, (iv) the name and address of
the beneficiary thereof and (v) such other information as the relevant Issuing
Bank may reasonably request with respect to such 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 L/C Exposure shall not exceed $75,000,000 and (ii) the Aggregate Revolving
Credit Exposure shall not exceed the Total Revolving Credit Commitment.  Promptly after


 


83

















 


receipt of any Letter of
Credit Request, the relevant 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 Request from the Borrower and, if not, such
Issuing Bank will provide the Administrative Agent with a copy thereof.  Subject to the terms and conditions hereof,
such Issuing Bank shall, on the requested date, issue a Letter of Credit for
the account of the Borrower or one of its subsidiaries or enter into the
applicable amendment, as the case may be. 
Promptly after its delivery of any Letter of Credit or any amendment to
a Letter of Credit to an advising bank with respect thereto or to the
beneficiary thereof, the relevant Issuing Bank will also deliver to the
Borrower and the Administrative Agent a true and complete copy of such Letter
of Credit or amendment.


(c)           Each Letter of Credit shall expire at
the close of business on the earlier of the date one year after the date of the
issuance of such Letter of Credit and the Revolving Credit Maturity Date,
unless such Letter of Credit expires by its terms on an earlier date or an L/C
Backstop exists (the “Letter of Credit Expiration Date”); provided,
however, that a Letter of Credit may, upon the request of the Borrower,
include a provision whereby such Letter of Credit (an “Auto-Renewal Letter
of Credit”) shall be renewed automatically for additional consecutive
periods of 12 months or less (but not beyond the Revolving Credit Maturity Date
unless an L/C Backstop exists) unless the relevant Issuing Bank notifies the
beneficiary thereof at least 30 days (or such longer period as may be specified
in such Letter of Credit) prior to the then-applicable Letter of Credit
Expiration Date that such Letter of Credit will not be renewed.  Once an Auto-Renewal Letter of Credit
has been issued, the Revolving Credit Lenders shall be deemed to have
authorized (but may not require) the relevant Issuing Bank to permit the
renewal of such Letter of Credit at any time to an expiry date not later than
the Letter of Credit Expiration Date; provided that (i) the relevant
Issuing Bank may, at its option, not permit any such renewal if the relevant
Issuing Bank has determined that it would have no obligation at such time to
issue such Letter of Credit in its renewed form under the terms hereof (by
reason of the provisions of Section 2.23(l) or otherwise) and (ii) the
relevant Issuing Bank shall not permit any such renewal if it has received
notice (which may be by telephone or in writing) five Business Days prior to
the day that is 30 days (or such longer period as may be specified in such
Letter of Credit) prior to the then-applicable Letter of Credit Expiration Date
from the Administrative Agent, any Revolving Credit Lender or the Borrower that
one or more of the applicable conditions specified in Section 4.01 is
not then satisfied or waived.


(d)           By the issuance of a Letter of Credit
and without any further action on the part of an Issuing Bank or the Lenders,
such Issuing Bank hereby grants to each Revolving Credit Lender, and each such
Lender hereby acquires from such Issuing Bank, a participation in such Letter
of Credit equal to such Lender’s Pro Rata
Percentage of the aggregate amount available to be drawn under such Letter of
Credit, effective upon the issuance of such Letter of Credit.  In consideration and in furtherance of the
foregoing, each Revolving Credit Lender hereby absolutely and unconditionally
agrees to pay to the Administrative Agent, for the account of such Issuing
Bank, such Lender’s Pro Rata Percentage of
each L/C Disbursement made by such Issuing Bank and not reimbursed by the
Borrower (or, if applicable, another party pursuant to its obligations under
any other Loan Document) forthwith on the date due as provided in Section
2.02(f).  Each Revolving Credit
Lender acknowledges and agrees that its obligation 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 the


 


84

















 


occurrence and continuance
of a Default or an Event of Default, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.  Upon any change in the Revolving Credit
Commitments or Pro Rata Percentages of the
Revolving Credit Lenders pursuant to Section 2.21 or 9.04(b), it
is hereby agreed that, with respect to all outstanding Letters of Credit and
unreimbursed L/C Disbursements relating thereto, there shall be an automatic
adjustment to the participations pursuant to this Section 2.23(d) to
reflect the new Pro Rata Percentages of
each Revolving Credit Lender.


(e)           If an Issuing Bank shall make any L/C
Disbursement in respect of a Letter of Credit, the Borrower shall pay to the
Administrative Agent an amount equal to such L/C Disbursement not later than
12:00 noon on the second Business Day following the day the Borrower receives
notice of such L/C Disbursement.


(f)            (i) 
The Borrower’s obligations to reimburse L/C Disbursements as provided in
paragraph (e) above 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 the existence of any
claim, setoff, defense or other right that the Borrower or any other Person may
at any time have against the beneficiary under any Letter of Credit, the
Issuing Bank, the Administrative Agent or any Lender or any other Person,
including any defense based on the failure of any draft or other document
presented under a Letter of Credit to comply with the terms of such Letter of
Credit; provided, that the Borrower shall not be obligated to reimburse
the Issuing Bank for any wrongful payment made by the Issuing Bank as a result
of the Issuing Bank’s gross negligence, bad faith, willful misconduct or breach
of its obligations in determining whether drafts and other documents presented
under a Letter of Credit comply with the terms thereof.


(ii)           Each Lender and the Borrower agree
that, in paying any drawing under a Letter of Credit, the relevant Issuing Bank
shall not have any responsibility to obtain any document (other than any draft,
demand, certificate or other document 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 Banks, the
Agents nor any of the respective correspondents, participants or assignees of
any Issuing Bank shall be liable to any Lender for (x) any action taken or
omitted in connection herewith at the request or with the approval of the
Lenders or the Required Lenders, as applicable, (y) any action taken or omitted
in the absence of gross negligence or willful misconduct or (z) the due
execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Letter of Credit Request.  The Borrower hereby assumes all risks of the
acts or omissions of any beneficiary or transferee with respect to its use of
any Letter of Credit; provided that this assumption is not intended to,
and shall not, preclude either Borrower from pursuing such rights and remedies
as it may have against the beneficiary or transferee at law or under any other
agreement; provided  further that the foregoing shall not be
construed to excuse such Issuing Bank from liability to the Borrower to the
extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Borrowers to the extent permitted by
applicable law) suffered by the Borrower that are caused by such Issuing Bank’s
failure to exercise the standard of care set forth above when determining
whether drafts and other documents presented under a Letter of Credit comply
with the terms thereof.


 


85






 












 


(g)                                  The relevant
Issuing Bank shall, promptly following its receipt thereof, examine all
documents purporting to represent a demand for payment under a Letter of
Credit.  The relevant Issuing Bank shall
as promptly as possible give telephonic notification, confirmed by fax, to the
Administrative Agent and the Borrower of such demand for payment and whether
such Issuing Bank has made or will make an L/C Disbursement thereunder; provided
that any failure to give or delay in giving such notice shall not relieve the
Borrower of its obligations to reimburse such Issuing Bank and the Revolving
Credit Lenders with respect to any such L/C Disbursement.


(h)                                 If an Issuing
Bank shall make any L/C Disbursement in respect of a Letter of Credit, then,
unless the Borrower shall reimburse such L/C Disbursement in full on the same
day that such LC Disbursement is made, the unpaid amount thereof shall bear
interest for the account of an Issuing Bank, for each day from and including
the date of such L/C Disbursement, to but excluding the earlier of the date of
payment by the Borrower or the date on which interest shall commence to accrue
thereon as provided in Section 2.02(f), at the rate per annum that would
apply to such amount if such amount were an ABR Revolving Loan.


(i)                                     An Issuing Bank
may be removed at any time by the Borrower by notice from the Borrower to such
Issuing Bank, the Administrative Agent and the Lenders.  Upon the acceptance of any appointment as an
Issuing Bank hereunder by a Lender that shall agree to serve as successor
Issuing Bank (which Lender shall be reasonably acceptable to the Administrative
Agent), such successor shall succeed to and become vested with all the
interests, rights and obligations of the retiring Issuing Bank.  At the time such removal shall become
effective, the Borrower shall pay all accrued and unpaid fees pursuant to Section
2.05(c)(ii).  The acceptance of any
appointment as an Issuing Bank hereunder by a successor Lender shall be
evidenced by an agreement entered into by such successor, the Borrower and the
Administrative Agent, in a form reasonably satisfactory to the Borrower and the
Administrative Agent, and, from and after the effective date of such agreement,
(i) such successor Lender shall have all the rights and obligations of the
previous Issuing Bank under this Agreement and the other Loan Documents and
(ii) references herein and in the other Loan Documents 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 resignation or
removal of an Issuing Bank hereunder, the retiring Issuing Bank shall remain a
party hereto and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement and the other Loan Documents with respect to
Letters of Credit issued by it prior to such removal, but shall not be required
to issue additional Letters of Credit.


(j)                                    If the maturity of any of
the Loans under the Credit Facilities has been accelerated and the Borrower
shall have received notice from the Administrative Agent (at the request of the
Required Revolving Lenders) or the Required Revolving Lenders, the Borrower
shall deposit in an account with the Collateral Agent, for the benefit of the
Revolving Credit Lenders, an amount in cash equal to the L/C Exposure as of
such date.  Such deposit shall be held by
the Collateral Agent as collateral for the payment of the Obligations.  The Collateral Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such
account.  Other than any interest earned
on the investment of such deposits in Cash Equivalents, which investments shall
be made at the option and sole discretion of the Collateral Agent for the
benefit of the Borrower, such deposits shall not bear interest.  Interest or profits, if 


 


86

















 


any, on such investments
shall accumulate in such account.  Until
such acceleration is rescinded, moneys in such account shall (i) automatically
be applied by the Administrative Agent to reimburse each Issuing Bank for L/C
Disbursements for which it has not been reimbursed, (ii) be held for the
satisfaction of the reimbursement obligations of the Borrower for the L/C
Exposure at such time and (iii) subject to the consent of the Required
Revolving Lenders, be applied to satisfy the Obligations.  If the Borrower are required to provide an
amount of cash collateral hereunder as a result of the acceleration of the
Loans under the Credit Facilities, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three Business Days to the
extent any such acceleration has been rescinded.


(k)                                 The Borrower
may, at any time and from time to time with the consent of the Administrative
Agent (which consent shall not be unreasonably withheld or delayed) and such
Lender, designate one or more additional Lenders to act as an issuing bank
under the terms of this Agreement.  Any
Lender designated as an issuing bank pursuant to this paragraph (k) shall be
deemed to be an “Issuing Bank” (in addition to being a Lender) in respect of
Letters of Credit issued or to be issued by such Lender, and, with respect to
such Letters of Credit, such term shall thereafter apply to the other Issuing
Bank and such Lender.


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


(i)                                     any order,
judgment or decree of any Governmental Authority or arbitrator shall by its
terms purport to enjoin or restrain such Issuing Bank from issuing such Letter
of Credit, or any law applicable to such Issuing Bank or any directive (whether
or not having the force of law) from any Governmental Authority with
jurisdiction over such Issuing Bank shall prohibit, or direct that such Issuing
Bank refrain from, the issuance of letters of credit generally or such Letter
of Credit in particular;


(ii)                                  the issuance of
such Letter of Credit would violate any applicable laws binding upon such
Issuing Bank; and


(iii)                               any Revolving
Credit Lender is a Defaulting Lender at such time, unless such Issuing Bank has
entered into arrangements reasonably satisfactory to it and the Borrower to
eliminate such Issuing Bank’s risk with respect to the participation in Letters
of Credit by such Defaulting Lender, including by cash collateralizing such
Defaulting Lender’s Pro Rata Percentage of
the L/C Exposure.


(m)                             Notwithstanding
anything else to the contrary in this Agreement, in the event of any conflict
or inconsistency between the terms hereof and the terms of any Letter of Credit
Requests, reimbursement agreements or similar agreements, the terms hereof
shall control.


Section 2.24.  Incremental
Credit Extensions.  (a)  The Borrower may at any time or from time to
time after the Closing Date, by notice to the Administrative Agent (whereupon
the Administrative Agent shall promptly deliver a copy to each of the Lenders),
request (i) one or more additional tranches of term loans (the “Incremental
Term Loans”) or (ii) one or more increases in the amount of the Revolving
Credit Commitments (each such increase, a “Revolving 


 


87

















 


Commitment
Increase” and,
together with any Incremental Term Loans, a “Credit Increase”); provided
that both at the time of any such request and upon the effectiveness of any
Incremental Amendment referred to below, no Event of Default shall exist.  Each Credit Increase shall be in an aggregate
principal amount that is not less than $25,000,000 (or such lower amount that
either (A) represents all remaining availability under the limit set forth in
the next sentence or (B) is reasonably acceptable to the Administrative
Agent).  Notwithstanding anything to the
contrary herein, the aggregate amount of the Credit Increases shall not exceed
the greater of (x) $500,000,000 or (y) the maximum amount at the time of
such proposed Credit Increase that could be incurred such that after giving pro forma effect to such Credit Increase, the
Senior Secured Net Leverage Ratio does not exceed 5.00:1.00 as of the last date
for which Section 5.04 Financials have been delivered to the Administrative
Agent.  Each Incremental Term Loan
(1) shall rank pari passu in right of
payment and of security with the Revolving Credit Loans and the then-existing
Term Loans, (2) shall not mature earlier than the Term Loan Maturity Date,
(3) shall have a Weighted Average Life to Maturity not shorter than the
remaining Weighted Average Life to Maturity of the then-existing Term Loans
(without giving effect to annual amortization on any Incremental Term Loan
Facility not in excess of 1% of the principal amount thereof), (4) shall be
treated in the same manner as the Term Loans for purposes of Section 2.13(e),
Section 2.13(g) and Section 2.17(b), (5) the interest rates and
amortization schedule applicable to any Incremental Term Loans shall be
determined by the Borrower and the Lenders thereunder, and (6) subject to the
above, any terms for Incremental Term Loans that are inconsistent with the
then-existing Term Loans shall be reasonably satisfactory to the Administrative
Agent.  Each notice from the Borrower
pursuant to this Section 2.24 shall set forth the requested amount and
proposed terms of the relevant Credit Increases.  Incremental Term Loans may be made, and
Revolving Commitment Increases may be provided, by any existing Lender or by
any other bank or other financial institution (any such other bank or other
financial institution being called an “Additional Lender”); provided
that the relevant Persons under Section 9.04(b) shall have consented (in
each case, not to be unreasonably withheld, conditioned or delayed) to such
Lender’s or Additional Lender’s making such Incremental Term Loans or providing
such Revolving Commitment Increases, if such consent would be required under Section
9.04(b) for an assignment of Loans or Revolving Credit Commitments, as
applicable, to such Lender or Additional Lender.  The Arrangers agree, upon the request of the
Borrower and pursuant to mutually satisfactory engagement and compensation
arrangements, to use their commercially reasonable efforts to obtain any
Additional Lenders to make any such requested Incremental Term Loans or
Revolving Commitment Increases; provided that the Arrangers’ agreement
to use such efforts does not constitute a commitment to provide any such
requested Incremental Term Loans or Revolving Commitment Increases.


(b)                                 Commitments in respect of
Credit Increases shall become Commitments (or in the case of a Revolving
Commitment Increase to be provided by an existing Revolving Credit Lender, an
increase in such Lender’s applicable Revolving Credit Commitment) under this
Agreement pursuant to an amendment (an “Incremental Amendment”) to this
Agreement and, as appropriate, the other Loan Documents, executed by the
Borrower, each Lender agreeing to provide such Commitment, if any, each
Additional Lender, if any, and the Administrative Agent.  The Incremental 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 reasonable opinion of
the Administrative Agent and the Borrower, to effectuate the provisions of this
Section 2.24.  The effectiveness
of any Incremental Amendment 


 


88

















 


shall be subject to the
satisfaction (or waived) on the date thereof (each, an “Incremental Facility
Closing Date”) of each of the conditions set forth in Section 4.01
(it being understood that all references to “the date of such Credit Event” or
similar language in such Section 4.01 shall be deemed to refer to the
effective date of such Incremental Amendment). 
The Borrower may use the proceeds of Incremental Term Loans for any
purpose not prohibited by this Agreement. 
No Lender shall be obligated to provide any Credit Increases unless it
so agrees in its sole discretion.  Upon
each increase in the Revolving Credit Commitments pursuant to this Section,
each Revolving Credit Lender immediately prior to such increase will automatically
and without further act be deemed to have assigned to each Lender providing a
portion of the Revolving Commitment Increase (each, a “Revolving Commitment
Increase Lender”) in respect of such increase, and each such Revolving
Commitment Increase Lender will automatically and without further act be deemed
to have assumed, a portion of such Revolving Credit Lender’s participations
hereunder in outstanding Letters of Credit and Swingline Loans such that, after
giving effect to each such deemed assignment and assumption of participations,
the percentage of the aggregate outstanding (i) participations hereunder in
Letters of Credit and (ii) participations hereunder in Swingline Loans
held by each Revolving Credit Lender (including each such Revolving Commitment
Increase Lender) will equal the percentage of the aggregate Revolving Credit
Commitments of all Revolving Credit Lenders represented by such Revolving
Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such
increase, there are any Revolving Loans outstanding, such Revolving Loans shall
on or prior to the effectiveness of such Revolving Commitment Increase be
prepaid from the proceeds of additional Revolving Loans made hereunder
(reflecting such increase in Revolving Credit Commitments), which prepayment
shall be accompanied by accrued interest on the Revolving Loans being prepaid
and any costs incurred by any Lender in accordance with Section 2.16.


(c)                                  The Loans and
Commitments established pursuant to this paragraph shall constitute Loans and
Commitments under, and shall be entitled to all the benefits afforded by, this
Agreement and the other Loan Documents, and shall, without limiting the
foregoing, benefit equally and ratably from the Guarantees and security
interests created by the Security Documents. 
The Loan Parties shall take any actions reasonably required by the
Administrative Agent to ensure and/or demonstrate that the Lien and security
interests granted by the Security Documents continue to be perfected under the
UCC or otherwise after giving effect to the establishment of any such Class of
Term Loans or any such new Commitments.


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


ARTICLE III


 


Representations and Warranties


The Borrower represents and warrants (it being understood that, for
purposes of the representations and warranties made in the Loan Documents on
the Closing Date, such representations and warranties shall be construed as
though the Transactions have been consummated) to the Administrative Agent, the
Collateral Agent, each Issuing Bank and each of the Lenders that:


 


89

















 


Section 3.01.  Organization; Powers.  Each Loan Party and each Restricted
Subsidiary (a) is duly organized or formed, validly existing and in good
standing (where relevant) under the laws of the jurisdiction of its
organization, except where the failure to be duly organized or formed or to
exist (other than in the case of the Borrower) or be in good standing could not
reasonably be expected to result in a Material Adverse Effect, (b) has all
requisite power and authority to own its property and assets and to carry on
its business as now conducted, except where the failure to have such power and
authority could not reasonably be expected to result in a Material Adverse
Effect, (c) is qualified to do business in, and is in good standing (where
relevant) in, every jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification, except
where the failure to so qualify or be in good standing (where relevant) could
not reasonably be expected to result in a Material Adverse Effect, and (d) has
the requisite corporate power and authority to execute, deliver and perform its
obligations under each of the Loan Documents to which it is a party.


Section 3.02.  Authorization.  The execution, delivery and performance of
the Loan Documents (a) have been duly authorized by all requisite corporate or
other organizational and, if required, stockholder or member action of each
Loan Party and (b) will not (i) violate (A) any provision (x) of any
applicable law, statute, rule or regulation, or (y) of the certificate or
articles of incorporation, bylaws or other constitutive documents of any Loan
Party, (B) any applicable order of any Governmental Authority, (C) any
provision of the New Senior Notes Documentation or the Existing Notes or (D)
any provision of any other material indenture, agreement or other instrument to
which any Loan Party or any Restricted Subsidiary is a party or by which any of
them or any of their property is bound, (ii) be in conflict with, result in a
breach of or constitute (alone or would with notice or lapse of grace period or
both) a default under or give rise to any right to require the prepayment,
repurchase or redemption of any obligation under (x) the New Senior Notes
Documentation or the Existing Notes or (y) any other such material indenture,
agreement or other instrument or (iii) result in the creation or imposition of
any Lien upon or with respect to any property or assets now owned or hereafter
acquired by any Loan Party or any Restricted Subsidiary (other than Liens
created or permitted hereunder or under the Security Documents); except with respect
to clauses  (b)(i) through (b)(iii) of this Section 3.02
(other than clauses  (b)(i)(A)(y), (b)(i)(C) and (b)(ii)(x)),
to the extent that such violation, conflict, breach, default, or creation or
imposition of Lien could not reasonably be expected to result in a Material
Adverse Effect.


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


Section 3.04.  Governmental
Approvals.  Except to the extent the
failure to obtain or make the same could not reasonably be expected to result
in a Material Adverse Effect, no action, consent or approval of, registration
or filing with or any other action by any 


 


90

















 


Governmental Authority is
necessary or will be required in connection with the execution, delivery and
performance of the Loan Documents by the Loan Parties, except for (a) filings
and registrations necessary to perfect the Liens on the Collateral granted by
the Loan Parties in favor of the Collateral Agent and required to enforce the
rights of the Lenders under the Security Documents as expressly set forth
therein, (b) such as have been made or obtained and are in full force and
effect and (c) filings and registrations set forth on Schedule 3.04.


Section 3.05.  Financial Statements.  (a) 
The Company’s consolidated balance sheets and related statements of
income, stockholder’s equity and cash flows as of and for the fiscal year ended
December 31, 2006, audited by and accompanied by the report of KPMG LLP present
fairly in all material respects the financial condition and results of
operations and cash flows of the Company and its consolidated subsidiaries as
of such dates and for such periods.  Such
financial statements were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise noted therein.


(b)                                 The Company has
heretofore delivered to the Administrative Agent its unaudited pro forma consolidated balance sheet and
related pro forma statements of income and
cash flows as of the fiscal quarter ended September 30, 2007, prepared giving
effect to the Transactions as if they had occurred, with respect to such
balance sheet, on such date and, with respect to such other financial
statements, on the first day of the four-fiscal quarter period ending on such
date.  Such pro forma financial statements have been prepared in good faith by the
Borrower, based on the assumptions believed by the Borrower on the date of
delivery thereof to be reasonable, are based in all material respects on the
information reasonably available to the Borrower as of the date of delivery
thereof, reflect in all material respects the adjustments required to be made
to give effect to the Transactions, it being understood and agreed by the
Lenders that actual adjustments may vary from the pro forma adjustments and actual results may vary from such
projected results and, in each case, such variations may be material.


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


Section 3.07.  Title to Properties.  Each Loan Party and each Restricted
Subsidiary has good title in fee simple with respect to any real property owned
by such Loan Party or Restricted Subsidiary to, valid leasehold interests in or
rights to use, all its material real properties and other assets other than (i)
minor defects in title that do not materially interfere with its ability to
conduct its business or to utilize such assets for their intended purposes,
(ii) except where the failure to have such title or other property
interests described above could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect and (iii) Permitted
Liens.


Section 3.08.  Subsidiaries.  Schedule 3.08 sets forth as of the
Closing Date a list of all subsidiaries of Holdings, the jurisdiction of their
formation or organization, as the case may be, and the ownership interest of
such subsidiary’s parent company therein, and such Schedule shall denote which
subsidiaries as of the Closing Date are not Subsidiary Guarantors.


 


91

















 


Section 3.09.  Litigation; Compliance with Laws.
(a)  Except as set forth on Schedule
3.09, there are no actions, suits or proceedings at law or in equity or by
or before any Governmental Authority now pending or, to the knowledge of the
Borrower, threatened in writing against any Loan Party or any Restricted
Subsidiary or any business, property or rights of any such Person that has a
reasonable likelihood of adverse determination and such adverse determination
could reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect.


(b)                                 None of the
Loan Parties or any Restricted Subsidiary or any of their respective material
properties is in violation of any applicable law, rule or regulation, or is in
default with respect to any judgment, writ, injunction, decree or binding order
of any Governmental Authority, where any such violation or default could
reasonably be expected to result in a Material Adverse Effect.


Section 3.10.  Use of Proceeds; Federal Reserve
Regulations.  (a)  All proceeds of the Term Loans (other than
Incremental Term Loans) will be used by the Borrower to finance the Merger and
the Refinancing and to pay fees, expenses and costs incurred in connection with
the Transaction.


(b)                                 All proceeds of
the Revolving Loans and the Swingline Loans and Incremental Term Loans will be
used for the working capital and other general corporate purposes of Holdings,
the Borrower and its Subsidiaries, including, without limitation Permitted
Acquisitions; provided that none of the Revolving Loans and the
Swingline Loans may be used for the purposes described in Section 3.10(a)
(other than the payment of fees, expenses and costs in connection with the
Transactions and payments with respect to incentive compensation and stay
bonuses in an amount not to exceed $50,000,000).


(c)                                  None of the
Loan Parties or any Restricted Subsidiary is engaged principally, or as one of
its important activities, in the business of purchasing or carrying Margin
Stock for its own account or extending credit for the purpose of purchasing or
carrying Margin Stock for its own account.


(d)                                 No part of the
proceeds of any Loan or any Letter of Credit will be used (i) to purchase
or carry any Margin Stock for its own account or to extend credit to others for
the purpose of purchasing or carrying any Margin Stock  for its own account or (ii) for a purpose in
violation of Regulation T, U or X issued by the Board.


Section 3.11.  Investment Company Act.  None of the Loan Parties or any Restricted
Subsidiary is an “investment company” as defined in the Investment Company Act
of 1940.


Section 3.12.  Taxes.  Each of the Loan Parties and each Restricted
Subsidiary has except where the failure to so file or pay could not reasonably
be expected to have a Material Adverse Effect, filed or caused to be filed (in
each case after giving effect to any extensions and grace periods) all Federal,
state and other material Tax returns, required to have been filed by it and has
paid, caused to be paid, or made provisions for the payment of all Taxes due
and payable by it and all material assessments received by it, except such
Taxes and assessments that are not 


 


92

















 


overdue by more than 45
days or the amount or validity of which are being contested in good faith by
appropriate proceedings and for which such Loan Party or such Restricted
Subsidiary, as applicable, shall have set aside on its books adequate reserves
in accordance with GAAP.


Section 3.13.  No Material Misstatements.  As of the Closing Date, to the knowledge of
the Borrower, the Confidential Information Memorandum and other written
information, reports, financial statements, exhibits and schedules furnished by
(as modified or supplemented by other information so furnished prior to the
Closing Date) or on behalf of the Borrower to the Administrative Agent or the
Lenders (other than projections and other forward looking information and
information of a general economic or industry specific nature) on or prior to
the Closing Date in connection with the transactions contemplated hereby (when
taken as a whole) did not and, as of the Closing Date, does not (when taken as
a whole) contain any material misstatement of fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not materially misleading.  The projections contained in the Confidential
Information Memorandum were prepared in good faith on the basis of assumptions
at the time of delivery thereof in each case based on information provided by
the Borrower, believed by the Borrower to be reasonable in light of the
conditions existing at the time of delivery of such projections, and
represented, a reasonable good faith estimate of future financial performance
by the Borrower and its Restricted Subsidiaries (it being understood that such
projections are not to be viewed as facts and are subject to significant
uncertainties and contingencies, many of which are beyond the control of the
Borrower, that actual results may vary from projected results and such
variances may be material and that the Borrower makes no representation as to
the attainability of such projections or as to whether such projections will be
achieved or will materialize).


Section 3.14.  Employee Benefit Plans.  No ERISA Event has occurred or could
reasonably be expected to occur, that could reasonably be expected to result in
a Material Adverse Effect.  Each Pension
Plan and/or Foreign Plan is in compliance with the applicable provisions of
ERISA, the Code and/or applicable law, except for such non-compliance that
could not reasonably be expected to have a Material Adverse Effect.  No Pension Event has occurred or could
reasonably be expected to occur, which could reasonably be expected to result
in a Material Adverse Effect.


Section 3.15.  Environmental
Matters.  Except as otherwise
provided in Schedule 3.15, or except with respect to any matters that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, (i) each Loan Party and each of their respective
subsidiaries are in compliance with all applicable Environmental Laws, and have
obtained, and are in compliance with, all permits required of them under
applicable Environmental Laws, (ii) there are no claims, proceedings,
investigations or actions by any Governmental Authority or other Person
pending, or to the knowledge of the Borrower, threatened against any Loan Party
or any of their respective subsidiaries under any Environmental Law, (iii) none
of the Loan Parties or any of their respective subsidiaries has agreed to
assume or accept responsibility, by contract, for any liability of any other
Person under Environmental Laws and (iv) there are no facts, circumstances or
conditions relating to the past or present business or operations of any Loan
Party, any of their respective subsidiaries, or any of their respective
predecessors (including the disposal of any wastes, hazardous substances or
other materials), or to any past or present assets of any Loan Party or any of
their respective 


 


93

















 


subsidiaries, that could
reasonably be expected to result in any Loan Party or any subsidiary incurring
any claim or liability under any Environmental Law.


Section 3.16.  Security Documents.  All filings (including payment of any filing
or recordation fees) and other actions necessary to perfect the Liens on the
Collateral created under, and in the manner contemplated by, this Agreement and
the Security Documents have been duly made or taken or otherwise provided for
in a manner reasonably acceptable to the Collateral Agent in each case to the
extent required by the terms of this Agreement or such Security Documents and
the Security Documents create in favor of the Collateral Agent, for the benefit
of the Secured Parties, a valid, and together with the completion of such
filings (including payment of any filing or recordation fees) and other actions
required by this Agreement or the Security Documents, perfected first priority
Lien in the Collateral (to the extent that, (i) such perfection may be obtained
under New York Law and (ii) with respect to Collateral that is intellectual
property, a valid, perfected Lien in such Collateral is possible through such
filings and other actions), securing the payment of the Secured Obligations,
subject only to Permitted Liens, to the extent any such Permitted Liens would
have priority over the Liens in favor of the Administrative Agent pursuant to
any applicable law; provided, however, the representation and
warranty set forth in this Section 3.16 as it relates to the effects of
perfection or non-perfection, the priority or the enforceability of any pledge
of or security interest in any Equity Interests of any Foreign Subsidiary, or
as to the rights and remedies of the Collateral Agent or any Lender with
respect thereto shall be made only to the extent of comparable representations
and warranties applicable to such Equity Interests or Collateral set forth in
the Security Documents pursuant to which Liens on such Equity Interests or
Collateral are purported to be granted.


Section 3.17.  Labor Matters.  Except as set forth in Schedule 3.17
and except in the aggregate to the extent the same has not had and could not be
reasonably expected to have a Material Adverse Effect, (a) there are no
strikes, lockouts, slowdowns or other labor disputes against any Loan Party or
any Restricted Subsidiary pending or, to the knowledge of the Borrower,
threatened in writing, and (b) the hours worked by and payments made to
employees of the Loan Parties and the Restricted 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.


Section 3.18.  Solvency.  On the Closing Date after giving effect to
the Transactions, the Loan Parties, on a consolidated basis, are Solvent.


Section 3.19.  Intellectual Property.  Except as set forth in Schedule 3.19,
the Borrower and each of its Restricted Subsidiaries own, license or possess
the right to use all intellectual property, free and clear of Liens other than
Permitted Liens, that are necessary for the operation of their respective
businesses as currently conducted, except where the failure to obtain any such
rights or the imposition of any such Liens could not reasonably be expected to
have a Material Adverse Effect.


Section 3.20.  Subordination
of Junior Financing.  The Obligations
constitute “Senior Debt,” “Senior Indebtedness,” “Guarantor Senior Debt” or “Senior
Secured Financing” (or any comparable term) under, and as defined in, any
Junior Financing Documentation.


 


94

















 


ARTICLE IV


 


Conditions of Lending


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


Section 4.01.  All Credit Events.  On the date of the making of each Loan,
including the making of a Swingline Loan and on the date of each issuance or
amendment of a Letter of Credit (each such event being called a “Credit
Event”; it being understood that the conversion into a Eurodollar Loan, an
ABR Loan, or continuation of a Eurodollar Loan does not constitute a Credit
Event):


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


(b)                                 The
representations and warranties set forth in Article III and in each
other Loan Document shall be true and correct in all material respects on and
as of the date of such Credit Event with the same effect as though made on and
as of such date, except to the extent such representations and warranties
expressly relate to an earlier date, in which case they shall be true and
correct in all material respects as of such earlier date; provided, however,
that solely for purposes of representations and warranties made on the Closing
Date, such representations and warranties shall be limited in all respects to
the representations and warranties in Sections 3.01(d), 3.02(a), 3.03,
3.10(c) and (d), 3.11 and 3.20 and the Other
Closing Date Representations.


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


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


Section 4.02.  First Credit Event.  On the Closing Date:


(a)                                 This Agreement
shall have been duly executed and delivered by Holdings and the Borrower.


(b)                                 The
Administrative Agent shall have received, on behalf of itself, the Lenders and
each Issuing Bank, an opinion of Kirkland & Ellis LLP, special counsel for 


 


95

















 


the
Loan Parties, addressed to each Issuing Bank, the Administrative Agent and the
Lenders, in form and substance reasonably satisfactory to the Administrative
Agent.


(c)                                  The
Administrative Agent shall have received (i) a copy of the certificate or
articles of incorporation, organization or formation, including all amendments
thereto, of each Loan Party, certified as of a recent date by the Secretary of
State of the state of its organization, and, if available, a certificate as to
the good standing (where relevant) of each Loan Party as of a recent date, from
such Secretary of State or similar Governmental Authority and (ii) a
certificate of the Secretary or Assistant Secretary of each Loan Party dated
the Closing Date and certifying (A) that attached thereto is a true and
complete copy of the by-laws or operating (or limited liability company)
agreement of such Loan Party as in effect on the Closing Date, (B) that
attached thereto is a true and complete copy of resolutions duly adopted by the
Board of Directors (or equivalent body) of such Loan Party authorizing the
execution, delivery and performance of the Loan Documents to which such Person
is a party and, in the case of the Borrower, the borrowings hereunder, and that
such resolutions have not been modified, rescinded or amended and are in full
force and effect, (C) that (except in connection with the Merger) the
certificate or articles of incorporation or organization of such Loan Party
have not been amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (i) above, and
(D) as to the incumbency and specimen signature of each officer executing any
Loan Document on behalf of such Loan Party and countersigned by another officer
as to the incumbency and specimen signature of the Secretary or Assistant
Secretary executing the certificate pursuant to clause (ii) above.


(d)                                 The Administrative
Agent shall have received a certificate, dated the Closing Date and signed by a
Financial Officer of the Company, certifying compliance with the conditions
precedent set forth in Sections 4.01(b) and 4.02(i).


(e)                                  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 at
least three Business Days prior to the Closing Date, reimbursement or payment
of all reasonable out-of-pocket expenses required to be reimbursed or paid by
Merger Sub hereunder or under any other Loan Document.


(f)                                   The Borrower
shall have delivered or caused to be delivered to the Administrative Agent a
solvency certificate from a Responsible Officer of the Borrower setting forth
the conclusions that, after giving effect to the Transactions, the Loan Parties
(on a consolidated basis) are Solvent.


(g)                                  The Security
Documents shall have been duly executed by each Loan Party that is to be a
party thereto and shall be in full force and effect.  All actions necessary to establish that the
Collateral Agent will have a perfected first priority Lien on the Collateral
(subject to Permitted Liens, to the extent any such Permitted Liens would have
priority over the Liens in favor of the Administrative Agent pursuant to any
applicable law) shall have been taken; provided, however, that
with respect to any Collateral the security interest in which may not be
perfected by filing a UCC financing statement, if the perfection of the
Administrative Agent’s security interest in such 


 


96

















 


Collateral
may not be accomplished on or prior to the Closing Date without undue burden or
expense, then delivery of documents and instruments for perfection of such
security interest shall not constitute a condition precedent to the initial
funding of the Loans hereunder if the Borrower agrees to deliver or cause to be
delivered such documents and instruments, and take or cause to be taken such
other actions as may be required to perfect such security interests on terms
and conditions as set forth in Section 5.10.


(h)                                 The
Administrative Agent shall have received the results of (i) searches of the
Uniform Commercial Code filings (or equivalent filings) and (ii) bankruptcy,
judgment and tax lien searches, made with respect to the Loan Parties in the
states (or other jurisdictions) of formation of such Person, together with (in
the case of clause (i)) copies of the financing statements (or similar
documents) disclosed by such search.


(i)                                     No Target
Material Adverse Effect shall have occurred.


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


(k)                                 The
Administrative Agent shall have received a certified copy, certified as true
and correct by a Responsible Officer of the Merger Agreement, duly executed by
the parties thereto (together with all exhibits and schedules thereto).  The Merger shall be consummated substantially
concurrently with the initial funding of Loans on the Closing Date in
accordance with and on the terms described in the Merger Agreement, and no
material provision of the Merger Agreement shall have been amended or waived in
any respect materially adverse to the interests of the Lenders without the
prior written consent of the Arrangers, not to be unreasonably withheld or
delayed.


(l)                                     Substantially
simultaneously with the initial funding of Loans on the Closing Date (i) the
Equity Investment shall have been made and (ii) Merger Sub shall have received
gross cash proceeds of not less than $885,000,000 from the issuance of the New
Senior Notes.


(m)                             All amounts due
or outstanding in respect of the Existing Debt (other than contingent
obligations) shall have been (or substantially simultaneously with the initial
funding of the Loans on the Closing Date shall be) paid in full, all
commitments (if any) respect thereof terminated and all guarantees (if any)
thereof discharged and released (such repayment, the “Refinancing”).  After giving effect to the Transactions,
substantially all of the Indebtedness of Holdings and its subsidiaries shall
have been repaid other than (i) Indebtedness under the Loan Documents,
(ii) the New Senior Notes, (iii) the Existing Notes and (iv) other Indebtedness
permitted by Section 6.01.


(n)                                 The Arrangers shall have received (i)
audited consolidated balance sheets and related statements of income,
stockholders’ equity and cash flows of the Company and its subsidiaries for the
fiscal year 2006 (which the Arrangers acknowledge receipt of) and (ii)
unaudited consolidated balance sheets and related statements of income,
stockholders’ equity and cash flows of Holdings and its subsidiaries for each
subsequent 


 


97

















 


fiscal quarter ended
at least 45 days before the Closing Date, in each case, prepared in accordance
with GAAP (except as otherwise disclosed).


(o)                                 The Arrangers
shall have received a pro forma
consolidated balance sheet of Holdings as of the date of the most recent
consolidated balance sheet delivered pursuant to clause (ii) of the
preceding clause (n), as adjusted to give effect to the Transactions and
the financings contemplated hereby as if such transactions had occurred on such
date or on the first day of such period, as applicable, and to such other
adjustments as shall be agreed among Sponsor, Holdings, and the Arrangers.


(p)                                 The Lenders
shall have received from the Loan Parties, to the extent requested at least 10
days prior to the Closing Date, all documentation and other information
required by regulatory authorities under applicable “know your customer” and
anti-money laundering rules and regulations, including the USA PATRIOT Act.


ARTICLE V


 


Affirmative Covenants


The Borrower covenants
and agrees with each Lender that until the Termination Date it will, and will
cause each of the Restricted Subsidiaries to:


Section 5.01.  Existence; Compliance with Laws;
Businesses and Properties.  (a)  Do or cause to be done all things reasonably
necessary to preserve, renew and keep in full force and effect its legal
existence under the laws of its jurisdiction of organization, except (i) other
than in the case of the Borrower, to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect or (ii) as otherwise
expressly permitted under Section 6.04 or Section 6.05.


(b)                                 Other than
where the failure to do so could not reasonably be expected to have a Material
Adverse Effect, (i) do or cause to be done all things reasonably necessary to
obtain, preserve, renew, extend and keep in full force and effect the material
rights, licenses, permits, franchises, authorizations, patents, copyrights,
trademarks and trade names necessary to the conduct of its business, (ii)
comply in all material respects with applicable laws, rules, regulations and
decrees and orders of any Governmental Authority (including Environmental Laws
and ERISA), whether now in effect or hereafter enacted and (iii) maintain and
preserve all property necessary to the conduct of such business and keep such
property in satisfactory repair, working order and condition (ordinary wear and
tear, casualty and condemnation excepted) and from time to time make, or cause
to be made, all needed repairs, renewals, additions, improvements and replacements
thereto necessary in the reasonable judgment of management to the conduct of
its business.


Section 5.02.  Insurance.  (a) 
Keep its material insurable properties adequately insured in all
material respects at all times by financially sound and reputable insurers to
such extent and against such risks, including fire and other risks insured
against by extended coverage, as is customary with companies in the same or
similar businesses operating in the same or similar locations.


 


98

















 


(b)                                 Cause all such
policies covering any Collateral to be endorsed or otherwise amended to include
a customary lender’s loss payable endorsement and, to the extent available on
commercially reasonable terms, cause each such policy to provide that it shall
not be canceled, modified or not renewed (i) by reason of nonpayment of premium
unless not less than 10 days’ prior written notice thereof is given by the
insurer to the Administrative Agent and the Collateral Agent (giving the Administrative
Agent and the Collateral Agent the right to cure defaults in the payment of
premiums) or (ii) for any other reason unless not less than 10 days’ prior
written notice thereof is given by the insurer to the Administrative Agent and
the Collateral Agent.


(c)                                  With respect to
each Mortgaged Property, obtain flood insurance in such total amount as the
Administrative Agent or the Required Lenders may from time to time require and
is considered normal and customary and at reasonable cost, if at any time the
area in which any improvements located on any Mortgaged Property is designated
a “flood hazard area” in any Flood Insurance Rate Map published by the Federal
Emergency Management Agency (or any successor agency), and otherwise comply
with the National Flood Insurance Program as set forth in the Flood Disaster
Protection Act of 1973, as amended from time to time.


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


Section 5.04.  Financial Statements; Reports, etc.  Furnish to the Administrative Agent (who will
distribute to each Lender):


(a)                                 not later than
the fifth Business Day after the 90th day following the end of each fiscal year
of the Borrower (or, with respect to the 2007 fiscal year of the Borrower, the
fifth Business Day after the 120th day following the end of such fiscal year)
(i) its consolidated balance sheet and related statements of income,
stockholders’ equity and cash flows showing the financial condition of Holdings
and its consolidated subsidiaries as of the close of such fiscal year and the
results of its operations and the operations of such Persons during such year,
together with comparative figures for the immediately preceding fiscal year,
all in reasonable detail and prepared in accordance with GAAP, all audited by
KPMG LLC or other independent public accountants of recognized national
standing or such other independent public accountant reasonably acceptable to
the Administrative Agent and (ii) an opinion of such accountants (which
opinion shall be 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 fairly present in all
material respects the financial condition and results of operations of Holdings
and its consolidated subsidiaries on a consolidated basis in accordance with
GAAP (it being agreed that the furnishing of the Borrower’s annual report on
Form 10-K for such year, as filed with the SEC, will satisfy the Borrower’s
obligation under this Section 5.04(a));


 


99

















 


(b)                                 not later than
the fifth Business Day after the 45th day following the end of each of the
first three fiscal quarters of each fiscal year of the Borrower, its
consolidated balance sheet and related statements of income, stockholders’
equity and cash flows showing the financial condition of Holdings and its
consolidated subsidiaries as of the close of such fiscal quarter and the
results of its operations and the operations of such Persons during such fiscal
quarter and the then elapsed portion of the fiscal year, and for each fiscal
quarter occurring after the first anniversary of the Closing Date, comparative
figures for the same periods in the immediately preceding fiscal year, all
certified by one of its Financial Officers as fairly presenting in all material
respects the financial condition and results of operations of Holdings and its
consolidated subsidiaries on a consolidated basis in accordance with GAAP,
subject to normal year-end audit adjustments and the absence of footnotes
(it being agreed that the furnishing of the Borrower’s quarterly report on Form
10-Q for such quarter, as filed with the SEC, will satisfy the Borrower’s
obligation under this Section 5.04(b) with respect to such quarter);


(c)                                  concurrently
with any delivery of Section 5.04  Financials, a certificate of a
Financial Officer of the Borrower (i) certifying that to such Financial Officer’s
knowledge, no Event of Default or Default has occurred and is continuing or, if
such an Event of Default or Default has occurred and is continuing, reasonably
specifying the nature thereof, (ii) setting forth (x) to the extent applicable
computations in reasonable detail demonstrating each of the Total Net Leverage
Ratio, the Senior Secured Net Leverage Ratio and the Guaranteed Net Leverage
Ratio as of the date of such financial statements and (y) in the case of a
certificate delivered with the financial statements required by paragraph (a)
above (commencing with the fiscal year ended December 31, 2008), setting forth
the Borrower’s calculation of Excess Cash Flow;


(d)                                 not later than
the fifth Business Day after the 90th day after the commencement of each fiscal
year of the Borrower, copy of the projections by the Borrower of the operating
budget and cash flow budget of the Borrower and its subsidiaries for such
fiscal year, such projections to be accompanied by a certificate of a Financial
Officer of the Borrower to the effect that such Financial Officer believes such
projections to have been prepared on the basis of reasonable assumptions;


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


(f)                                   simultaneously
with the delivery of any Section 5.04 Financials, management’s discussion and
analysis of the important operational and financial developments of the
Borrower and its Restricted Subsidiaries during the respective fiscal year or
fiscal quarter, as the case may be (it being agreed that the furnishing of the
Borrower’s annual report on Form 10-K or quarterly report on Form 10-Q, as
filed with the SEC, will satisfy the Borrower’s obligations under this Section
5.04(f));


 


100

















 


(g)                                  promptly after
the reasonable request by any Lender (through the Administrative Agent), all
documentation and other information that such Lender reasonably requests in
order to comply with its ongoing obligations under applicable “know your
customer” and anti-money laundering rules and regulations, including the USA
PATRIOT Act;


(h)                                 promptly, from
time to time, such other information regarding the operations, business, legal
or corporate affairs and financial condition of any Loan Party or any
Restricted Subsidiary, as the Administrative Agent or any Lender (through the
Administrative Agent) may reasonably request; (other than information which is
subject to an attorney-client privilege or would result in a breach of a
confidentiality obligation of Holdings or any Restricted Subsidiary to any
other Person or applicable law); and


(i)                                     Within the time
frame set forth in Section 7.02, on each occasion permitted therein, a
Notice of Intent to Cure if a Cure Right will be exercised thereunder.


Information required to
be delivered pursuant to this Section 5.04 shall be deemed to have been
delivered if such information, or one or more annual or quarterly reports
containing such information, shall have been posted by the Administrative Agent
on a SyndTrak, IntraLinks or similar site to which the Lenders have been
granted access or shall be available (the “Platform”) on the website of
the Securities and Exchange Commission at http://www.sec.gov or on the website
of the Borrower.  Information required to
be delivered pursuant to this Section may also be delivered by electronic
communications pursuant to procedures approved by the Administrative Agent.  Each Lender shall be solely responsible for
timely accessing posted documents and maintaining its copies of such documents.


The Borrower hereby acknowledges that (a) the Administrative Agent will
make available to the Issuing Banks and the Lenders materials and/or
information provided by or on behalf of the Borrower hereunder (collectively, “Borrower
Materials”) by posting the Borrower Materials on the Platform and (b)
certain of the Lenders (each, a “Public Lender”) may have personnel who
do not wish to receive material non-public information with respect to the
Borrower or its Affiliates, or the respective securities of any of the
foregoing, and who may be engaged in investment and other market-related
activities with respect to such Persons’ securities.  The Borrower hereby agrees that it will use
commercially reasonable efforts to identify that portion of the Borrower
Materials that may be distributed to the Public Lenders and that (w) all such
Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at
a minimum, shall mean that the word “PUBLIC” shall appear prominently on the
first page thereof; (x) by marking Borrower Materials “PUBLIC,” each of
Holdings and the Borrower shall be deemed to have authorized the Administrative
Agent, the Issuing Banks and the Lenders to treat such Borrower Materials as
not containing any material non-public information (although it may be
sensitive and proprietary) with respect to Holdings, the Borrower or their
respective securities for purposes of United States Federal and state
securities laws (provided, however, that to the extent such
Borrower Materials constitute Information, they shall be treated as set forth
in Section 9.16); provided, that the Lenders agree that neither
the Borrower nor any of its management and affiliates shall have any liability
of any kind or nature resulting from the use of the Borrower Materials posted
on the portion of the Platform designated as “Public Investor”; (y) all
Borrower Materials marked “PUBLIC” are permitted to be made available through a


 


101

















 


portion of the Platform
designated “Public Investor”; and (z) the Administrative Agent shall be
entitled to treat any Borrower Materials that are not marked “PUBLIC” as being
suitable only for posting on a portion of the Platform not designated “Public
Investor.”


Section 5.05.  Notices.  Promptly upon any Responsible Officer of the
Borrower becoming aware thereof, furnish to the Administrative Agent notice of
the following:


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


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


Section 5.06.  Information Regarding Collateral.  Furnish to the Administrative Agent notice of
any change on or prior to the later to occur of (a) 30 days following the
occurrence of such change and (b) the earlier of the date of the required
delivery of the Pricing Certificate following such change and the date which is
45 days after the end of the most recently ended fiscal quarter following such
change (i) in any Loan Party’s legal name, (ii) in the jurisdiction of
organization or formation of any Loan Party or (iii) in any Loan Party’s
identity or corporate structure.


Section 5.07.  Maintaining Records; Access to Properties
and Inspections.  Keep proper books
of record and account in which full, true and correct entries in conformity
with GAAP are made.  Permit any
representatives designated by the Administrative Agent or any Lender to visit
and inspect during normal business hours the corporate, financial and operating
records and the properties of the Borrower or the Restricted Subsidiaries upon
reasonable advance notice, and to make extracts from and copies of such
records, and permit any such representatives to discuss the affairs, finances
and condition of such Person with the officers thereof and independent
accountants therefor; provided that (x) the Administrative Agent shall
give the Borrower an opportunity to participate in any discussions with its
accountants; (y) in the absence of the existence of an Event of Default, (i)
only the Administrative Agent on behalf of the Lenders may exercise the rights
of the Administrative Agent and the Lenders under this Section 5.07 and
(ii) the Administrative Agent shall not exercise its rights under this Section
5.07 more often than two times during any fiscal year and only one such
time shall be at the Borrower’s expense; and (z) when an Event of Default
exists, the Administrative Agent or any Lender and their respective designees
may do any of the foregoing at the reasonable expense of the Borrower at any
time during normal business hours and upon reasonable advance notice.


Section 5.08.  Use of Proceeds.  The proceeds of the Term Loans, together with
the Equity Investment and the New Senior Notes shall be used solely to pay the
cash consideration for the Merger, to repay the Existing Debt and to pay
Transaction Expenses.  The proceeds of
the Revolving Loans and Swingline Loans, shall be used for working capital,
general corporate purposes (including Permitted Acquisitions) and any other
purpose not prohibited by this Agreement; provided, however, that
up to $50,000,000 of the proceeds from Revolving Loans may be drawn on the
Closing Date and used to pay a portion of the cash consideration for the
Merger, repay a portion of the Existing Debt and to pay a portion of the
Transaction Expenses.  The Letters of
Credit shall be used solely to support obligations of the Borrower and 


 


102

















 


its subsidiaries incurred
for working capital, general corporate purposes and any other purpose not
prohibited by this Agreement.


Section 5.09.  Further Assurances.  (a) 
From time to time duly authorize, execute and deliver, or cause to be
duly authorized, executed and delivered, such additional instruments,
certificates, financing statements, agreements or documents, and take all
reasonable actions (including filing UCC and other financing statements but
subject to the limitations set forth herein or in the Security Documents), as
the Administrative Agent or the Collateral Agent may reasonably request, for
the purposes of perfecting the Liens granted in favor of the Collateral Agent
on behalf of the Secured Parties with respect to the Collateral (or with
respect to any additions thereto or replacements or proceeds or products
thereof or with respect to any other property or assets hereafter acquired by
the Borrower or any other Loan Party which constitutes Collateral) pursuant
hereto or thereto, to the extent such perfection is required by the Guarantee
and Collateral Agreement.


(b)                                 With respect to
any assets acquired by any Loan Party after the Closing Date of the type
constituting Collateral under the Guarantee and Collateral Agreement and as to
which the Collateral Agent, for the benefit of the Secured Parties, does not
have a perfected first priority (subject only to Permitted Liens, to the extent
any such Permitted Liens would have priority over the Liens in favor of the
Administrative Agent pursuant to any applicable law) security interest but
which the Loan Parties are required to provide such perfected security interest
under the terms of the Guarantee and Collateral Agreement, on or prior to the
later to occur of (i) 30 days following such acquisition and (ii) the earlier
of the date of the required delivery of the Pricing Certificate following the
date of such acquisition and the date which is 45 days after the end of
the most recently ended fiscal quarter (or such longer period as to which the
Administrative Agent may consent (such consent not to be unreasonably withheld
or delayed)), (x) execute and deliver to the Administrative Agent and the
Collateral Agent such amendments to the Guarantee and Collateral Agreement or
such other Security Documents as the Administrative Agent deems necessary to
grant to the Collateral Agent, for the benefit of the Secured Parties, a
security interest in such Collateral and (y) take all commercially reasonable
actions necessary to grant to, or continue on behalf of, the Collateral Agent,
for the benefit of the Secured Parties, a perfected first priority security
interest in such Collateral (subject only to Permitted Liens, to the extent any
such Permitted Liens would have priority over the Liens in favor of the
Administrative Agent pursuant to any applicable law), including the filing of
UCC financing statements in such jurisdictions as may be required by the
Guarantee and Collateral Agreement or as may be reasonably requested by the
Administrative Agent or the Collateral Agent.


(c)                                  With respect to any wholly
owned Restricted Subsidiary (other than a Foreign Subsidiary or an Excluded
Subsidiary or a Domestic Subsidiary that is a disregarded entity for U.S.
federal income tax purposes owned by a non-disregarded non-U.S. entity) created
or acquired after the Closing Date, on or prior to the later to occur of (i) 30
days following the date of such creation or acquisition and (ii) the earlier of
the date of the required delivery of the Pricing Certificate following such
creation or acquisition and the date which is 45 days after the end of the most
recently ended fiscal quarter (or such longer period as to which the
Administrative Agent may consent (such consent not to be unreasonably withheld
or delayed), (x) execute and deliver to the Administrative Agent and the
Collateral Agent such amendments 


 


103

















 


to the Guarantee and
Collateral Agreement as the Administrative Agent deems necessary to grant to
the Collateral Agent, for the benefit of the relevant Secured Parties, a valid,
perfected first priority (subject only to Permitted Liens, to the extent any
such Permitted Liens would have priority over the Liens in favor of the
Administrative Agent pursuant to any applicable law) security interest in the
Equity Interests in such new subsidiary that are owned by any of the Loan
Parties to the extent the same constitute Collateral under the terms of the
Guarantee and Collateral Agreement and such perfection is required, (y) deliver
to the Collateral Agent the certificates, if any, representing any of such
Equity Interests that constitute certificated securities, together with undated
stock powers, in blank, executed and delivered by a duly authorized officer of
the pledgor and (z) cause such Restricted Subsidiary (A) to become a party
to the Guarantee and Collateral Agreement, to the extent applicable, each
Intellectual Property Security Agreement and (B) to take such actions necessary
to grant to the Collateral Agent, for the benefit of the Secured Parties, a
perfected first priority (subject only to Permitted Liens, to the extent any
such Permitted Liens would have priority over the Liens in favor of the
Administrative Agent pursuant to any applicable law, and with respect to
Collateral that is intellectual property only to the extent that such first
priority Liens can be obtained by filing of each Intellectual Property Security
Agreement) security interest in any assets required to be Collateral subject to
a perfected first priority security interest pursuant to the Guarantee and
Collateral Agreement and each Intellectual Property Security Agreement with
respect to such Restricted Subsidiary, including, if applicable, the recording
of instruments in the United States Patent and Trademark Office and the United
States Copyright Office and the filing of UCC financing statements in such
jurisdictions as may be required by the Guarantee and Collateral Agreement, any
applicable Intellectual Property Security Agreement or as may be reasonably
requested by the Administrative Agent or the Collateral Agent.


(d)                                 With respect to any Equity
Interests in any Foreign Subsidiary that are acquired after the Closing Date by
any Loan Party (including as a result of formation of a new Foreign
Subsidiary), on or prior to the later to occur of (i) 30 days following the
date of such acquisition and (ii) the earlier of the date of the required
delivery of the Pricing Certificate following the date of such acquisition and
the date which is 45 days after the end of the most recently ended fiscal
quarter (or such longer period as to which the Administrative Agent may
consent), (x) execute and deliver to the Administrative Agent and the
Collateral Agent such amendments to the Guarantee and Collateral Agreement as
the Administrative Agent reasonably deems necessary in order to grant to the
Collateral Agent, for the benefit of the relevant Secured Parties, a perfected
first priority security interest (subject only to Permitted Liens, to the
extent any such Permitted Liens would have priority over the Liens in favor of
the Administrative Agent pursuant to any applicable law) in the Equity
Interests in such Foreign Subsidiary that are owned by the Loan Parties to the
extent the same constitutes Collateral under the terms of the Guarantee and
Collateral Agreement (provided that (A) only first-tier Foreign
Subsidiaries owned directly by such Loan Party shall be pledged by such Loan
Party, and (B) only 65% of such Equity Interests shall secure the Obligations)
and (y) to the extent permitted by applicable law, deliver to the
Collateral Agent any certificates representing any such Equity Interests that
constitute certificated securities, together with undated stock powers, in
blank, executed and delivered by a duly authorized officer of the pledgor, as
the case may be, and take such other action as may be reasonably requested by
the Administrative Agent or the Collateral Agent to perfect the security
interest of the Collateral Agent thereon (but subject to the limitations set
forth in the Security Documents).


 


104

















 


(e)                                  If, at any time
and from time to time after the Closing Date, any wholly-owned Domestic
Subsidiary that is not a disregarded entity for U.S. federal income tax
purposes owned by a non-disregarded non-U.S. entity ceases to constitute an
Immaterial Subsidiary in accordance with the definition of “Immaterial
Subsidiary”, then the Borrower shall cause such subsidiary to become an
additional Loan Party and take all the actions contemplated by Section
5.09(c) as if such subsidiary were a newly-formed wholly-owned Domestic
Subsidiary of the Borrower.


(f)                                   With respect to
any fee interest in any real property located in the United States with a book
value in excess of $7,500,000 (as reasonably estimated by the Borrower)
acquired after the Closing Date by any Loan Party, within 90 days following the
date of such acquisition (or such longer period as to which the Administrative
Agent may consent (such consent not to be unreasonably withheld or delayed))
(i) execute and deliver Mortgages in favor of the Collateral Agent, for the
benefit of the Secured Parties, covering such real property and complying with
the provisions herein and in the Security Documents and (ii) make, execute,
endorse, acknowledge, file and/or deliver to the Collateral Agent from time to
time such vouchers, invoices, schedules, confirmatory assignments, conveyances,
financing statements, transfer endorsements, powers of attorney, certificates,
real property surveys, reports, landlord waivers, bailee agreements, and other
assurances or instruments and take such further steps relating to the
Collateral covered by any of the Mortgages as the Collateral Agent may
reasonably require.  Furthermore, the
Borrower will, and will cause the other Loan Parties that are Subsidiaries of
the Borrower to, deliver to the Collateral Agent such opinions of counsel,
title insurance and other related documents as may be reasonably requested by
the Administrative Agent to assure itself that this Section 5.09 (f) has
been complied with.


(g)                                  Furthermore, to
the extent Indebtedness outstanding under the Loans shall at any time be more
than the amount originally set forth in any Mortgage on any Mortgaged Property
located in the State of New York or to the extent otherwise required by law to
grant, preserve, protect or perfect the Liens created by such Mortgage and the
validity or priority thereof, the Borrower will, and will cause each of its
applicable subsidiaries to, promptly take all such further actions including
the payment of any additional mortgage recording taxes, fees, charges, costs
and expenses required so to grant, preserve, protect or perfect the Liens
created by such Mortgage to the maximum amount of Indebtedness by its terms
secured thereby and the validity or priority of any such Lien.


Notwithstanding anything to the contrary in this Section 5.09 or
any other Security Document (1) the Collateral Agent shall not require the
taking of a Lien on, or require the perfection of any Lien granted in, those
assets as to which the cost of obtaining or perfecting such Lien (including any
mortgage, stamp, intangibles or other tax or expenses relating to such Lien) is
excessive in relation to the benefit to the Lenders of the security afforded
thereby as reasonably determined by the Borrower and the Administrative Agent,
(2) Liens required to be granted and perfected pursuant to this Section 5.09
shall be subject to exceptions and limitations consistent with those set forth
in the Security Documents as in effect on the Closing Date (to the extent
appropriate in the applicable jurisdiction) and (3) no Lien on the “Capital
Stock” of any “Significant Subsidiary,” each as defined in the Existing Notes
Documentation shall be required to be granted pursuant to the Loan Documents
until such time as the Existing Notes are repaid in full or otherwise defeased
in accordance with the Existing Notes Indentures (the date of such 


 


105

















 


repayment in full or
defeasance, the “Existing Notes Termination Date”).  On or prior to the later to occur of (i) 30
days following the Existing Notes Termination Date and (ii) the earlier of the
date of the required delivery of the Pricing Certificate following the Existing
Notes Termination Date and the date which is 45 days after the end of the most
recently ended fiscal quarter (or such longer period as to which the
Administrative Agent may consent), the Borrower and the other Loan Parties
shall (x) execute and deliver to the Administrative Agent and the Collateral
Agent such amendments to the Guarantee and Collateral Agreement as the
Administrative Agent reasonably deems necessary in order to grant to the
Collateral Agent, for the benefit of the relevant Secured Parties, a perfected
first priority security interest (subject only to Permitted Liens, to the
extent any such Permitted Liens would have priority over the Liens in favor of
the Administrative Agent pursuant to any applicable law in the Equity Interests
in each such “Significant Subsidiary” (other than an Excluded Subsidiary) that
are owned by the Loan Parties to the extent the same constitutes Collateral
under the terms of the Guarantee and Collateral Agreement (provided that
(A) only first-tier Foreign Subsidiaries owned directly by such Loan Party
shall be pledged by such Loan Party and (B) only 65% of such Equity Interests
shall secure the Obligations) and (y) to the extent permitted by applicable
law, deliver to the Collateral Agent any certificates representing any such
Equity Interests that constitute certificated securities, together with undated
stock powers, in blank, executed and delivered by a duly authorized officer of
the pledgor, as the case may be, and take such other action as may be
reasonably requested by the Administrative Agent or the Collateral Agent to
perfect the security interest of the Collateral Agent thereon (but subject to
the limitations set forth herein or in the Security Documents.)


Section 5.10.  Post-Closing Obligations.  None.


Section 5.11.  Designation of Subsidiaries.  (a) 
The Borrower may designate any subsidiary (including any existing
subsidiary and any newly acquired or newly formed subsidiary) to be an
Unrestricted Subsidiary unless such subsidiary or any of its subsidiaries owns
any Equity Interests or Indebtedness of, or owns or holds any Lien on, any
property of, the Borrower or any Restricted Subsidiary (other than solely any
Unrestricted Subsidiary of the subsidiary to be so designated); provided
that


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


(ii)                                  such
designation complies with the covenants described in Section 6.03(c);


(iii)                               no Default or
Event of Default shall have occurred and be continuing at the time of such
designation;


(iv)                              on a pro forma basis taking into account such
designation, (x) the Borrower would  be
in compliance with Section 6.07 and (y) the Borrower could incur at
least $1.00 of additional Indebtedness pursuant to the Total Net Leverage Ratio
test described in Section 6.01(a); and


 


106

















 


(v)                                 each of:


(A)                               the subsidiary to be so designated; and


(B)                               its subsidiaries


has not at the time of
designation, and does not thereafter, incur any Indebtedness pursuant to which
the lender has recourse to any of the assets of the Borrower or any Restricted
Subsidiary.  Furthermore, no subsidiary
may be designated as an Unrestricted Subsidiary hereunder unless it is also
designated as an “Unrestricted Subsidiary” for purposes of the New Senior Notes
or any Junior Financing.


(b)                                 Borrower may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that, immediately after giving effect to such designation, no Default or Event
of Default shall have occurred and be continuing and, on a pro forma basis taking into account such designation, (x) the
Borrower would be in compliance with Section 6.07 and (y) the Borrower
could incur at least $1.00 of additional Indebtedness pursuant to the Total Net
Leverage Ratio test described in Section 6.01(a).


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


Section 5.12.  Permitted Acquisitions.  (a) 
Subject to the provisions of this Section 5.12 and the
requirements contained in the definition of Permitted Acquisition, the Borrower
and its Restricted Subsidiaries may from time to time effect Permitted
Acquisitions, so long as (in each case except to the extent the Required
Lenders otherwise specifically agree in writing in the case of a specific
Permitted Acquisition):  (i) no Default
or Event of Default shall have occurred and be continuing at the time of the
consummation of the proposed Permitted Acquisition or immediately after giving
effect thereto; (ii) the Borrower shall have given to the Administrative Agent
and the Lenders at least five Business Days’ prior written notice of any
Permitted Acquisition (or such shorter period of time as may be reasonably
acceptable to the Administrative Agent), which notice shall describe in
reasonable detail the principal terms and conditions of such Permitted
Acquisition; (iii) the Borrower shall be in compliance on a pro forma basis with the financial
covenant set forth in Section 6.07 at the time such Permitted
Acquisition is consummated, as if such Permitted Acquisition and related
Transactions (including the incurrence of Indebtedness) had occurred at the
beginning of the most recently ended four fiscal quarters for which Section
5.04 Financials have been delivered to the Administrative Agent; and (iv) the
Borrower shall have delivered to the Administrative Agent an Officer’s
Certificate certifying compliance with the requirements of preceding clauses
(i) through (iii) inclusive, and containing the calculations (in
reasonable detail) required by preceding clause (iii).


(b)                                 At the time of each
Permitted Acquisition involving the creation or acquisition of a Subsidiary, or
the acquisition of capital stock or other Equity Interest of any 


 


107

















 


Person, the capital stock or
other Equity Interests thereof created or acquired in connection with such
Permitted Acquisition shall be pledged for the benefit of the Secured Parties
pursuant to (and to the extent required by) Section 5.09 of the Credit
Agreement and the terms of the Guarantee and Collateral Agreement.


(c)                                  The Borrower
will cause each Subsidiary which is formed to effect, or is acquired pursuant
to, a Permitted Acquisition to comply with, and to execute and deliver all of
the documentation as and to the extent required by, Section 5.09, to the
reasonable satisfaction of the Administrative Agent.


(d)                                 The
consummation of each Permitted Acquisition shall be deemed to be a
representation and warranty by each of Holdings and the Borrower that the
certifications pursuant to this Section 5.12 are true and correct in all
material respects and that all conditions thereto have been satisfied (or
waived) and that same is permitted in accordance with the terms of this
Agreement, which representation and warranty shall be deemed to be a representation
and warranty for all purposes hereunder, including, without limitation, Articles
III and VII.


ARTICLE VI


 


Negative Covenants


The Borrower and,
solely with respect to Sections 6.04(c) and 6.09(b), Holdings
covenants and agrees that, until the Termination Date, will not, nor will they
cause or permit any of the Restricted Subsidiaries to:


Section 6.01.  Limitation on
Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred
Stock.  (a)  Directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise (collectively, “incur” and collectively, an “incurrence”)
with respect to any Indebtedness (including Acquired Indebtedness) and the
Borrower and the Restricted Guarantors will not issue any shares of
Disqualified Stock and will not permit any Restricted Subsidiary that is not a
Guarantor to issue any shares of Disqualified Stock or Preferred Stock; provided,
however, that the Borrower and the Restricted Guarantors may incur
Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified
Stock, and any Restricted Subsidiary that is not a Guarantor may incur
Indebtedness (including Acquired Indebtedness), and issue shares of
Disqualified Stock or issue shares of Preferred Stock, (A) if the Total Net
Leverage Ratio at the time such additional Indebtedness is incurred or such
Disqualified Stock or Preferred Stock is issued would have been no greater than
7:00 to 1.00, determined on a pro forma
basis (including a pro forma application of
the net proceeds therefrom), as if the additional Indebtedness had been
incurred, or the Disqualified Stock or Preferred Stock had been issued, as the
case may be, and the application of proceeds therefrom had occurred at the
beginning of the most recently ended four fiscal quarters for which
Section 5.04 Financials have been delivered to the Administrative Agent
and (B) no Event of Default shall have occurred and be continuing or would
occur as a consequence thereof; provided, further, that (x) any
incurrence of Indebtedness or issuance of Disqualified Stock or Preferred Stock
by a Restricted Subsidiary that is not a Guarantor pursuant to this paragraph
(a) is subject to the limitations of paragraph  (g) below
and (y) any Indebtedness 


 


108

















 


incurred by, or
Guaranteed by, any Restricted Guarantor pursuant to this paragraph (a) shall be
subordinated in right of payment to the Obligations.


(b)                                 The limitations
set forth in clause (a) will not apply to the following items:


(i)                                     the
Indebtedness under the Loan Documents (including any Incremental Term Loans or
increase in the Revolving Credit Commitments under Section 2.24) of the
Borrower or any of its Restricted Subsidiaries (including letters of credit
thereunder);


(ii)                                  the incurrence
by Holdings, the Borrower and any Restricted Guarantor of Indebtedness
represented by the New Senior Notes or guarantees thereof; provided that
such guarantees are subordinated in right of payment to the Obligations;


(iii)                               Indebtedness of
the Borrower and its Restricted Subsidiaries in existence on the Closing Date
(other than Indebtedness described in clauses (b)(i) and (ii) of
this Section 6.01) and set forth on Schedule 6.01 (including the
Existing Intercompany Debt);


(iv)                              Indebtedness
(including Capitalized Lease Obligations), Disqualified Stock and/or Preferred
Stock incurred by the Borrower or any of its Restricted Subsidiaries, to
finance the purchase, lease or improvement of property (real or personal) or
equipment that is used or useful in the business of the Borrower and its
Restricted Subsidiaries, whether through the direct purchase of assets or the
Capital Stock of any Person owning such assets in an aggregate principal
amount, together with any Refinancing Indebtedness in respect thereof and all
other Indebtedness, Disqualified Stock and/or Preferred Stock incurred and
outstanding under this clause (iv), not to exceed $20,000,000 at any
time outstanding so long as such Indebtedness exists at the date of such
purchase, lease or improvement, or is created within 270 days thereafter;


(v)                                 Indebtedness
incurred by the Borrower or any Restricted Subsidiary constituting
reimbursement obligations with respect to bankers’ acceptances and letters of
credit issued in the ordinary course of business, including letters of credit
in respect of workers’ compensation claims, or other Indebtedness with respect
to reimbursement type obligations regarding workers’ compensation claims, or
letters of credit in the nature of a security deposit (or similar deposit or
security) given to a lessor under an operating lease of real property under
which such Person is a lessee; provided, however, that upon the
drawing of such bankers’ acceptances and letters of credit or the incurrence of
such Indebtedness, such obligations are reimbursed within 60 days following
such drawing or incurrence or such Indebtedness is otherwise permitted
hereunder;


(vi)                              Indebtedness
arising from agreements of the Borrower or a Restricted Subsidiary providing
for indemnification, adjustment of purchase price or similar obligations, in
each case, incurred or assumed in connection with the disposition of any
business, assets or a subsidiary, other than guarantees of Indebtedness
incurred by any Person acquiring all or any portion of such business, assets or
a subsidiary for the purpose of financing such acquisition; provided, however,
that such Indebtedness is not reflected on the balance sheet (other than by
application of Interpretation Number 45 of the Financial Accounting Standards
Board (commonly known as FIN 45) as a result of an 


 


109

















 


amendment to an obligation in existence on the Closing Date) of the
Borrower or any Restricted Subsidiary (contingent obligations referred to in a
footnote to financial statements and not otherwise reflected on the balance
sheet will not be deemed to be reflected on such balance sheet for purposes of
this clause (vi));


(vii)                           Indebtedness of
(A) the Borrower to any Restricted Subsidiary and (B) any Restricted
Subsidiary to the Borrower or to any other Restricted Subsidiary; provided
that (x) any such Indebtedness owing by a Guarantor to a Restricted Subsidiary
that is not a Guarantor is expressly subordinated in right of payment to the
Obligations; (y) any such Indebtedness owing by the Borrower is expressly
subordinated in right of payment to the Obligations and (z) any subsequent
issuance or transfer of any Capital Stock or any other event which results in
any Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other
subsequent transfer of any such Indebtedness (except to the Borrower or another
Restricted Subsidiary or any pledge of such Indebtedness constituting a
Permitted Lien) shall be deemed, in each case, to be an incurrence of such
Indebtedness not permitted by this clause (vii);


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


(ix)                              Hedging
Obligations (excluding Hedging Obligations entered into for speculative
purposes) for the purpose of limiting interest rate risk with respect to any
Indebtedness permitted under this Section 6.01, exchange rate risk or
commodity pricing risk;


(x)                                 obligations in
respect of customs, stay, performance, bid, appeal and surety bonds and
completion guarantees and other obligations of a like nature provided by the
Borrower or any of its Restricted Subsidiaries in the ordinary course of
business;


(xi)                              Indebtedness or
Disqualified Stock of the Borrower or a Guarantor and Indebtedness,
Disqualified Stock or Preferred Stock of any Restricted Subsidiary that is not
a Guarantor not otherwise permitted hereunder in an aggregate principal amount
or liquidation preference, which when aggregated with the principal amount and
liquidation preference of all other Indebtedness, Disqualified Stock and
Preferred Stock then outstanding and incurred pursuant to this clause (xi),
does not at any one time outstanding exceed $150,000,000 (it being understood
that any Indebtedness, Disqualified Stock and Preferred Stock incurred pursuant
to this clause (xi) shall cease to be deemed incurred or outstanding for
purposes of this clause (xi) but shall be deemed incurred for the
purposes of Section 6.01(a) from and after the first date on which the
Borrower or such Restricted Subsidiary could have incurred such Indebtedness,
Disqualified Stock or Preferred Stock under Section 6.01(a)  and Section 6.01(g) without reliance
on this clause (xi));


 


110

















 


(xii)                           provided that no
Default shall have occurred and be continuing or would occur as a consequence
thereof, the incurrence by the Borrower or any Restricted Subsidiary of
Indebtedness, Disqualified Stock or Preferred Stock which serves to refund,
replace, extend repurchase, redeem or refinance any Indebtedness, Disqualified
Stock or Preferred Stock permitted under Section 6.01(a) and clauses
(ii), (iii), (iv) and (xiii) of this Section
6.01(b) or any Indebtedness, Disqualified Stock or Preferred Stock issued
to so refund, replace, extend, repurchase or refinance such Indebtedness,
Disqualified Stock, or Preferred Stock including, in each case, additional
Indebtedness, Disqualified Stock or Preferred Stock incurred to pay premiums
(including tender premiums), defeasance costs and fees and expenses in
connection therewith (collectively, the “Refinancing Indebtedness”)
prior to its respective maturity; provided, however, that such
Refinancing Indebtedness:


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


(B)                               to the extent such Refinancing
Indebtedness refinances (1) Indebtedness subordinated or pari passu to the Obligations, such
Refinancing Indebtedness is subordinated or pari
passu to the Obligations at least to the same extent as the Indebtedness
being refinanced or refunded or (2) Disqualified Stock or Preferred Stock, such
Refinancing Indebtedness, Disqualified Stock or Preferred Stock, respectively,
and


(C)                               shall not include:


(1)                                 Indebtedness, Disqualified Stock or
Preferred Stock of a Restricted Subsidiary that is not a Guarantor that
refinances, Indebtedness, Disqualified Stock or Preferred Stock of the
Borrower;


(2)                                 Indebtedness, Disqualified Stock or
Preferred Stock of a Restricted Subsidiary that is not a Guarantor that
refinances Indebtedness, Disqualified Stock or Preferred Stock of a Restricted
Guarantor;


(3)                                 Indebtedness, Disqualified Stock or
Preferred Stock of the Borrower or a Restricted Subsidiary that refinances
Indebtedness, Disqualified Stock or Preferred Stock of an Unrestricted
Subsidiary; or


(4)                                 in the case of the Existing Notes or any
Indebtedness, Disqualified Stock or Preferred Stock issued to refund or
refinance the Existing Notes, Indebtedness, Disqualified Stock or Preferred
Stock of any Person other than the Borrower; and


(D)                               shall not be in a principal amount in
excess of the principal amount of, premium, if any, accrued interest on, and
related fees and expenses of, the Indebtedness being refunded, replaced,
extended, repurchased, redeemed or 


 


111

















 


refinanced
(including any premium, expenses, costs and fees incurred in connection with
such refund, replacement or refinancing);


provided, further, that any incurrence of
Indebtedness or issuance of Disqualified Stock or Preferred Stock by any
Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause
(xii) (solely as it relates to Indebtedness under clause (xiii) of
this Section 6.01(b) and Section 6.01(a)) shall be subject to the
limitations set forth in Section 6.01(g) to the same extent as the
Indebtedness refinanced, refunded, repurchased, redeemed, replaced;


(xiii)                        Indebtedness,
Disqualified Stock or Preferred Stock (x) of the Borrower or a Restricted
Subsidiary (other than a Foreign Subsidiary) incurred to finance an
acquisition, (y) of Persons (other than foreign Persons) that are acquired by
the Borrower or any Restricted Subsidiary or Persons merged into the Borrower
or a Restricted Subsidiary (other than a Foreign Subsidiary) in accordance with
the terms of this Agreement or (z) that is assumed by the Borrower or any Restricted
Subsidiary (other than a Foreign Subsidiary) in connection with such
acquisition so long as:


(A)                               no Default exists or shall result
therefrom;


(B)                               any Indebtedness, Disqualified Stock or
Preferred Stock incurred in reliance on clause (x) above shall not be
Secured Indebtedness and shall not mature (and shall not be mandatorily
redeemable in the case of Disqualified Stock) or require any payment of
principal (other than in a manner consistent with the terms of the New Senior
Notes Documentation), in each case, prior to the date which is 91 days after
the Term Loan Maturity Date;


(C)                               any Indebtedness, Disqualified
Stock or Preferred Stock incurred in reliance on clause (y) or (z)
above shall not have been incurred in contemplation of such acquisition and
either (1) the aggregate principal amount of such Indebtedness constituting
Secured Indebtedness, together with all Refinancing Indebtedness in respect
thereof, shall not exceed $100,000,000 or (2) after giving pro forma effect to such acquisition or merger, the Total Net
Leverage Ratio is less than the Total Net Leverage Ratio immediately prior to
such acquisition or merger; and


(D)                               after giving pro forma effect to such acquisition or merger either (1) the Total
Net Leverage Ratio is less than the Total Net Leverage Ratio test immediately
prior to such acquisition or merger or (2) the Borrower would be permitted to
incur at least $1.00 of additional Indebtedness pursuant to the Total Net
Leverage Ratio test described in Section 6.01(a);


provided
that any incurrence of Indebtedness or issuance of Disqualified Stock or
Preferred Stock by a Restricted Subsidiary (I) that is not a Guarantor pursuant
to this clause (xiii) is subject to the limitations set forth in Section
6.01(g) below and (II) which is a Restricted Guarantor pursuant to clause
(x) above, shall be subordinated in right of payment to the Obligations;


 


112

















 


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


(xv)                          Indebtedness of
the Borrower or any of its Restricted Subsidiaries supported by a Letter of
Credit in a principal amount not to exceed the stated amount of such Letter of
Credit;


(xvi)                       (A) any
guarantee by the Borrower or a Restricted Subsidiary of Indebtedness or other
obligations of any Restricted Subsidiary so long as such Indebtedness or other
obligations are permitted under this Agreement, or (B) any guarantee by a
Restricted Subsidiary of Indebtedness or other obligations of the Borrower
(other than the Existing Notes); provided that, in each case, (x) such
Restricted Subsidiary shall comply with its obligations under Section 5.09
and (y) in the case of any guarantee of Indebtedness or other obligations of
the Borrower or any Subsidiary Guarantor by any Restricted Subsidiary that is
not a Subsidiary Guarantor, such Restricted Subsidiary becomes a Subsidiary
Guarantor under this Agreement;


(xvii)                    Indebtedness issued by the
Borrower or any of its Restricted Subsidiaries to future, current or former
officers, directors, employees and consultants thereof or any direct or
indirect parent thereof, their respective estates, heirs, family members,
spouses or former spouses, in each case to finance the purchase or redemption
of Equity Interests of the Borrower, a Restricted Subsidiary or any of their
respective direct or indirect parent companies to the extent described in Section
6.03(b)(iv);


(xviii)                 the incurrence by a
Broker-Dealer Subsidiary of Indebtedness incurred in connection with the
settlement of securities transactions in the ordinary course of business in an
amount not to exceed $50,000,000 at any one time outstanding;


(xix)                       Indebtedness of
the Borrower or any of its subsidiaries incurred to finance insurance premiums
in the ordinary course of business;


(xx)                          Indebtedness
representing deferred compensation to employees of the Borrower or any
Restricted Subsidiary incurred in the ordinary course of business;


(xxi)                       Indebtedness,
Disqualified Stock or Preferred Stock of Foreign Subsidiaries in an aggregate
amount not to exceed $50,000,000 at any time outstanding; and


(xxii)                    cash management obligations
and Indebtedness in respect of netting services and employee credit card
programs, or similar arrangements in connection with cash management and
deposit accounts or securities accounts.


(c)                                  For purposes of
determining compliance with this Section 6.01:


(i)                                     in the event
that an item of Indebtedness, Disqualified Stock or Preferred Stock (or any
portion thereof) meets the criteria of more than one of the categories of 


 


113

















 


permitted Indebtedness, Disqualified Stock or Preferred Stock described
in Section 6.01(b) or is entitled to be incurred pursuant to Section
6.01(a), the Borrower, in its sole discretion, may classify or reclassify
such item of Indebtedness, Disqualified Stock or Preferred Stock (or any
portion thereof) and will only be required to include the amount and type of
such Indebtedness, Disqualified Stock or Preferred Stock in one of the above
permitted clauses; and


(ii)                                  at the time of
incurrence or permitted reclassification, the Borrower will be entitled to
divide and classify an item of Indebtedness in one or more types of
Indebtedness, Disqualified Stock or Preferred Stock described in Section
6.01(a) or (b).


(d)                                 The accrual of
interest, the accretion of accreted value and the payment of interest or
dividends in the form of additional Indebtedness, Disqualified Stock or
Preferred Stock, as applicable, will not be deemed to be an incurrence of
Indebtedness, Disqualified Stock or Preferred Stock for purposes of this Sections
6.01 and 6.02.


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


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


(g)                                  Notwithstanding anything to
the contrary contained in Section 6.01(a) or (b), no Restricted
Subsidiary of the Borrower that is not a Subsidiary Guarantor shall incur any
Indebtedness or issue any Disqualified Stock or Preferred Stock in reliance on Section
6.01(a) or (b)(xiii), or (b)(xxi) (the “Limited
Non-Guarantor Debt Exceptions”) if the amount of such Indebtedness,
Disqualified Stock or Preferred Stock, when aggregated with the amount of all
other Indebtedness, Disqualified Stock or Preferred Stock outstanding at any
time under such Limited Non-Guarantor Debt Exceptions, together with any
Refinancing Indebtedness in respect thereof, would exceed $100,000,000; provided
that in no event shall any Indebtedness, Disqualified Stock or Preferred Stock
of any Restricted Subsidiary that is not a Subsidiary Guarantor (i) existing at
the time it became a Restricted Subsidiary or (ii) assumed in connection with
any acquisition, merger or acquisition of minority interests of a
non-Wholly-Owned Subsidiary (and in the case of clauses (i) and (ii),
not created in contemplation of such Person becoming a Restricted Subsidiary or
such acquisition, merger or acquisition of minority 


 


114

















 


interests) be deemed to be
Indebtedness outstanding under the Limited Non-Guarantor Debt Exceptions for
purposes of this Section 6.01(g).


Section 6.02.  Liens. 
Directly or indirectly, create, incur, assume or suffer to exist any
Lien (except Permitted Liens) on any asset or property of the Borrower or any
Restricted Subsidiary, or any income or profits therefrom.


Section 6.03.  Restricted Payments.  Directly or indirectly, make any Restricted
Payment, other than:


(a)                                 Restricted
Payments in an amount, together with the aggregate amount of all other
Restricted Payments made by the Borrower and its Restricted Subsidiaries after
the Closing Date (including Restricted Payments permitted by clauses  (i),
(ii) (with respect to the payment of dividends on Refunding Capital
Stock pursuant to clause (C) thereof only), (vi)(C) and (viii) of Section
6.03(b), but excluding all other Restricted Payments permitted by Section
6.03(b)) not to exceed the Restricted Payment Applicable Amount; provided
that (i) no Default or Event of Default shall have occurred and be continuing
or would occur as a consequence thereof; (ii) immediately after giving effect
to such transaction, the Borrower is in compliance on a pro forma basis with the financial covenant set forth in Section
6.07, determined on the last day of the fiscal quarter last ended prior
thereto for which Section 5.04 Financials have been delivered to the
Administrative Agent; and (iii) unless the proceeds of such Restricted Payment
are being utilized to service Indebtedness or Preferred Stock of any direct or
indirect parent company of the Borrower incurred after the Closing Date the
proceeds of which were contributed to the common equity of the Borrower and the
aggregate amount of such Restricted Payment does not exceed the cash proceeds
so contributed, immediately after giving effect to such transaction on a pro forma basis, the Borrower could incur
$1.00 of additional Indebtedness pursuant to the Total Net Leverage Ratio test
described in Section 6.01(a).


(b)                                 Section 6.03(a) will not
prohibit:


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


(ii)                                  (A)                               the redemption, prepayment, repurchase, retirement or
other acquisition of any (1) Equity Interests (“Treasury Capital Stock”)
of the Borrower or any Restricted Subsidiary or Subordinated Indebtedness of
the Borrower or any Guarantor or (2) Equity Interests of any direct or indirect
parent company, in the case of each of clause (1) and (2), in exchange for, or
out of the proceeds of the substantially concurrent sale (other than to the
Borrower or a Restricted Subsidiary) of, Equity Interests of the Borrower, or
any direct or indirect parent company to the extent contributed to the capital
of the Borrower or any Restricted Subsidiary (in each case, other than any
Disqualified Stock) (“Refunding Capital Stock”), (B) the declaration and
payment of dividends on the Treasury Capital Stock out of the proceeds of the
substantially concurrent sale (other than to the Borrower
or a Restricted Subsidiary) of, Equity Interests of the Borrower, or any direct
or indirect parent company to the extent contributed to the capital of the
Borrower or any Restricted Subsidiary (in each case, other than any
Disqualified Stock) (“Refunding Capital Stock”), (B) the declaration and
payment of dividends on the Treasury Capital Stock out of the proceeds of the
substantially concurrent sale


 


115
















 


(other than to the Borrower or a Restricted
Subsidiary) of the Refunding Capital Stock, and (C) if immediately prior to the
retirement of Treasury Capital Stock, the declaration and payment of dividends
thereon was permitted under clauses (vi)(A) or (B) of this Section
6.03(b), the declaration and payment of dividends on the Refunding Capital
Stock (other than Refunding Capital Stock the proceeds of which were used to
redeem, repurchase, retire or otherwise acquire any Equity Interests of any
direct or indirect parent company of the Borrower) in an aggregate amount per
year no greater than the aggregate amount of dividends per annum that were
declarable and payable on such Treasury Capital Stock immediately prior to such
retirement;


(iii)          the redemption, prepayment, repurchase or other acquisition
or retirement of the Existing Notes due 2015, the New Senior Notes or
Subordinated Indebtedness of the Borrower or a Restricted Guarantor made by
exchange for, or out of the proceeds of the substantially concurrent sale of,
new Indebtedness of the Borrower or a Restricted Guarantor, as the case may be,
which is incurred in compliance with Section 6.01 so long as:


(I)            the principal amount (or accreted
value, if applicable) of such new Indebtedness does not exceed the principal
amount of (or accreted value, if applicable), plus any accrued and
unpaid interest on, the Indebtedness being so redeemed, repurchased, acquired
or retired for value, plus the amount of any premium required to be paid
under the terms of the instrument governing the Indebtedness being so redeemed,
repurchased, acquired or retired and any fees and expenses incurred in
connection with the issuance of such new Indebtedness;


(II)           solely in the case of Subordinated
Indebtedness, such new Indebtedness is subordinated to the Obligations at least
to the same extent as such Subordinated Indebtedness so purchased, exchanged,
redeemed, prepaid, repurchased, acquired or retired for value;


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


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


(V)           redemptions,
prepayments, repurchases or other acquisitions or retirements of the Existing
Notes due 2015 pursuant to this clause (iii) shall be permitted only if (a)(x)
the Guaranteed Net Leverage Ratio at the time of such prepayment, determined on
a pro  forma basis is not in excess of (I) the Guaranteed Net
Leverage Ratio of 7.2:1.0 or (y) such indebtedness is Refinancing Indebtedness
incurred in accordance with Section 6.01(b)(xii) in respect of the
Existing Notes due 2015 being redeemed, prepared, repurchased or otherwise
acquired or retired, (b)  no Default
shall have occurred and be continuing or


 


116

















 


would occur as a
consequence thereof, and (c) immediately after giving effect to such
transaction, the Borrower is in compliance on a pro
forma basis with the financial covenant set forth in Section 6.07,
determined on the last day of the fiscal quarter last ended for which Section
5.04 Financials have been delivered to the Administrative Agent;


(iv)          a Restricted Payment to pay for the repurchase, retirement,
redemption or other acquisition or retirement for value of Equity Interests
(other than Disqualified Stock) of the Borrower or any direct or indirect
parent company held by any future, present or former employee, director or
consultant (or any of their successors, heirs, estates or assigns) of the
Borrower, any of its Subsidiaries or any of their respective direct or indirect
parent companies pursuant to any management unit purchase agreement, management
equity plan or stock option plan or any other management or employee benefit
plan or agreement; provided, however, that the aggregate
Restricted Payments made under this clause (iv) do not exceed in any
calendar year $25,000,000 (with unused amounts in any calendar year being
carried over to succeeding calendar years subject to a maximum of $50,000,000
in any calendar year); provided, further, that such amount in any
calendar year may be increased by an amount not to exceed:


(A)          the cash proceeds from the sale of
Equity Interests (other than Disqualified Stock and Equity Cure Proceeds) of
the Borrower and, to the extent contributed to the capital of the Borrower,
Equity Interests of any of any direct or indirect parent company, in each case
to members of management, employees, officers, directors or consultants of the
Borrower, any of its subsidiaries or any of their respective direct or indirect
parent companies that occurs after the Closing Date (other than Equity
Interests the proceeds of which are used to fund the Transactions or to fund a
Cure Right), to the extent the cash proceeds from the sale of such Equity
Interests have not otherwise been applied to the payment of Restricted Payments
by virtue of Section 6.03(a); plus


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


(C)           the amount of any Restricted Payments
previously made with the cash proceeds described in clauses (A) and (B)
of this clause (iv);


and provided, further,
that cancellation of Indebtedness owing to the Borrower from members of
management, officers, directors, employees of the Borrower, any of its
subsidiaries or any direct or indirect parent company in connection with a
repurchase of Equity Interests of the Borrower or any direct or indirect parent
company will not be deemed to constitute a Restricted Payment for purposes of
this Agreement;


(v)           the declaration and payment of
dividends to holders of any class or series of Disqualified Stock of the
Borrower or any of its Restricted Subsidiaries issued in accordance with Section
6.01; provided, however, that immediately after giving effect
to such transaction on a pro forma basis,
the Borrower could incur


 


117

















 


$1.0 of additional Indebtedness pursuant to
the Total Net Leverage Ratio test described in Section 6.01(a);


(vi)          (A)  the declaration
and payment of dividends to holders of any class or series of Designated
Preferred Stock (other than Disqualified Stock) issued by the Borrower or any
of its Restricted Subsidiaries after the Closing Date, provided that the
amount of dividends paid pursuant to this clause (A) shall not exceed
the aggregate amount of cash actually received by the Borrower or a Restricted
Subsidiary from the issuance of such Designated Preferred Stock;


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


(C)           the declaration and payment of
dividends on Refunding Capital Stock that is Preferred Stock in excess of the
dividends declarable and payable thereon pursuant to clause (ii) of this
Section 6.03(b);


provided, however, in the case of each of clause
(A), (B) and (C) of this clause (vi), that for the most
recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date of issuance of such
Designated Preferred Stock or the declaration of such dividends on Refunding
Capital Stock that is Preferred Stock, after giving effect to such issuance or
declaration on a pro forma basis, the
Borrower could incur $1.00 of additional Indebtedness pursuant to the Total Net
Leverage Test described in Section 6.01(a) or otherwise is Indebtedness
permitted hereunder;


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


(viii)        the declaration and payment of dividends
on the Borrower’s common stock (or a Restricted Payment to any direct or
indirect parent entity to fund a payment of dividends on such entity’s common
stock), following the first public Equity Offering of such common stock after
the Closing Date, of up to 6.0% per annum of the net cash proceeds received by
(or, in the case of a Restricted Payment to a direct or indirect parent entity,
contributed to the capital of) the Borrower in or from any such public Equity
Offering;


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


(x)            any Restricted Payment used to fund
the Transactions and the fees, costs, and expenses related thereto or owed to
Affiliates, in each case to the extent permitted under Section 6.06;


 


118

















 


(xi)           the repurchase, prepayment, redemption or other
acquisition or retirement for value of any New Senior Notes or Subordinated
Indebtedness upon the occurrence of a Change of Control (so long as such Change
of Control has been waived by the Required Lenders);


(xii)          the declaration and payment of dividends or the payment of
other distributions by the Borrower to, or the making of loans or advances to,
or any direct or indirect parent company or indirect parents or the equity
interest holders thereof in amounts required for any direct or indirect parent
company or the equity interest holders thereof to pay, in each case without
duplication,


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


(B)           federal, foreign, state and local
income or franchise taxes (or any alternative tax in lieu thereof); provided
that, in each fiscal year, the amount of such payments shall be equal to the
amount that the Borrower and its Restricted Subsidiaries would be required to
pay in respect of federal, foreign, state and local income or franchise taxes
if such entities were corporations paying taxes separately from any parent
entity at the highest combined applicable federal, foreign, state, local or
franchise tax rate for such fiscal year;


(C)           customary salary, bonus and other
benefits payable to officers and employees of any direct or indirect parent
company to the extent such salaries, bonuses and other benefits are reasonably
attributable to the ownership or operation of the Borrower and its Restricted
Subsidiaries;


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


(E)           amounts payable pursuant to the
Management Agreement as in effect on the Closing Date;


(F)           fees and expenses other than to
Affiliates of the Borrower related to (1) any equity or debt offering of such
parent entity (whether or not successful), (2) any Investment otherwise
permitted under this covenant (whether or not successful) and (3) any
transaction of the type described in Section 6.04;


(G)           cash payments in lieu of issuing
fractional shares in connection with the exercise of warrants, options or other
securities convertible into or exchangeable for Equity Interests of the
Borrower or any direct or indirect parent;


(H)          amounts to finance
Investments otherwise permitted to be made pursuant to this Section 6.03;
provided that (1) such Restricted Payment shall be made substantially
concurrently with the closing of such Investment and (2) such direct or
indirect parent company shall, immediately following the closing


 


119

















 


thereof, cause (x)
all property acquired (whether assets or Equity Interests) to be contributed to
the capital of the Borrower or one of its Restricted Subsidiaries or (y) the
merger of the Person formed or acquired into the Borrower or one of its
Restricted Subsidiaries (to the extent not prohibited by Section 6.04)
in order to consummate such Investment, in each case, subject to the
limitations set forth in clause (l) of the definition of Permitted
Investment; (3) any direct or indirect parent company and its Affiliates (other
than the Borrower or a Restricted Subsidiary) receives no consideration or
other payment in connection with such transaction, (4) any property received by
the Borrower shall not increase amounts available for Restricted Payments
pursuant to Section 6.03(a) and (5) such Investment shall be deemed to
be made by the Borrower or such Restricted Subsidiary by another paragraph of
this Section 6.03 (other than pursuant to clause (ix) hereof) or
pursuant to the definition of “Permitted Investments” (other than clause
(i) thereof);


(I)            reasonable and customary fees
payable to any directors of any direct or indirect parent of the Borrower and
reimbursement of reasonable out-of-pocket costs of the directors of any direct
or indirect parent of the Borrower in the ordinary course of business, to the
extent reasonably attributable to the ownership or operation of the Borrower
and its Restricted Subsidiaries; and


(J)            reasonable and customary indemnities
to directors, officers and employee of any direct or indirect parent of the
Borrower in the ordinary course of business, to the extent reasonably
attributable to the ownership or operation of the Borrower and its Restricted
Subsidiaries;


(xiii)         payments or distributions to dissenting
stockholders pursuant to applicable law, pursuant to or in connection with a
consolidation, merger or transfer of all or substantially all of the assets of
the Borrower and its Restricted Subsidiaries, taken as a whole, that complies
with Section 6.04; provided that if as a result of such
consolidation, merger or transfer of assets, a Change of Control has occurred,
such Change of Control has been consented to or waived by the Required Lenders;


(xiv)        Restricted Payments by (A) a non-Subsidiary Guarantor, (B) a
Foreign Subsidiary or (C) any other subsidiary to the Borrower or any
Subsidiary Guarantor;


(xv)         payments of dividends or other
distributions to any direct or indirect parent company of the Borrower to fund
the payment by any such parent company of interest payments or the AHYDO Catch
Up Payments on Indebtedness, or dividends on Preferred Stock of any such parent
company incurred or issued after the Closing Date; provided, however,
that (A) the net cash proceeds of such Indebtedness or such Preferred Stock, as
the case may be, are contributed to the Borrower as common equity, (B) the
aggregate amount of dividends declared and paid pursuant to this clause (xv)
does not exceed the amount of net cash proceeds of such Indebtedness or
Preferred Stock actually


 


120

















 


contributed to the Borrower as common equity
and (C) after giving effect to such dividends or other distributions, the
amount available for Restricted Payments pursuant to clause  (ii)(A) of
this section shall not be less than $0;


(xvi)        purchases of minority interests in non-Wholly-Owned
Subsidiaries by the Borrower and the Guarantors;


(xvii)       distributions or payments of Receivables
Fees and purchase of any assets in connection with a Receivables Facility;


provided, however, that at the time of,
and after giving effect to, any Restricted Payment permitted under (x) clauses
(viii) (as determined at the time of the declaration of such dividend) and (xiii),
no Default shall have occurred and be continuing or would occur as a
consequence thereof and (y) clause (xv), no Specified Default shall have
occurred and be continuing or would occur as a consequence thereof.


(c)           As of the Closing
Date, all of the subsidiaries of the Borrower will be Restricted Subsidiaries.  The Borrower will not permit any Unrestricted
Subsidiary to become a Restricted Subsidiary except pursuant to Section
5.11(b).  For purposes of designating
any Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding
Investments by the Borrower and its Restricted Subsidiaries (except to the
extent repaid) in the subsidiary so designated will be deemed to be Restricted
Payments in an amount determined as set forth in the last sentence of the
definition of “Investments.”  Such
designation will be permitted only if a Restricted Payment in such amount would
be permitted at such time, whether pursuant to this Section 6.03 or
pursuant to the definition of “Permitted Investments,” and if such
subsidiary otherwise meets the definition of an Unrestricted Subsidiary.  Unrestricted Subsidiaries will not be subject
to any of the restrictive covenants set forth in the Loan Documents.


(d)           Notwithstanding
anything to the contrary contained in Section 6.03 or elsewhere in this
Agreement, (i) the aggregate amount of all Investments in, and Permitted
Acquisitions of, Persons which are not Loan Parties (or becomes a Loan Party
immediately thereafter), or in the case of an asset acquisition, an acquisition
of assets by a Person which is not a Loan Party (or becomes a Loan Party
immediately thereafter), may not exceed, in the aggregate, the greater of (x)
$150,000,000 and (y) in the event that after giving effect to such Investment
or Permitted Acquisition, as the case may be, on a pro forma basis, that the Borrower could incur $1.00 of additional
Indebtedness pursuant to the Total Net Leverage Test described in Section
6.01(a), an amount equal to the EBITDA of the Borrower and its Restricted
Subsidiaries during the previous four fiscal quarter period last ended for
which Section 5.04 Financials have been delivered to the Administrative Agent; provided
that, at no time shall the Investments, in the aggregate, in Persons which are
not Loan Parties, exceed an amount equal to the EBITDA of the Borrower and its
Restricted Subsidiaries during the previous four fiscal quarter period last
ended for which Section 5.04 Financials have been delivered to the
Administrative Agent and (ii) the aggregate amount of all Investments in
Unrestricted Subsidiaries may not exceed, in the aggregate, $150,000,000.


 


121

















 


Section 6.04.  Fundamental Changes.  (a) 
The Borrower may not consolidate or merge with or into or wind up into
(whether or not the Borrower is the surviving corporation), and may not sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially
all of the properties or assets of the Borrower and its Restricted
Subsidiaries, taken as a whole, in one or more related transactions, to any
Person unless:


(i)            the Borrower is the surviving corporation or the Person
formed by or surviving any such consolidation or merger (if other than the
Borrower) or the Person to whom such sale, assignment, transfer, lease,
conveyance or other disposition will have been made is organized or existing
under the laws of the United States, any state thereof, the District of
Columbia, or any territory thereof (such Person, the “Successor Company”);


(ii)           the Successor Company, if other than the Borrower,
expressly assumes all the Obligations of the Borrower pursuant to documentation
reasonably satisfactory to the Administrative Agent;


(iii)          immediately after such transaction, no Default or Event of
Default exists;


(iv)          immediately after giving pro
forma effect to such transaction and any related financing transactions, as
if such transactions had occurred at the beginning of the applicable
four-quarter period, the Successor Company would be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Total Net Leverage Test
described in Section 6.01(a), in each case made or effected
substantially simultaneously with such transaction or related financing;


(v)           each Guarantor, unless it is the other party to the
transactions described above, in which case Section 6.04(c)(i)(B) shall
apply, shall have confirmed that its Obligations under the Loan Documents to
which it is a party pursuant to documentation reasonably satisfactory to the
Administrative Agent; and


(vi)          the Borrower shall have delivered to the Administrative
Agent an Officer’s Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and such documentation relating to the
Loan Documents, if any, comply with this Agreement;


provided that the Borrower shall promptly notify
the Administrative Agent of any such transaction and shall take all required
actions either prior to or upon the later to occur of 30 days following such
transaction (or the earlier of the date of the required delivery of the next
Pricing Certificate and the date which is 45 days after the end of the most
recently ended fiscal quarter (or such longer period as to which the
Administrative Agent may consent) in order to preserve and protect the Liens on
the Collateral securing the Secured Obligations.


The Successor Company
will succeed to, and be substituted for the Borrower under the Loan
Documents.  Notwithstanding the
foregoing, clauses (a)(iii) and (a)(iv) shall not apply to the
Transactions (including the Merger).


(b)           Notwithstanding
the foregoing paragraphs  (a)(iii) and (a)(iv),


 


122

















 


(i)            the Borrower or a Restricted Subsidiary may consolidate
with or merge into or transfer all or part of its properties and assets to the
Borrower or a Restricted Guarantor;


(ii)           the Borrower may merge with an Affiliate of the Borrower
solely for the purpose of reorganizing the Borrower in a State of the United
States so long as the amount of Indebtedness of the Borrower and its Restricted
Subsidiaries is not increased thereby; and


(iii)          any Foreign Subsidiary may consolidate with or merge into
or transfer all or any part of its assets to any other Foreign Subsidiary.


(c)           No Restricted Guarantor will, and the
Borrower will not permit any Restricted Guarantor to, consolidate or merge with
or into or wind up into (whether or not the Borrower or Restricted Guarantor is
the surviving corporation), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or assets, in
one or more related transactions, to any Person unless:


(i)            (A)  such
Restricted Guarantor is the surviving corporation or the Person formed by or
surviving any such consolidation or merger (if other than such Restricted
Guarantor) or to which such sale, assignment, transfer, lease, conveyance or
other disposition will have been made is organized or existing under the laws
of the jurisdiction of organization of such Restricted Guarantor, as the case
may be, or the laws of the United States, any state thereof, the District of Columbia,
or any territory thereof (such Restricted Guarantor or Person, the “Successor
Person”);


(B)           the Successor Person, if other than
such Restricted Guarantor, expressly assumes all the Obligations of such
Restricted Guarantor pursuant to documentation reasonably satisfactory to the
Administrative Agent;


(C)           immediately after such transaction,
no Event of Default exists; and


(D)          the Borrower shall have delivered to
the Administrative Agent an Officer’s Certificate and an Opinion of Counsel,
each stating that such consolidation, merger or transfer and such documentation
relating to the Loan Documents, if any, comply with this Agreement;


(ii)           the transaction does not violate Section 6.05;


provided that the Borrower shall promptly notify
the Administrative Agent of any such transaction and shall take all required
actions either prior to or upon the later to occur of 30 days following such
transaction (or the earlier of the date of the required delivery of the next
Pricing Certificate and the date which is 45 days after the end of the most
recently ended fiscal quarter (or such longer period as to which the
Administrative Agent may consent) in order to preserve and protect the Liens on
the Collateral securing the Secured Obligations.


In the case of clause (c)(i)(A) above, the Successor Person will
succeed to, and be substituted for, such Restricted Guarantor under the Loan Documents.  Notwithstanding the


 


123

















 


foregoing, any Restricted
Guarantor (x) may merge into or transfer all or part of its properties and
assets to another Restricted Guarantor or the Borrower or (y) dissolve,
liquidate or wind up its affairs if such dissolution, liquidation or winding up
could not reasonably be expected to have a Material Adverse Effect.


(d)           Holdings may not consolidate or merge
with or into or wind up into (whether or not Holdings is the surviving
corporation) and may not sell, assign, transfer, convey, lease or otherwise
dispose of all or substantially all of its properties or assets, in one or more
related transactions, to any other Person unless:


(i)            Holdings is the surviving corporation or the Person
formed by or surviving any such consolidation or merger (if other than
Holdings) or the Person to whom such sale, assignment, transfer, conveyance,
lease or other disposition will have been made is organized or existing under
the laws of the United States, any state of the United States, the District of
Columbia or any territory thereof (Holdings or such Person, including the Person
to which such sale, assignment, transfer, conveyance, lease or other
disposition has been made, as the case may be, being herein called the “Successor
Holdings Guarantor”);


(ii)           the Successor Holdings Guarantor, if other than Holdings,
assumes all the Obligations of Holdings under the Holdings Guaranty and the
Security Documents pursuant to documentation reasonably satisfactory to the
Administrative Agent; and


(iii)          immediately after such transaction, no Event of Default
exists.


Notwithstanding the
foregoing, Holdings may consolidate with, merge into or sell, assign, transfer,
convey, lease or otherwise dispose of all or part of its properties and assets
to the Borrower or to another Guarantor.


Section 6.05.  Dispositions.  Cause, make or suffer to exist a Disposition,
except:


(a)           any Disposition of
Cash Equivalents or Investment Grade Securities or obsolete, worn out,
uneconomical or surplus assets in the ordinary course of business or any
disposition of inventory or goods (or other assets) held for sale in the
ordinary course of business;


(b)           the Disposition of
all or substantially all of the assets of the Borrower and its Restricted
Subsidiaries in a manner permitted pursuant to the provisions described above
under Section 6.04;


(c)           the making of any
Restricted Payment or Permitted Investment that is permitted to be made, and is
made (including payments in respect thereof), under Section 6.03;


(d)           any Disposition of
property or assets or issuance of Equity Interests (A) by a Restricted
Subsidiary of the Borrower to the Borrower or (B) by the Borrower or a
Restricted Subsidiary of the Borrower to another Restricted Subsidiary of the
Borrower; provided that in the case of any event described in clause
(B) where the transferee or


 


124

















 


purchaser
is not a Guarantor, then at the option of the Borrower, either (1) such
disposition shall constitute a Disposition for purposes of the definition of
Prepayment Asset Sale or (2) the Net Cash Proceeds thereof, when aggregated
with the amount of Permitted Investments made pursuant to clauses  (a)
and (c) of the definition thereof, shall not exceed the amount permitted
by Section 6.03(d);


(e)           any Permitted Asset
Swap;


(f)            the sale, lease,
lease assignment or sub-lease of any real, intangible or personal property in
the ordinary course of business;


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


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


(i)            sales of accounts
receivable or rights to future advisory fees (i) in connection with the
collection or compromise thereof or (ii) or participations therein, in
connection with any Receivables Facility;


(j)            transfers of
property subject to casualty or condemnation proceedings (including in lieu
thereof) upon the receipt of the net cash proceeds therefor; provided
such transfer shall constitute a Property Loss Event;


(k)           the abandonment of
intellectual property rights in the ordinary course of business, which in the
reasonable good faith determination of the Borrower or a Restricted Subsidiary
are not material to the conduct of the business of the Borrower and its
Restricted Subsidiaries taken as a whole;


(l)            voluntary
terminations of Hedging Obligations;


(m)          any issuance of
Equity Interests in any Restricted Subsidiary to any officer, director,
consultant or employee of the Borrower or any Restricted Subsidiary in respect
of services provided to the Borrower or a Restricted Subsidiary in the ordinary
course of business approved by the Board of Directors of the Borrower;


(n)           any Disposition to
the extent not involving property (when taken together with any related
Disposition or series of related Dispositions) with a fair market value in
excess of $25,000,000;


(o)           terminations of
leases, subleases, licenses and sublicenses in the ordinary course of business;


(p)           sales of non-core
assets acquired in connection with Permitted Acquisitions, for which a
marketing process has commenced which sales are marketed


 


125

















 


within
180 days of the date of the consummation of such Permitted Acquisition provided
that the fair market vale of such assets shall not exceed 25% of the EBITDA of
the Acquired Entity or Business; and


(q)           Dispositions not
otherwise permitted under this Section 6.05, provided that:


(i)            at least 75% of the consideration therefor received by
the Borrower or such Restricted Subsidiary, as the case may be, is in the form
of cash or Cash Equivalents; provided that the amount of (A) any liabilities
(as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance
sheet or in the footnotes thereto) of the Borrower or such Restricted
Subsidiary, other than liabilities that are by their terms subordinated to the
Obligations or that are owed to the Borrower or a Restricted Subsidiary, that
are assumed by the transferee of any such assets and for which the Borrower and
all of its Restricted Subsidiaries have been validly released by all creditors
in writing, (B) any securities received by the Borrower or such Restricted
Subsidiary from such transferee that are converted by the Borrower or such
Restricted Subsidiary into cash (to the extent of the cash received) within 180
days following the closing of such Disposition, and (C) any Designated Non-Cash
Consideration received by the Borrower or such Restricted Subsidiary in such
Disposition having an aggregate fair market value, taken together with all
other Designated Non-Cash Consideration received pursuant to this clause (C)
that is at that time outstanding, not to exceed the greater of $75,000,000 and
2.0% of Total Assets at the time of the receipt of such Designated Non-Cash
Consideration, with the fair market value of each item of Designated Non-Cash
Consideration being measured at the time received and without giving effect to
subsequent changes in value, shall be deemed to be cash for purposes of this
provision and for no other purpose; and


(ii)           any Disposition of assets or issuance or sale of Equity
Interests of a Restricted Subsidiary in any transaction or series of related
transactions, when taken together with all other Dispositions made in reliance
on this clause (q), does not have a fair market value in excess of
$400,000,000;


(r)            foreclosures;


(s)           Sale and Lease-Back
Transactions involving (i) real property owned on the Closing Date (other than
any Mortgaged Property), (ii) property acquired not more than 180 days prior to
such Sale and Lease Back Transaction for cash in an amount at least equal to
the cost of such property and (iii) other property for cash consideration if
the sale is treated as a Prepayment Asset Sale;


(t)            any issuance or
sale of Equity Interests in, or Indebtedness or other securities of, an
Unrestricted Subsidiary (other than any Unrestricted Subsidiary in which the
Borrower or any Restricted Subsidiary has made an Investment (including by
designation of a Restricted Subsidiary thereof as an Unrestricted Subsidiary)
pursuant to paragraph  (l) of the definition of “Permitted
Investments”; and


 


126

















 


(u)           the sale or other
disposition of a Seed Capital Investment in the ordinary course of business.


provided that the consideration received by the
Borrower or such Restricted Subsidiary, as the case may be, with respect to any
Disposition of any property with a fair market value in excess of $25,000,000
must be at least equal to the fair market value (as determined in good faith by
the Borrower) of the assets sold or otherwise disposed of.  To the extent any Collateral is disposed of
as expressly permitted by this Section 6.05 to any Person other than a
Loan Party, such Collateral shall be sold free and clear of the Liens created
by the Loan Documents, and the Administrative Agent or the Collateral Agent, as
applicable, shall be authorized to take any actions deemed appropriate in order
to effect the foregoing.


Section 6.06.  Transactions with Affiliates.  Except for transactions by or among Loan
Parties (or by and among the Borrower and its Restricted Subsidiaries), sell or
transfer any property or assets to, or purchase or acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, in each case, involving aggregate payments or consideration in
excess of $10,000,000 unless:


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


(b)           the Borrower
delivers to the Administrative Agent with respect to any such transaction or
series of related transactions involving aggregate payments or consideration in
excess of $25,000,000, a resolution adopted by the majority of the board of
directors of the Borrower approving such transaction and set forth in an
Officer’s Certificate certifying that such transaction complies with clause
(a) above.


(c)           The foregoing
provisions will not apply to the following:


(i)            the Borrower or any Restricted Subsidiary may engage in
any of the foregoing transactions at prices and on terms and conditions not
less favorable to the Borrower or such Restricted Subsidiary than could be
obtained on an arm’s-length basis from unrelated third parties;


(ii)           the Borrower and its Restricted Subsidiaries may pay fees,
expenses and make indemnification payments directly or indirectly pursuant to
and in accordance with the Management Agreement (as in effect on the Closing
Date);


(iii)          the Transactions and the payment of the Transaction
Expenses;


(iv)          issuances by the Borrower and its Restricted Subsidiaries
of Equity Interests not prohibited under this Agreement;


(v)           reasonable and customary fees payable
to any directors of the Borrower and its Restricted Subsidiaries (or any direct
or indirect parent


 


127

















 


company) and reimbursement of reasonable
out-of-pocket costs of the directors of the Borrower and its subsidiaries (or
any direct or indirect parent company) in the ordinary course of business (in
the case of any direct or indirect parent to the extent reasonably attributable
to the ownership or operations of the Borrower and its Restricted
Subsidiaries);


(vi)          expense reimbursement and employment, severance and
compensation arrangements entered into by the Borrower, any of its direct or
indirect parent companies, or any Subsidiaries with their officers, employees
or consultants in the ordinary course of business including, without
limitation, the payment of stay bonuses and incentive compensation and/or such
officer’s, employee’s or consultant’s equity investment in certain Restricted
Subsidiaries and other stock option, stock incentive, equity, bonus and other
compensation plans;


(vii)         payments by the Borrower and its Restricted Subsidiaries to
each other pursuant to tax sharing agreements or arrangements among Holdings
and its subsidiaries on customary terms (including, without limitation,
transfer pricing initiatives);


(viii)        the payment of reasonable and customary
indemnities to directors, officers, employees or consultants of the Borrower
(or any direct or indirect parent company) and its Subsidiaries in the ordinary
course of business and the entering into related agreements, in the case of any
direct or indirect parent company to the extent attributable to the operations
of the Borrower and its Subsidiaries;


(ix)           transactions pursuant to permitted agreements in existence
on the Closing Date (other than the Management Agreement) and disclosed to the
Lenders prior to the Closing Date and any amendment thereto to the extent such
an amendment is not adverse to the interests of the Lenders in any material
respect;


(x)            Restricted Payments permitted under Section 6.03
or any Permitted Investment (including Seed Capital Investments) or
dispositions permitted by Section 6.05(b);


(xi)           payments by the Borrower and its Restricted Subsidiaries
made for any financial advisory, financing, underwriting or placement services
or in respect of other investment banking activities, including in connection
with acquisitions or divestitures, which payments are approved by a majority of
the board of directors of the Borrower, in good faith;


(xii)          loans and other transactions among the
Borrower and its subsidiaries (and any direct and indirect parent company of
the Borrower) to the extent permitted hereunder; provided that any
Indebtedness of any Loan Party owed to a Restricted Subsidiary that is not a
Loan Party and is incurred after the


 


128

















 


Closing Date shall be subject to
subordination provisions no less favorable to the Lenders than the
subordination provisions reasonably acceptable to the Administrative Agent;


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


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


(xv)         payments or loans (or cancellation of loans) to employees or
consultants of the Borrower, any of its direct or indirect parent companies or
any of its Restricted Subsidiaries which are approved by a majority of the
board of directors of the Borrower in good faith and otherwise permitted
hereunder;


(xvi)        payments to investment and commercial banks (or their
affiliates) for financial advisory and other investment and commercial banking
services and financings provided by them in the ordinary course of business on
ordinary commercial terms;


(xvii)       investments by Affiliates of the Borrower
in investment funds managed by the Borrower or any of its Restricted
Subsidiaries on terms generally available to investors in such investment
funds;


(xviii)      any transaction with a Receivables
Subsidiary effected as part of a Receivables Facility, including sales of
accounts receivable, or participations therein;


(xix)         any transaction with the Borrower, a
Restricted Subsidiary, an Investment Vehicle or joint venture or similar entity
which would constitute a transaction with an Affiliate solely because the
Borrower or a Restricted Subsidiary owns an equity interest in or otherwise
controls such Restricted Subsidiary, joint venture or similar entity; and


 


129

















 


(xx)          any transaction with, or payment to, any financial
institution or distribution participant in connection with the sale or
distribution of securities or providing in-vestment management services in the
ordinary course of business of the Borrower and its Restricted Subsidiaries.


Section 6.07.  Senior Secured Net Leverage Ratio.  Permit the Senior Secured Net Leverage Ratio
the last day of any fiscal quarter set forth below to be greater than the ratio
set forth opposite such period below:


	
  Period

  	
   

  	
  Ratio

  
	
  The last day of the Borrower’s fiscal quarter ending June 30, 2008
  through and including the day before the last day of Holdings’ fiscal quarter
  ending December 31, 2008

  	
   

  	
  6.50:1.00

  
	
   

  	
   

  	
   

  
	
  The last day of the Borrower’s fiscal quarter ending December 31,
  2008 through and including the day before the last day of the Borrower’s
  fiscal quarter ending June 30, 2009

  	
   

  	
  6.25:1.00

  
	
   

  	
   

  	
   

  
	
  The last day of the Borrower’s fiscal quarter ending June 30, 2009
  through and including the day before the last day of Borrower’s fiscal
  quarter ending June 30, 2010

  	
   

  	
  6.00:1.00

  
	
   

  	
   

  	
   

  
	
  The last day of the Borrower’s fiscal quarter ending June 30, 2010
  through and including the day before the last day of Borrower’s fiscal
  quarter ending June 30, 2011

  	
   

  	
  5.75:1.00

  
	
   

  	
   

  	
   

  
	
  The last day of the Borrower’s fiscal quarter ending June 30, 2011
  through and including the day before the last day of the Borrower’s fiscal
  quarter ending June 30, 2012

  	
   

  	
  5.25:1.00

  
	
   

  	
   

  	
   

  
	
  Thereafter

  	
   

  	
  5.00:1.00

  



 


Section 6.08.  Restrictive Agreements.  Enter into, incur or permit to exist any
agreement or other arrangement that prohibits, restricts or imposes any
condition upon:


(a)           the ability of the
Borrower or any Restricted Subsidiary to create, incur or permit to exist any
Lien upon any of its property or assets to secure the Obligations;


(b)           the ability of any
Restricted Subsidiary to pay dividends or other distributions with respect to
any of its Equity Interests or to make or repay loans or advances to the
Borrower or any other Restricted Subsidiary or to guarantee Indebtedness of the
Borrower or any other Restricted Subsidiary; or


(c)           the ability of any
Restricted Subsidiary to sell, lease or transfer any of its properties or
assets to the Borrower or any of its Restricted Subsidiaries;


provided
that the foregoing shall not apply to:


 


130

















 


(i)            restrictions and conditions imposed by law, by any Loan
Document or which (x) exist on the date hereof and (y) to the extent
contractual obligations permitted by clause (x) are set forth in an agreement
evidencing Indebtedness, are set forth in any agreement evidencing any
permitted renewal, extension or refinancing of such Indebtedness so long as
such renewal, extension or refinancing does not expand the scope of such
contractual obligation;


(ii)           customary restrictions and conditions contained in
agreements relating to any sale of assets or Equity Interests pending such
sale, provided such restrictions and conditions apply only to the Person
or property that is to be sold;


(iii)          restrictions and conditions (x) on any Foreign Subsidiary
by the terms of any Indebtedness of such Foreign Subsidiary permitted to be
incurred hereunder or (y) by the terms of the documentation governing any
Receivables Facility that in the good faith determination of Holdings or the
Borrower are necessary or advisable to effect such Receivables Facility;


(iv)          restrictions or conditions imposed by any agreement
relating to Secured Indebtedness permitted by this Agreement if such
restrictions or conditions apply only to the Person obligated under such
Indebtedness and its subsidiaries or the property or assets intended to secure
such Indebtedness;


(v)           contractual obligations binding on a Restricted Subsidiary
at the time such Restricted Subsidiary first becomes a Restricted Subsidiary,
so long as such contractual obligations were not entered into solely in
contemplation of such Person becoming a Restricted Subsidiary;


(vi)          restrictions and conditions imposed by the terms of the
documentation governing any Indebtedness, Disqualified Stock or Preferred Stock
of a Restricted Subsidiary of the Borrower that is not a Loan Party, which
Indebtedness, Disqualified Stock or Preferred Stock is permitted by Section
6.01;


(vii)         customary provisions in joint venture agreements and other
similar agreements applicable to joint ventures permitted under Section 6.03
and applicable solely to such joint venture entered into in the ordinary course
of business;


(viii)        negative pledges and restrictions on
Liens in favor of any holder of Indebtedness entered into after the date hereof
and otherwise permitted under Section 6.01 but only if such negative
pledge or restriction expressly permits Liens for the benefit of the
Administrative Agent and/or the Collateral Agent and the Lenders with respect
to the credit facilities established hereunder and the Obligations under the
Loan Documents on a senior basis and without a requirement that such holders of
such Indebtedness be secured by such Liens equally and ratably or on a junior
basis;


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


 


131

















 


(x)            Secured Indebtedness otherwise permitted to be incurred
under Sections 6.01 and 6.02 that limit the right of the
obligor to dispose of the assets securing such Indebtedness;


(xi)           any encumbrances or restrictions of the type referred to
in clauses (a) and (b) above imposed by any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings of the contracts, instruments or obligations
referred to in clauses (i) through (x) above; provided
that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are, in the good faith
judgment of the Borrower, no more restrictive with respect to such encumbrance
and other restrictions taken as a whole than those prior to such amendment,
modification, restatement, renewal, increase, supplement, refunding,
replacement or refinancing;


(xii)          restrictions and conditions imposed by the terms of the
documentation governing Seed Capital Investments; and


(d)           clause (a)
and clause (c) of the foregoing shall not apply to customary provisions
in leases, subleases, licenses, sublicenses and other contracts restricting the
assignment, sale or transfer thereof, in each case entered into in the ordinary
course of business or which exists on the date hereof, and no such clause in
this Section 6.07 shall prohibit or restrict such party’s right to
execute a subordination, non-disturbance and attornment agreement in a form
customary and reasonably acceptable to Borrower or such Restricted Subsidiary.


Section 6.09.  Limitation on Business of Holdings, the
Borrower and Its Restricted Subsidiaries. 
(a)  Engage in any line of
business material to the Borrower and its subsidiaries taken as a whole other
than (x) those lines of business conducted by the Borrower or any Restricted
Subsidiary on the Closing Date or (y) any Similar Business.


(b)           In
the case of the Holdings only, and notwithstanding the foregoing or anything
else in this Agreement to the contrary, engage in any business or own any
significant assets or have any material liabilities other than (i) (w) its
ownership of the capital stock of its Subsidiaries from time to time and
activities incidental thereto, (x) the ownership of all the outstanding shares
of Capital Stock of other entities created or acquired in a transaction
otherwise permitted not prohibit hereunder and activities incidental thereto,
(y) own or acquire any assets (other than all of the outstanding shares of
Capital Stock of the Borrower, the cash proceeds of any Restricted Payments
permitted by Section 6.03 or all of the outstanding shares of Capital Stock
of any other entity created or acquired in a transaction not prohibited
hereunder) and (z) holding cash and Cash Equivalents in the aggregate at any
time (together with any investment income thereon) and (ii) those liabilities
and Indebtedness which it is responsible for under this Agreement, the other
Loan Documents to which it is a party and documentation in respect of any
Indebtedness incurred by it (including the Existing Notes, the New Senior
Notes) and Investments it makes (including Permitted Acquisitions); provided
that Holdings may engage in those activities that are incidental to (i) the
maintenance of its existence in compliance with applicable law and (ii) legal,
tax and accounting matters in connection with any of the foregoing activities.  In furtherance of the foregoing, no subsidiary
shall make any Restricted


 


132

















 


Payment or transfer any
asset to Holdings if after giving effect thereto and the application of the
proceeds thereof, the Holdings would not be in compliance with this Section
6.09(b).


Section 6.10.  Modification of Junior Financing
Documentation.  Directly or
indirectly, amend, modify or change (a) the subordination provisions of any
Junior Financing Documentation (and the component definitions used therein) or
(b) any other term or condition of the Existing Notes Documentation, the New
Senior Notes Documentation or any Junior Financing Documentation, in each case,
in any manner materially adverse to the interests of the Lenders and, in each
case, without the consent of the Administrative Agent (which consent shall not
be unreasonably withheld).


Section 6.11.  Changes in Fiscal Year.  Make any change in its fiscal year after the
Closing Date; provided, however, that the Borrower may, upon
written notice to the Administrative Agent, change its fiscal year to any other
fiscal year reasonably acceptable to the Administrative Agent, in which case,
the Borrower and the Administrative Agent will, and are hereby authorized by
Lenders to, make any adjustments to this Agreement that are necessary to
reflect such change in fiscal year.


Section 6.12.  Acquisitions.  Make any Acquisition other than a Permitted
Acquisition consummated in accordance with Section 5.12 or Acquisitions
pursuant to clause (l) of the definition of Permitted Investments.


ARTICLE VII


 


Events of Default


 


Section 7.01.  Events of Default.  In case of the happening and continuance of
any of the following events (“Events of Default”):


(a)           any representation
or warranty made or deemed made in any Loan Document or any representation, or
warranty contained in any certificate required to be furnished pursuant to any
Loan Document, shall prove to have been false or materially misleading when so
made, deemed made or furnished;


(b)           default shall be
made in the payment of any principal of any Loan when and as the same shall
become due and payable, whether at the due date thereof or at a date fixed for
mandatory prepayment thereof or by acceleration thereof or otherwise;


(c)           default shall be
made in the payment of (x) any reimbursement with respect to any L/C
Disbursement, interest on any Loan or L/C Disbursement or any Fee (other than
an amount referred to in clause (b) above) due under any Loan Document,
when and as the same shall become due and payable, and such default shall
continue unremedied for a period of five Business Days or (y) any other amount
(other than an amount referred to in clause (b) above or the preceding clause
(x)) due under any Loan Document, when and as the same shall become due and
payable, and such default shall continue unremedied for a period of 15 Business
Days;


 


133

















 


(d)           default shall be
made in the due observance or performance by Holdings, the Borrower or any Restricted
Subsidiary of any covenant, condition or agreement contained in Section
5.01(a) (with respect to the Borrower), 5.05(a) or in Article VI;


(e)           default shall be
made in the due observance or performance by any Loan Party or its Restricted
Subsidiaries of any covenant, condition or agreement contained in any Loan
Document (other than those specified in clause (b), (c) or (d)
above) and such default shall continue unremedied for a period of 30 days after
written notice thereof from the Administrative Agent to the Borrower;


(f)            (i) Holdings, the
Borrower or any Restricted Subsidiary shall fail to pay any principal or
interest, regardless of amount, due in respect of any Material Indebtedness,
when and as the same shall become due and payable (after giving effect to an
applicable grace period, cure, amendment or waiver), which failure enables or
permits (with or without the giving of notice) the holder or holders of such
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
or that is a failure to pay such Material Indebtedness at its maturity or (ii)
any other 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 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 clause (ii) shall not apply to secured Material Indebtedness that
becomes due as a result of the voluntary sale or transfer of the property or
assets securing such Material Indebtedness if such sale or transfer is
otherwise permitted hereunder;


(g)           an involuntary
proceeding shall be commenced or an involuntary petition shall be filed in a court
of competent jurisdiction seeking (i) relief in respect of the Holdings,
Borrower or any Restricted Subsidiary (other than an Immaterial Subsidiary), or
of a substantial part of the property or assets of the Holdings, Borrower or a
Restricted Subsidiary (other than an Immaterial Subsidiary), under Title 11 of
the United States Code (the “Bankruptcy Code”), as now constituted or
hereafter amended, or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for Holdings,
the Borrower or any Restricted Subsidiary (other than an Immaterial Subsidiary)
or for a substantial part of the property or assets of Holdings, the Borrower
or a Restricted Subsidiary (other than an Immaterial Subsidiary) or (iii) the
winding-up or liquidation of Holdings, the Borrower or any Restricted
Subsidiary (other than an Immaterial Subsidiary); and 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;


(h)           Holdings, the
Borrower or any Restricted Subsidiary (other than an Immaterial Subsidiary)
shall (i) voluntarily commence any proceeding or file any petition seeking
relief under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal, state or foreign bankruptcy,
insolvency, receivership or


 


134

















 


similar
law, (ii) consent to the institution of any proceeding or the filing of any
petition described in clause (g) above, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for Holdings, the Borrower or any Restricted Subsidiary (other
than an Immaterial Subsidiary) or for a substantial part of the property or
assets of Holdings, the Borrower or any Restricted Subsidiary (other than an
Immaterial Subsidiary), (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) become unable, admit in writing
its general inability or fail generally to pay its debts as they become due;


(i)            one or more
judgments for the payment of money in an aggregate amount exceeding $35,000,000
(to the extent not covered by insurance as to which an insurance company has
not denied coverage or by an indemnification agreement as to which the
indemnifying party has not denied liability) shall be rendered against
Holdings, the Borrower and/or any Restricted Subsidiary (other than an
Immaterial Subsidiary) and the same shall remain undischarged for a period of
60 consecutive days during which execution shall not be effectively stayed;


(j)            (i) an ERISA Event
occurs with respect to a Pension Plan or Multiemployer Plan which has resulted
or could reasonably be expected to result in a Material Adverse Effect or (ii)
a Pension Event occurs with respect to a Foreign Plan which has resulted or
could reasonably be expected to result in a Material Adverse Effect;


(k)           any material
provision of any Loan Document, at any time after its execution and delivery,
shall for any reason cease to be in full force and effect (other than in accordance
with its terms or in accordance with the terms of the other Loan Documents or
as a result of the action or inaction of any Agent or a Lender), or any Loan
Party contests in writing the validity or enforceability of any material
provision of any Loan Document; or any Loan Party denies in writing that it has
any or further liability thereunder (other than as a result of the discharge of
such Loan Party in accordance with the terms of the Loan Documents);


(l)            other than with
respect to de minimis items of Collateral
not exceeding $5,000,000 in the aggregate, any Lien purported to be created by
any Security Document shall cease to be (other than as a result of the action
or inaction of any Agent or a Lender), or shall be asserted in writing by any
Loan Party not to be, a valid, perfected first priority Lien (subject only to
Permitted Liens, to the extent any such Permitted Liens would have priority
over the Liens in favor of the Administrative Agent pursuant to any applicable
law) having the priority contemplated thereby (except as otherwise expressly
provided in this Agreement or such Security Document) on the securities, assets
or properties purported to be covered thereby, except to the extent that any
lack of validity, perfection or priority results from any act or omission of
any Collateral Agent, the Administrative Agent, or any Lender (so long as such
act or omission does not result from the breach or non-compliance by a Loan
Party with the Loan Documents); or


(m)          there shall have
occurred a Change of Control;


 


135

















 


then, and in every such
event (other than an event with respect to the Borrower described in paragraph
(g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent may (with the consent of
the Required Lenders), and at the request of the Required Lenders shall, by
written notice to the Borrower, take either or both of the following actions,
at the same or different times:  (i)
terminate forthwith the Commitments and (ii) declare the Loans then outstanding
to be forthwith due and payable in whole or in part, whereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and any unpaid accrued Fees and all other liabilities of the Borrower
accrued hereunder and under any other Loan Document, shall become forthwith due
and payable, to the extent permitted by applicable law, without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived by the Borrower, anything contained herein or in any other
Loan Document to the contrary notwithstanding; and in any event with respect to
the Borrower described in paragraph  (g) or (h) above, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and any unpaid accrued Fees
and all other liabilities of the Borrower accrued hereunder and under any other
Loan Document, shall automatically become due and payable, to the extent
permitted by applicable law, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived by the Borrower,
anything contained herein or in any other Loan Document to the contrary notwithstanding.


Section 7.02.  Right to Cure.  Notwithstanding anything to the contrary
contained in this Article VII, in the event that the Borrower fails to
comply with the requirements of Section 6.07 as of the end of any
relevant fiscal quarter, the Borrower shall have the right (the “Cure Right”)
(at any time during such fiscal quarter or thereafter until the date that is 20
days after the date the Pricing Certificate is required to be delivered
pursuant to Section 5.04(c)) to issue Equity Interests (other than
Disqualified Stock) for cash or otherwise receive cash contributions to its
common equity in an amount equal no greater than that needed to cause the
Borrower to be in compliance with the requirements of Section 6.07 (the “Cure
Amount”), and thereupon the Borrower’s compliance with Section 6.07
shall be recalculated giving effect to the following pro forma adjustments: 
(i) EBITDA shall be increased, solely for the purposes of
determining compliance with Section 6.07, including determining
compliance with Section 6.07 as of the end of such fiscal quarter and
applicable subsequent periods that include such fiscal quarter by an amount
equal to the Cure Amount and (ii) if, after giving effect to the foregoing
recalculations (but not, for the avoidance of doubt, taking into account any
repayment of Indebtedness in connection therewith), the requirements of Section
6.07 shall be satisfied, then the requirements of Section 6.07 shall
be deemed satisfied as of the end of the relevant fiscal quarter with the same
effect as though there had been no failure to comply therewith at such date,
and the applicable breach or default of Section 6.07 that had occurred
shall be deemed cured for the purposes of this Agreement.  Notwithstanding anything herein to the contrary,
(x) in each four fiscal quarter period there shall be a period of at least two
fiscal quarter in which the Cure Right is not exercised, (y) the Cure Amount
shall be no greater than the amount required for purposes of complying with Section 6.07
and (z) upon the Administrative Agent’s receipt of a notice from the Borrower
that it intends to exercise the Cure Right (a “Notice of Intent to Cure”),
until the 20th day following date of delivery of the Pricing Certificate under Section
5.04(c) to which such Notice of Intent to Cure relates, none of the
Administrative Agent nor any Lender shall exercise the right to accelerate the
Loans or terminate the Commitments and none of the Administrative Agent, the
Collateral Agents nor any other Lender or Secured Party shall


 


136

















 


(i) exercise any right to foreclose on or take
possession of the Collateral or (ii) exercise and other remedy hereunder or
applicable law solely on the basis of an Event of Default having occurred and
being continuing under Section 6.07.


 


ARTICLE VIII


 


The Administrative Agent
and the Collateral Agent


 


Each of the Lenders and
each Issuing Bank hereby irrevocably appoints each of the Administrative Agent
and the Collateral Agent (the Administrative Agent and the Collateral Agent are
referred to collectively as the “Agents”) its agent and authorizes the
Agents to take such actions on its behalf and to exercise such powers as are
delegated to such Agent by the terms of the Loan Documents, together with such
actions and powers as are reasonably incidental thereto.  Without limiting the generality of the
foregoing, the Agents are hereby expressly authorized to execute any and all
documents (including releases), including the Security Documents with respect
to the Collateral and the rights of the Secured Parties with respect thereto,
as contemplated by and in accordance with the provisions of this Agreement and
the Security Documents.  The Lenders each
hereby agree and consent to all of the provisions of the Security Documents.


The bank serving as the
Administrative Agent and/or the Collateral 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 an Agent, and such bank and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with the Borrower or any subsidiary or other Affiliate thereof
as if it were not an Agent hereunder.


Neither Agent shall have any duties or obligations except those
expressly set forth in the Loan Documents. 
Without limiting the generality of the foregoing, (a) neither Agent
shall be subject to any fiduciary or other implied duties, regardless of whether
a Default or Event of Default has occurred and is continuing, (b) neither Agent
shall have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby that such Agent is instructed in writing to exercise by the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.08), (c) each
Agent shall be fully justified in failing or refusing to take any action under
any Loan Document unless it shall first receive such advice or concurrence of
the relevant Required Lenders as it deems appropriate and, if it so requests,
it shall first be indemnified to its reasonable satisfaction by the relevant
Lenders against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action and (d) except as
expressly set forth in the Loan Documents, neither Agent shall have any duty to
disclose, nor shall it be liable for the failure to disclose, any information
relating to Holdings, the Borrower or any of the subsidiaries thereof that is
communicated to or obtained by the bank serving as Administrative Agent and/or
Collateral Agent or any of its Affiliates in any capacity.  Neither Agent shall 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 9.08) or in the
absence of its (or its agents’, employees’, advisors’, director’s, officer’s or
affiliates’) own gross negligence, bad faith or willful misconduct or breach of
the Loan Documents (as


 


137

















 


determined by a court of
competent jurisdiction in a final and non-appealable judgment).  Neither Agent shall be deemed to have
knowledge of any Default or Event of Default unless and until written notice
thereof is given to such Agent by the Borrower or a Lender, and neither Agent
shall 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, (v) the perfection or priority of any Lien or security interest
created or purported to be created under the Collateral Documents or (vi) 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 such Agent.


Each 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 in good faith to be genuine and to have been signed or
sent by the proper Person.  Each Agent
may also rely upon any statement made to it orally or by telephone and believed
by it in good faith to have been made by the proper Person, and shall not incur
any liability for relying thereon.  Each
Agent may consult with legal counsel (who may be counsel for the Borrower or
any Affiliate thereof), independent accountants and other experts selected by
it, and shall not be liable for any action taken or not taken by it in good
faith and in accordance with the advice of any such counsel, accountants or
experts.


For purposes of
determining compliance with the conditions specified in Section 4.01
or Section 4.02, each Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date or
Credit Event specifying its objection thereto.


Each Agent may perform
any and all its duties and exercise its rights and powers by or through any one
or more sub-agents appointed by it.  Each
Agent and any such sub-agent may perform any and all its duties and exercise
its rights and powers by or through their respective Related Parties.  The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of each
Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the Credit Facilities provided for herein as
well as activities as Agent.


Subject to the appointment and acceptance of a successor Agent as
provided below, any Agent may resign at any time by notifying in writing the
relevant Lenders, each Issuing Bank (if applicable) and the Borrower.  Upon receipt of any such notice of
resignation of the Administrative Agent or the Collateral Agent, the Required
Lenders shall have the right, with the consent of the Borrower (such consent
not to be unreasonably withheld, and provided that no such consent of
the Borrower shall be required if an Event of Default has occurred and is
continuing under paragraphs  (g)(i) or (h) of Section
7.01), to appoint a successor (other than a Disqualified Institution) which
shall be a commercial banking institution organized under the


 


138

















 


laws of the United States
or any State or a United States branch or agency of a commercial banking
institution, in each case having a combined capital and surplus of at least
$500,000,000.


If no successor agent is
appointed prior to the effective date of resignation of the relevant Agent
specified by such Agent in its written notice, the resigning Agent may appoint,
after consulting with the relevant Lenders and the Borrower, a successor agent
from among the relevant Lenders.  If no
successor agent has accepted appointment as the successor agent by the date
which is 60 days following the retiring Agent’s notice of resignation, the
retiring Agent’s resignation shall nevertheless thereupon become effective and
the relevant Lenders shall perform all of the duties of such Agent hereunder
until such time, if any, as the Required Lenders, appoint a successor agent as
provided for above (except in the case of the Collateral Agent holding
collateral security on behalf of any Secured Parties, the resigning Collateral
Agent shall continue to hold such collateral security as nominee until such
time as a successor Collateral Agent is appointed).  Upon the acceptance of any appointment as an
Agent hereunder by a successor and upon the execution and filing or recording
of such financing statements, or amendments thereto, and such amendments or
supplements to the Security Documents, and such other instruments or notices,
as may be necessary or desirable, or as the Required Lenders may request, in
order to (a) continue the perfection of the Liens granted or purported to
be granted by the Security Documents or (b) otherwise ensure that the
obligations under Section 5.09 are satisfied, the successor Agent shall
thereupon succeed to and become vested with all the rights, powers, discretion,
privileges, and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under the Loan Documents.  The fees payable by the Borrower to a
successor Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor.  After an Agent’s resignation hereunder, the
provisions of this Article and Section 9.05 shall continue in effect for
the benefit of such retiring Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while acting as Agent.


None of Lenders or other
Persons identified on the cover page or signature pages of this Agreement as a “syndication
agent,” “documentation agent,” “bookrunner” or “arranger” shall have any right,
power, obligation, liability, responsibility or duty under this Agreement other
than those applicable to all Lenders as such. 
Without limiting the foregoing, none of the Lenders or other Persons so
identified shall have or be deemed to have any fiduciary relationship with any
Lender.


Each Lender acknowledges
that it has, independently and without reliance upon the Agents, the Arrangers
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 Agents,
the Arrangers or any other Lender and based on such documents and information
as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement or
any other Loan Document, any related agreement or any document furnished hereunder
or thereunder.


To the extent required by any applicable law, the Administrative Agent
may withhold from any interest payment to any Lender an amount equivalent to
any applicable withholding tax.  If the
Internal Revenue Service or any other Governmental Authority asserts a


 


139

















 


claim that the
Administrative Agent did not properly withhold tax from amounts paid to or for
the account of any Lender because the appropriate form was not delivered or was
not properly executed or because such Lender failed to notify the
Administrative Agent of a change in circumstance which rendered the exemption
from, or reduction of, withholding tax ineffective or for any other reason,
such Lender shall indemnify the Administrative Agent fully for all amounts
paid, directly or indirectly, by the Administrative Agent as tax or otherwise,
including any penalties or interest and together with all expenses (including
legal expenses, allocated internal costs and out-of-pocket expenses) incurred.


In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
any Loan Party, the Administrative Agent and the Collateral Agent (irrespective
of whether the Obligations shall then be due and payable as herein expressed or
by declaration or otherwise and irrespective of whether such Agent shall have
made any demand on the Borrower) shall be entitled and empowered, by
intervention in such proceeding or otherwise;


(a)           to file and prove a claim for the
whole amount of the Obligations and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders and each
Agent or (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders and each Agent and their respective
agents and counsel and all other amounts due such Lenders and the
Administrative Agent under Sections 2.05 and 9.05) allowed
in such judicial proceeding; and


(b)           to collect and receive any monies or
other property payable or deliverable on any such claims and to distribute the
same;


and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender to make
such payments to such Agent and, in the event such Agent shall consent to the
making of such payments directly to the Lenders, to pay to the Administrative
Agent any amount due for the reasonable compensation, expenses, disbursements
and advances of the Agents and their respective agents and counsel, and any
other amounts in each case due the Administrative Agent under Sections 2.05
and 9.05.


Nothing contained herein
shall be deemed to authorize any Agent to authorize or consent to or accept or
adopt on behalf of any relevant Lender any plan or reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any
relevant Lender to authorize such Agent to vote in respect of the claim of any
such Lender in any such proceeding.


Each 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
each Issuing Bank shall have all of the benefits and immunities (i) provided to
the Agents in this Article VIII with respect to any acts taken or
omissions suffered by such Issuing Bank in connection with Letters of Credit
issued by it or proposed to be issued by it and the applications and agreements
for letters of credit pertaining to such Letters of Credit as fully as if the
term “Agent” as used in this Article VIII included such Issuing
Bank with respect to such acts or omissions and (ii) as additionally provided
herein with respect to such Issuing Bank.


 


140

















 


Each Lender hereby
appoints each other Lender as agent for the purpose of perfecting Liens for the
benefit of the Agents and the Secured Parties, in assets which, in accordance
with Article 9 of the UCC or any other applicable law of the United States of
America can be perfected only by possession. 
Should any Secured Party (other than an Agent) obtain possession of any
such Collateral, such Secured Party shall notify the Collateral Agent thereof,
and, promptly upon the Collateral Agent’s request therefor shall deliver such
Collateral to the Collateral Agent, or otherwise deal with such Collateral in
accordance with the Collateral Agent’s instructions.


ARTICLE IX


 


Miscellaneous


 


Section 9.01.  Notices.  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 fax, as follows:


	
  (a)

  	
  if to Holdings or the Borrower, to them at:

  
	
   

  	
   

  
	
   

  	
  Nuveen Investments,
  Inc.

  
	
   

  	
  333 W. Wacker Drive

  
	
   

  	
  Chicago, IL 60606

  
	
   

  	
  Attention:

  	
  General Counsel &
  Treasurer

  
	
   

  	
  Telephone:

  	
  (312) 917-7700

  
	
   

  	
  Telecopier:

  	
  (312) 917-7952

  
	
   

  	
  Electronic Mail:
  John.MacCarthy@nuveen.com, Pete.Darrigo@nuveen.com;

  
	
   

  	
   

  
	
   

  	
  with a copy to (which
  shall not constitute notice):

  
	
   

  	
   

  
	
   

  	
  Madison Dearbon
  Partners

  
	
   

  	
  Three First National
  Plaza, Suite 3800

  
	
   

  	
  Chicago, IL 60602

  
	
   

  	
  Attention:

  	
  Vahe Dombalagian,
  Director, and

  
	
   

  	
   

  	
  Edward Magnus, Vice
  President

  
	
   

  	
  Telephone:

  	
  (312) 895-1000

  
	
   

  	
  Telecopier:

  	
  (312) 895-1001

  
	
   

  	
  Electronic Mail: vdombalagian@mdcp.com,
  emagnus@mdcp.com;

  
	
   

  	
   

  
	
   

  	
  and

  
	
   

  	
   

  
	
   

  	
  Kirkland & Ellis
  LLP

  
	
   

  	
  200 E. Randolph Drive

  
	
   

  	
  Chicago, IL 60601

  
	
   

  	
  Attention:

  	
  Linda K. Myers, P.C.,
  and

  
	
   

  	
   

  	
  Richard Porter, P.C.

  
	
   

  	
  Telephone:

  	
  (312) 861-2000

  
	
   

  	
  Telecopier:

  	
  (312) 861-2200

  
	
   

  	
  Electronic Mail:
  lmyers@kirkland.com, rporter@kirkland.com;

  



 


141

















 


 


	
  (b)

  	
  if to Deutsche Bank AG New
  York Branch as an Agent or Swingline Lender, to:

  
	
   

  	
   

  
	
   

  	
  Deutsche Bank AG New
  York Branch

  
	
   

  	
  90 Hudson Street

  
	
   

  	
  Jersey City, NJ 07302

  
	
   

  	
  Attention:

  	
  Noreen Young

  
	
   

  	
  Telephone:

  	
  (201) 593-2445

  
	
   

  	
  Telecopier:

  	
  (201) 593-2314

  
	
   

  	
  Electronic Mail:
  Noreen.young@db.com;

  
	
   

  	
   

  
	
   

  	
  and

  
	
   

  	
   

  
	
   

  	
  Deutsche Bank AG New
  York Branch

  
	
   

  	
  60 Wall Street

  
	
   

  	
  New York, NY 10005

  
	
   

  	
  Attention:

  	
  Paul O’Leary

  
	
   

  	
  Telephone:

  	
  (212) 250-6133

  
	
   

  	
  Telecopier:

  	
  (212) 797-5690

  
	
   

  	
  Electronic Mail:
  paul.oleary@db.com;

  
	
   

  	
   

  
	
  (c)

  	
  if to Deutsche Bank AG New York Branch as Issuing
  Bank, to:

  
	
   

  	
   

  
	
   

  	
  Deutsche Bank AG New
  York Branch

  
	
   

  	
  60 Wall Street, 38th
  Floor

  
	
   

  	
  New York, NY 10005

  
	
   

  	
  Attention:

  	
  Everadus Rozing

  
	
   

  	
  Telephone:

  	
  (212) 250-1014

  
	
   

  	
  Telecopier:

  	
  (212) 797-0403

  
	
   

  	
  Electronic Mail:
  everadus.rozing@db.com; and

  



 


(d)           if to a Lender, to
it at its address (or fax number) set forth on Schedule 2.01 or in
the Assignment and Acceptance pursuant to which such Lender shall have become a
party hereto.


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 if delivered by hand or overnight courier service
or sent by fax or on the date three Business Days after dispatch by certified
or registered mail if mailed, in each case, delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in
accordance with the latest unrevoked direction from such party given in
accordance with this Section 9.01. 
As agreed to among the Borrower, the Administrative Agent and the
applicable Lenders from time to time in writing, notices and other communications
may also be delivered or furnished by e-mail; provided that approval of
such procedures may be limited to particular notices or communications.  All such notices and other communications sent
to an e-mail address shall be


 


142

















 


deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by
the “return receipt requested” function, as available, return e-mail or other
written acknowledgement), provided that if not given during the normal
business hours of the recipient, such notice or communication shall be deemed
to have been given at the opening of business on the next Business Day for the
recipient.


Section 9.02.  Survival of Agreement.  All covenants, agreements, representations
and warranties made by the Borrower herein or any other Loan Document, shall be
considered to have been relied upon by the Agents, the Lenders and the Issuing
Banks and shall survive the making by the Lenders of the Loans and the issuance
of Letters of Credit by each Issuing Bank, regardless of any investigation made
by the Agents, the Lenders or such Issuing Bank or on their behalf, and
notwithstanding that any Agent, any Lender or any Issuing Bank may have had
notice or actual knowledge of any Default at the time of any Credit Event shall
continue in full force and effect until the Termination Date.  The provisions of Sections 2.14, 2.16,
2.20 and 9.05 shall remain operative and in full force and effect
regardless of the expiration of the term of this Agreement, the consummation of
the transactions contemplated hereby, the repayment of any of the Loans, the
expiration of the Commitments, the expiration of any Letter of Credit, the
invalidity or unenforceability of any term or provision of this Agreement or
any other Loan Document, or any investigation made by or on behalf of the
Administrative Agent, the Collateral Agent, any Lender or any Issuing Bank.


Section 9.03.  Binding Effect.  This Agreement shall become effective when it
shall have been executed by Holdings, the Borrower and 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.


Section 9.04.  Successors and Assigns.  (a) 
Whenever in this Agreement any of the parties hereto is referred to,
such reference shall be deemed to include the permitted successors and assigns
of such party; and all covenants, promises and agreements by or on behalf of
the Borrower, the Administrative Agent, the Collateral Agent, any Issuing Bank
or the Lenders that are contained in this Agreement shall bind and inure to the
benefit of their respective permitted successors and assigns.


(b)           Each
Lender may assign to one or more assignees (in each case, other than to
Disqualified Institutions) all or a portion of its interests, rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans at the time owing to it); provided, however, that
(i) each of the Administrative Agent and the Borrower must give its prior
written consent to such assignment (which consent shall not be unreasonably
withheld or delayed); provided that no such consent shall be required to
any such assignment made to a Lender or an Affiliate or Related Fund of a
Lender (in each case, other than to Disqualified Institutions) (each, an “Eligible
Assignee”) and the consent of the Borrower shall not be required during the
continuance of any Event of Default arising under clause (b), (c),
(g)(i) or (h) of Section 7.01, (ii) in the case of any
assignment of a Revolving Credit Commitment, each Issuing Bank (to the extent
its L/C Exposure equals or exceeds $5,000,000) and the Swingline Lender must
give its prior written consent (which consent shall not be unreasonably
withheld or delayed), (iii) (A) in the case of any assignment, other than
assignments to any Eligible Assignee, the amount of the Revolving Credit
Commitment of the assigning Lender (or, in the


 


143

















 


case of an assignment of
Loans after the Revolving Credit Commitment has expired or been terminated, the
aggregate principal amount of the loans of the assigning Lenders) subject to
each such assignment (determined as of the date of the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $5,000,000 (or, if less, the entire remaining
amount of such Lender’s Revolving Credit Commitment (or Loans) and shall be in
an amount that is an integral multiple of $1,000,000 (or the entire remaining
amount of such Lender’s Revolving Credit Commitment (or Loans) of the
applicable Class), the amount of the Term Loan Commitment or Term Loans of the
assigning Lender subject to each such assignment (determined as of the date of
the Assignment and Acceptance with respect to such assignment is delivered to
the Administrative Agent) shall not be less than $1,000,000  (or if less, the entire remaining amount of
such Lender’s Term Loan Commitment or Term Loans) and shall be in an amount
that is an integral multiple of $1,000,000 
(or the entire remaining amount of such Lender’s Term Loan Commitment or
Term Loans of the applicable Class), provided, however, that
simultaneous assignments by or to two or more Related Funds shall be combined
for purposes of determining whether the minimum assignment requirement is met,
and (B) in the case of any assignment to any Eligible Assignee, after giving
effect to such assignment, the aggregate Revolving Credit Commitments (or
Loans), Term Loan Commitments or Term Loans of the assigning Lender and its
Affiliates and Related Funds shall be zero or not less than $1,000,000  and the aggregate Revolving Credit
Commitments (or Loans) or Term Loan Commitments or Term Loans of the assignee
Lenders and their Affiliates and Related Funds shall be not less than
$1,000,000, (iv) the parties to each such assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance (such Assignment and
Acceptance to be (A) electronically executed and delivered to the
Administrative Agent via an electronic settlement system then acceptable to the
Administrative Agent (or, if previously agreed with the Administrative Agent,
manually), and (B) delivered together with a processing and recordation fee of
$3,500, unless waived or reduced by the Administrative Agent in its sole
discretion; provided that only one such fee shall be payable in
connection with simultaneous assignments by or to two or more Related Funds)
and (v) the assignee, if it shall not be a Lender immediately prior to the
assignment, shall deliver to the Administrative Agent and the Borrower, an
Administrative Questionnaire and the tax forms required under Section
2.20(e) or (f), as applicable. 
Upon acceptance and recording pursuant to paragraph  (e) of
this Section 9.04, from and after the effective date specified in each
Assignment and Acceptance, (A) the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Lender under this Agreement and (B) the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an 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 2.14, 2.16, 2.20
and 9.05 with respect to facts and circumstances occurring prior to the
effective date of such assignment, as well as to any Fees accrued for its
account and not yet paid).  Any
assignment or transfer that does not comply with this paragraph 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
(f) of this Section 9.04.


(c)           By
executing and delivering an Assignment and Acceptance, the assigning Lender
thereunder and the assignee thereunder shall be deemed to confirm to and agree
with each other and the other parties hereto as follows:  (i) such assigning Lender warrants that it is


 


144

















 


the legal and beneficial
owner of the interest being assigned thereby free and clear of any adverse
claim and that its Term Loan Commitment and Revolving Credit Commitment, and
the outstanding balances of its Term Loans and Revolving Loans, in each case
without giving effect to assignments thereof which have not become effective,
are as set forth in such Assignment and Acceptance, (ii) except as set forth in
(i) above, such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement, or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement, any other Loan Document or any other instrument or document
furnished pursuant hereto, or the financial condition of Holdings, the Borrower
or any subsidiary or the performance or observance by Holdings, the Borrower or
any subsidiary of any of its obligations under this Agreement, any other Loan
Document or any other instrument or document furnished pursuant hereto, (iii)
such assignee represents and warrants that it is legally authorized to enter
into such Assignment and Acceptance, (iv) such assignee confirms that it has
received a copy of this Agreement, together with copies of the most recent
financial statements referred to in Section 3.05(a) or delivered
pursuant to Section 5.04 and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance, (v) such assignee will independently
and without reliance upon the Administrative Agent, the Collateral Agent, such
assigning Lender or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement, (vi) such
assignee appoints and authorizes the Administrative Agent and the Collateral
Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement as are delegated to the Administrative Agent and the
Collateral Agent, respectively, by the terms hereof, together with such powers
as are reasonably incidental thereto, (vii) such assignee agrees that it will
perform in accordance with their terms all the obligations which by the terms
of this Agreement are required to be performed by it as a Lender, and (viii) to
the extent applicable, such assignee is an Eligible Assignee and does not constitute
a Disqualified Institution.


(d)           The Administrative Agent, acting
solely for this purpose as an agent of the Borrower, shall maintain at one of
its offices a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders and any
changes thereto, whether by assignment or otherwise, and the Commitment of, and
principal amount of the Loans (and related interest amount and fees with
respect to such Loan) owing and paid to, each Lender pursuant to the terms
hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive, absent manifest effort and the Borrower, the Administrative Agent,
each Issuing Bank, the Collateral Agent 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 and Lenders at any reasonable time and
from time to time upon reasonable prior notice.


(e)           Upon
its receipt of, and consent to, a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative
Questionnaire completed in respect of the assignee (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph  (b) above, if applicable, and the written consent of
the Administrative Agent, the Borrower and the Issuing Banks to such


 


145
















 


assignment (in each case to
the extent required pursuant to paragraph  (b) above) and any
applicable tax forms required by Section 2.20(e) or (f), as
applicable, the Administrative Agent shall (i) accept such Assignment and
Acceptance and (ii) promptly record the information contained therein in the
Register. No assignment shall be effective unless it has been recorded in the
Register as provided in this paragraph (e).


(f)            Each Lender may without the consent
of the Borrower, the Swingline Lender, any Issuing Bank or the Administrative
Agent sell participations to one or more banks or other Persons (other than to
Disqualified Institutions) in all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment and the
Loans owing to it and its participations in the L/C Exposure and/or Swingline
Loans); provided that (i) such Lender’s obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) the participating banks or other Persons shall be
entitled to the benefit of the cost protection provisions contained in Sections
2.14, 2.16 and 2.20 to the same extent as if they were
Lenders (but, with respect to any particular participant, to no greater extent
than the Lender that sold the participation to such participant and in the case
of Section 2.20, only if such participant shall have provided any form
of information that it would have been required to provide under such Section
if it were a Lender), (iv) to the extent permitted by applicable law, each
participant also shall be entitled to the benefits of Section 9.06
as though it were a Lender, so long as such participant agrees to be subject to
Section 2.18 as though it were a Lender and (v) the Borrower, the
Administrative Agent, each Issuing Bank, the Swingline Lender and the Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender’s rights and obligations under this Agreement, and such Lender
shall retain the sole right to enforce the obligations of the Borrower relating
to the Loans or L/C Disbursements and to approve any amendment, modification or
waiver of any provision of this Agreement (other than amendments, modifications
or waivers described in clauses (i), (ii) and (iii) of Section
9.08(b) as it pertains to the Loans or Commitments in which such
participant has an interest). Each Lender selling a participation to a
participant (i) shall keep a register, meeting the requirements of Treasury
Regulation Section 5f.103-1(c), of each such participation, specifying
such participant’s entitlement to payments of principal and interest with
respect to such participation and (ii) shall provide the Administrative Agent
and the Borrower with the applicable forms, certificates and statements
described in Section 2.20(e) or (f) hereof, as applicable, as if
such participant was a Lender hereunder. Notwithstanding anything in clause
(ii) of the immediately preceding sentence to the contrary, each Lender
shall have the right to sell one or more participations to one or more Lenders
or other Persons that provide financing to such Lender in the form of sales and
repurchases of participations without having to satisfy the requirements set
forth therein.


(g)           Any Lender or participant may, in
connection with any assignment or participation or proposed assignment or
participation pursuant to this Section 9.04, disclose to the assignee or
participant or proposed assignee or participant any non-public information
relating to the Borrower furnished to such Lender by or on behalf of the
Borrower; provided that prior to any such disclosure, each such assignee
or participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree to preserve the
confidentiality of such non-public information on terms no less restrictive
than those applicable to the Lenders pursuant to Section 9.16.


 


146

















 


(h)           Any Lender may, without the consent
of the Borrower or the Administrative Agent, at any time assign all or any
portion of its rights under this Agreement to secure extensions of credit to
such Lender or in support of obligations owed by such Lender; provided
that (i) such assignment shall not increase the costs or expenses or otherwise
increase or change the obligations of Holdings or the Borrower hereunder or any
Loan Party under any other Loan Document and (ii) no such assignment shall
release a Lender from any of its obligations hereunder or substitute any such
assignee for such Lender as a party hereto.


(i)            Notwithstanding anything to the
contrary contained herein, any Lender (a “Granting Lender”) may grant to
a special purpose funding vehicle (an “SPC”), identified as such in
writing from time to time by the Granting Lender to the Administrative Agent
and the Borrower, the option to provide to the Borrower all or any part of any
Loan that such Granting Lender would otherwise be obligated to make to the
Borrower pursuant to this Agreement; provided that (i) nothing herein
shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC
elects not to exercise such option or otherwise fails to provide all or any
part of such Loan, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if,
such Loan were made by such Granting Lender. Each party hereto hereby agrees
that (x) neither the grant to any SPC nor the exercise by any SPC of such
option shall increase the costs or expenses or otherwise increase or change the
obligations of Holdings or the Borrower hereunder or any Loan Party under any
other Loan Document, (y) no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for which shall remain
with the Granting Lender) and (z) the Granting Lender shall for all purposes
remain the Lender of record hereunder. In addition, notwithstanding anything to
the contrary contained in this Section 9.04, any SPC may (A) with notice
to, but without the prior written consent of, the Borrower and the
Administrative Agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Loans to the Granting Lender and (B)
disclose on a confidential basis any non-public information relating to its
funding of Loans to any rating agency, commercial paper dealer or provider of any
surety, guarantee or credit or liquidity enhancement to such SPC.


(j)            The Borrower shall not assign or
delegate any of its rights or duties hereunder (other than in a transaction
permitted by Section 6.04) without the prior written consent of the
Administrative Agent, each Issuing Bank and each Lender, and any attempted
assignment without such consent shall be null and void.


(k)           If the Borrower wishes to replace the
Loans or Commitments under any Credit Facility with ones having different
terms, it shall have the option, with the consent of the Administrative Agent
and subject to at least three Business Days’ advance notice to the Lenders
under such Credit Facility, instead of prepaying the Loans or reducing or
terminating the Commitments to be replaced, to (i) require the Lenders under
such Credit Facility to assign such Loans or Commitments to the Administrative
Agent or its designees and (ii) amend the terms thereof in accordance with Section
9.08 (with such replacement, if applicable, being deemed to have been made
pursuant to Section 9.08(d)). Pursuant to any such assignment, all Loans
and Commitments to be replaced shall be purchased at par (allocated among the
Lenders under such Credit Facility in the same manner as would be required if
such Loans were being optionally prepaid or such Commitments were being
optionally reduced or terminated by the Borrower),


 


147

















 


accompanied by payment of
any accrued interest and fees thereon and any amounts owing pursuant to Section
2.16. By receiving such purchase price, the Lenders under such Credit
Facility shall automatically be deemed to have assigned the Loans or
Commitments under such Credit Facility pursuant to the terms of an Assignment
and Acceptance, and accordingly no other action by such Lenders shall be
required in connection therewith. The provisions of this paragraph are intended
to facilitate the maintenance of the perfection and priority of existing
security interests in the Collateral during any such replacement.


Section 9.05. Expenses;
Indemnity. (a) If the Closing Date occurs, the Borrower agrees to pay (i)
all reasonable documented out-of-pocket expenses (but limited, as to legal fees
and expenses, to those of White & Case LLP, counsel for the Administrative
Agent and the Initial Lenders taken as a whole, and, if reasonably necessary,
of one local counsel in each material jurisdiction) incurred by the
Administrative Agent and the Initial Lenders, in connection with the
syndication of the Credit Facilities and execution, the preparation and
administration of this Agreement and the other Loan Documents or in connection
with any amendments, modifications or waivers of the provisions hereof or
thereof requested by or for the benefit of the Borrower (including, without
limitation, the reasonable fees, disbursements and other charges of one counsel
identified herein (plus one local counsel in each material
jurisdiction)) and (ii) all reasonable out-of-pocket expenses (but limited, as
to legal fees and expenses, to one counsel for all such Persons taken as a
whole, and, if reasonably necessary, of one local counsel to all such Persons
taken as a whole in any material jurisdiction) incurred by the Agents, any
Issuing Bank, the Swingline Lender or any Lender in connection with the
enforcement or protection of its rights or remedies in connection with this
Agreement and the other Loan Documents or in connection with the Loans made or
Letters of Credit issued hereunder.


(b)           The Borrower agrees to indemnify the
Administrative Agent, the Lenders and their affiliates and their respective
officers, directors, employees, trustees, advisors, agents and controlling
persons involved in the Transactions (each such Person being called an “Indemnitee”)
against, and to hold each Indemnitee harmless from, any and all actual
out-of-pocket costs, out-of-pocket expenses (including reasonable fees,
documented out-of-pocket disbursements and other charges of one counsel to the
Indemnitees, taken as a whole, and one local counsel to the Indemnitees taken
as a whole in each material jurisdiction; provided that if (i) one or
more Indemnitees shall have reasonably concluded that there are legal defenses
available to it that are different from or in addition to those available to
one or more other Indemnitees or (ii) the representation of the Indemnitees (or
any portion thereof) by the same counsel would be inappropriate due to actual
differing interests between them, then such expenses shall include the
reasonable fees, out-of-pocket disbursements and other charges of one separate
counsel to such Indemnitees, taken as a whole, in each relevant jurisdiction),
and liabilities of such Indemnitee arising out of or in connection with (w) the
execution or delivery of this Agreement or any other Loan Document or any
agreement or instrument contemplated thereby, the performance by the parties
thereto of their respective obligations thereunder or the consummation of the
Transactions and the other transactions contemplated thereby (including the
syndication of the Credit Facilities), (x) the use of the proceeds of the Loans
or issuance of Letters of Credit, (y) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto (and regardless of whether
such matter is initiated by a third party or by the Borrower, any other Loan
Party or any of their respective Affiliates), or (z) any actual or alleged
presence or Release of Hazardous


 


148

















 


Materials on any property
currently or formerly owned or operated by Holdings, the Borrower or any of the
subsidiaries, or any liability under Environmental Laws related in any way to
Holdings, the Borrower or the subsidiaries; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such costs,
expenses or liabilities (x) resulted from the gross negligence, bad faith,
fraud or willful misconduct of such Indemnitee (or its Affiliates and the
respective directors, officers, employees and agents of such Indemnitee and
such Indemnitee’s Affiliates) (each, a “related party” of such Indemnitee) or
breach of its (or any of its related parties’) obligations hereunder or under
any of the other Loan Documents or in connection with any transaction
contemplated hereby or thereby, (y) relate to the presence or Release of
Hazardous Materials that first occur at any property owned by Holdings or the
Borrower after such property is transferred to any Indemnitee, any of its
related parties or any of their respective successors or assigns by
foreclosure, deed-in-lieu of foreclosure or similar transfer or (z) resulted
from any dispute solely among Indemnitees and (or their related parties) not
involving the Borrower, the Sponsor or their respective Affiliates. The
Borrower shall have no obligation to reimburse any Indemnitee for fees and
expenses unless such Indemnitee provides the Borrower with an undertaking in
which such Indemnitee agrees to refund and return any and all amounts paid by
the Borrower to such Indemnitee to the extent any of the foregoing items in clauses
(x) and (y) occurs. Notwithstanding the foregoing, this Section 9.05
shall not apply to Tax matters, which shall be governed exclusively by Section
2.20.


(c)           To the extent that the Borrower fails
to pay any amount required to be paid by it to the Arrangers, the
Administrative Agent or any other Indemnitee related thereto under paragraph
(a) or (b) of this Section (and without limiting its obligation
to do so), each Lender severally agrees to pay to the Arrangers, such
Indemnitee and the Administrative Agent, 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 the case may be, was incurred by or asserted against the
Arrangers, the Agents, the Issuing Banks, the Swingline Lender or such
Indemnitee in its capacity as such. For purposes hereof, a Lender’s “pro rata
share” shall be determined based upon its share of the sum of the Aggregate
Revolving Credit Exposure, outstanding Term Loans and unused commitments at the
time.


(d)           To the extent permitted by applicable
law, no party hereto shall assert, and each party hereto hereby waives, any
claim from (i) the use by others of information or other materials obtained
through electronic, telecommunications or other information transmission
systems, except to the extent such damages have resulted from the willful
misconduct, bad faith, fraud, gross negligence or breach of the Loan Documents
of such party of any of its Affiliates or the respective directors, officers,
employees and agents of such party and such party’s Affiliates and (ii) 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.


(e)           The provisions of this Section 9.05
shall survive the expiration of the term of this Agreement, the consummation of
the transactions contemplated hereby, the repayment of any of the Loans, the
expiration of the Commitments, the expiration of any Letter of Credit, the
invalidity or unenforceability of any term or provision of this Agreement or
any other Loan


 


149

















 


Document, or any
investigation made by or on behalf of the Administrative Agent, the Collateral
Agent, any Lender or the Issuing Banks. All amounts due under this Section 9.05
shall be payable within 30 days after receipt of an invoice relating thereto setting
forth such amounts in reasonable detail.


Section 9.06. Right of
Setoff; Payments Set Aside. (a) If an Event of Default shall have occurred
and be continuing, each Lender is hereby authorized at any time and from time
to time, except to the extent prohibited by law, without prior notice to the
Borrower or any other Loan Party, any such notice being waived by the Borrower
(on its own behalf and on behalf of each Loan Party and its subsidiaries) to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) (other than tax, payroll, employee benefit, fiduciary or
trust accounts) at any time held and other Indebtedness at any time owing by
such Lender to or for the credit or the account of the Borrower against any of and
all the obligations of the Borrower now or hereafter due and owing under this
Agreement and other Loan Documents held by such Lender, irrespective of whether
or not such Lender shall have made any demand under this Agreement or such
other Loan Document and although such obligations may be denominated in a
currency different from that of the applicable deposit or Indebtedness. The
rights of each Lender under this Section 9.06 are in addition to other
rights and remedies (including other rights of setoff) which such Lender may
have. Each Lender agrees promptly to notify the Borrower and the Administrative
Agent after any such set off and application made by such Lender; provided
that the failure to give such notice shall not affect the validity of such set-off
and application.


(b)           To the extent that any payment by or
on behalf of the Borrower is made to any Agent or any Lender, or any Agent or
any Lender exercises its right of setoff, and such payment or the proceeds of
such setoff or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by such Agent or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, then (i) to the extent of
such recovery the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (ii) each Lender
severally agrees to pay to the Administrative Agent upon demand its applicable
share of any amount so recovered from or repaid by any Agent, plus
interest thereon from the date of such demand to the date such payment is made
at a rate per annum equal to the Federal Funds Effective Rate from time to time
in effect.


Section 9.07. Applicable
Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN LETTERS OF
CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. EACH
LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE
WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO SUCH LAWS
OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY
CREDITS MOST RECENTLY PUBLISHED AND IN EFFECT, ON THE DATE SUCH LETTER OF
CREDIT WAS ISSUED, BY THE INTERNATIONAL CHAMBER OF COMMERCE (THE “UNIFORM
CUSTOMS”) AND, AS


 


150

















 


TO MATTERS NOT GOVERNED
BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW YORK.


Section 9.08. Waivers;
Amendment. (a) No failure or delay of the Administrative Agent, the
Collateral Agent, any Lender or any Issuing Bank in exercising any power or
right 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
Collateral Agent, each Issuing Bank 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 this
Agreement or any other Loan Document or consent to any departure by the
Borrower or any other Loan Party therefrom shall in any event be effective
unless the same shall be permitted by clause (b) below, and then such
waiver or consent shall be effective only in the specific instance and for the
purpose for which given. No notice or demand on the Borrower in any case shall
entitle the Borrower to any other or further notice or demand in similar or
other circumstances.


(b)           Subject to Section 2.24 and clause
(d) below, and except for those actions expressly permitted to be taken by
the Agents, neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except pursuant
to an agreement or agreements in writing entered into by the Required Lenders
and the Loan Parties that are party thereto and are affected by such waiver,
amendment or modification and acknowledged by the Administrative Agent; provided,
however, that no such agreement shall (i) reduce the principal amount
of, or extend or waive any scheduled amortization payment or the final
scheduled maturity date of or date for the payment of any interest on, any Loan
or any date for reimbursement of an L/C Disbursement, forgive any such payment
or any part thereof, or decrease the rate of interest on any Loan or L/C
Disbursement, without the prior written consent of each Lender directly and
adversely affected thereby (it being understood that any change to the
component definitions of the Senior Secured Net Leverage Ratio affecting the
determination of interest and the waiver of a Default, Event of Default or
default interest shall only require the consent of Holdings, the Borrower and the
Required Lenders), (ii) increase or extend the Commitment or decrease or extend
the date for payment of any Fees of any Lender without the prior written
consent of such Lender, including, without limitation, amendments to Section
2.05(d) and the definition of Repricing Transaction (it being understood
that any change to the component definitions of the Senior Secured Net Leverage
Ratio affecting the determination of any Fee and the waiver of a Default, Event
of Default or default fees shall only require the consent of the Borrower and
the Required Lenders), (iii) amend or modify the provisions of Section 2.17,
the provisions of Section 2.18, the provisions of Section 9.04(j)
(it being understood that any change to Section 6.04 shall only require
approval of the Required Lenders) or the provisions of this Section 9.08
(except as set forth below) or release all or substantially all of the
Guarantors or all or substantially all of the Collateral (except as permitted
under Sections 6.04, 6.05 or 9.18 and the Guarantee
and Collateral Agreement), without the prior written consent of each Lender, or
(iv) reduce the percentage contained in the definition of the term “Required
Lenders”, “Required Class Lenders” or “Required Revolving Lenders”
without the prior written consent of each Lender, each Lender of the affected
Class or each Revolving Credit Lender, respectively (it being understood that
with the consent of the Required Lenders,


 


151

















 


the Required Class Lenders
or the Required Revolving Lenders, additional extensions of credit pursuant to
this Agreement may be included in the determination of the Required Lenders,
Required Revolving Lenders or Required Class Lenders on substantially the same
basis as the Commitments and extensions of credit thereunder on the date hereof
and this Section may be amended to reflect such extension of credit); provided,
further, that (w) no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent, the Collateral Agent,
any Issuing Bank or the Swingline Lender hereunder or under any other Loan
Document without the prior written consent of the Administrative Agent, the
Collateral Agent, such Issuing Bank or the Swingline Lender, as the case may
be, (x) no such agreement shall make any change to the documents that by its
terms affects the rights of any Class of Lenders to receive payments in any
manner different than any other Class of Lenders without the written consent of
the Required Class Lenders of such Class; and (y) Section 9.04(i) may
not be amended, waived or otherwise modified without the consent of each
Granting Lender all or any part of whose Loans are being funded by an SPC at
the time of such amendment, waiver or other modification.


(c)           Notwithstanding the foregoing, in
addition to any credit extensions and related Incremental Amendments
effectuated without the consent of Lenders in accordance with Section 2.24,
this Agreement (including this Section 9.08 and Section 2.17) may
be amended (or amended and restated) with the written consent of the Required
Lenders, the Administrative Agent 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 outstanding thereunder and the accrued interest and
fees in respect thereof to share ratably in the benefits of this Agreement and
the other Loan Documents with the Term Loans and the Revolving Loans and the
accrued interest and Fees in respect thereof, (ii) to include appropriately the
Lenders holding such credit facilities in any determination of the Required
Lenders, the Required Revolving Lenders, the Required Class Lenders and other
definitions related to such new credit facilities and (iii) to provide class
protection for any additional credit facilities in a manner consistent with
those provided herein for the Classes of Lenders contemplated by this Agreement
as in effect on the Closing Date.


(d)           Notwithstanding the foregoing, 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 in
whole, but not in part, of any Class of outstanding Term Loans or any then
outstanding Class of Replacement Term Loans (“Refinanced Term Loans”)
with a replacement term loan tranche hereunder (“Replacement Term Loans”),
provided that (i) the aggregate principal amount of such Replacement
Term Loans shall not exceed the aggregate principal amount of such Refinanced
Term Loans, (ii) the Applicable Percentage for such Replacement Term Loans
shall not be higher than the Applicable Percentage for such Refinanced 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 Term Loans at the time of such refinancing (without giving effect to
annual amortization on any Refinanced Term Loan Facility not in excess of 1% of
the principal amount thereof) 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 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 Term Loans in effect immediately prior to such refinancing;


 


152

















 


provided, further
that to the extent of any conflict or inconsistency between this Section
9.08(d) and Section 2.24, Section 2.24 shall control in all
respects.


(e)           Notwithstanding the foregoing, any
amendment, modification or waiver of, or consent with respect to Section
2.13(e) with respect to the application of any mandatory prepayment that
results in a Class of Lenders being allocated a lesser repayment than such
Class would otherwise have been entitled to in the absence of such amendment,
modification or waiver, shall require the consent of the Required Class Lenders
or the Required Revolving Lenders, as applicable for such affected Class
(except in the case where additional extensions of terms loans are being
afforded substantially the same treatment afforded to the Term Loans pursuant
to this Agreement on the Closing Date).


(f)            Each waiver, amendment,
modification, supplement or consent made or given pursuant to this Section
9.08 shall be effective only in the specific instance and for the specific
purpose for which given, and such waiver, amendment, modification or supplement
shall apply equally to each of the Lenders and shall be binding on the Loan
Parties, the Lenders, the Agents and all future holders of the Loans and
Commitments.


(g)           Further, notwithstanding anything to
the contrary contained in this Section 9.08, if following the
Closing Date, the Administrative Agent and the Borrower shall have agreed in
their sole and absolute discretions that there is an obvious error or any error
or omission of a technical or immaterial nature, in each case, in any provision
of the Loan Documents, then the Administrative Agent and the Borrower shall be
permitted to amend such provision and such amendment shall become effective
without any further action or consent of any other party to any Loan Documents
if the same is not objected to in writing by the Required Lenders within five
Business Days following receipt of notice thereof.


Section 9.09. Interest
Rate Limitation. Notwithstanding anything herein to the contrary, if at any
time the interest rate applicable to any Loan or participation in any L/C
Disbursement, together with all fees, charges and other amounts which are
treated as interest on such Loan or participation in such L/C Disbursement
under applicable law (collectively, the “Charges”), shall exceed the
maximum lawful rate (the “Maximum Rate”) which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan or
participation in accordance with applicable law, the rate of interest payable
in respect of such Loan or participation 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 or participation but were not payable as a result of the operation
of this Section 9.09 shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or participations or periods
shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount shall have been received by such Lender.


Section 9.10. Entire
Agreement. This Agreement, the Fee Letter and the other Loan Documents
constitute the entire contract between the parties relative to the subject
matter hereof. Any other previous agreement among the parties with respect to
the subject matter hereof is superseded by this Agreement and the other Loan
Documents. Nothing in this Agreement or in the other Loan Documents, expressed
or implied, is intended to confer upon any Person (other than the parties
hereto and thereto, their respective successors and assigns


 


153

















 


permitted hereunder
(including any Affiliate of any Issuing Bank that issues any Letter of Credit)
and, to the extent expressly contemplated hereby, the Indemnitees, the
Arrangers, the Related Parties of each of the Administrative Agent, the
Collateral Agent, the Issuing Banks and the Lenders) any rights, remedies,
obligations or liabilities under or by reason of this Agreement or the other
Loan Documents.


Section 9.11. 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
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. 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 AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.


Section 9.12. Severability.
In the event any one or more of the provisions contained in this Agreement or
in any other Loan Document should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein and therein shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.


Section 9.13. Counterparts.
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, and shall
become effective as provided in Section 9.03. Delivery of an executed
signature page to this Agreement by facsimile transmission or electronic mail
(by .pdf file) shall be as effective as delivery of a manually signed
counterpart of this Agreement.


Section 9.14. 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 are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.


Section 9.15. Jurisdiction;
Consent to Service of Process. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or Federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or the other Loan Documents, 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


 


154

















 


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 shall affect any right that the Administrative Agent, the Collateral
Agent, the Issuing Banks or any Lender may otherwise have to bring any action
or proceeding relating to this Agreement or the other Loan Documents against
Holdings, the Borrower or their respective properties in the courts of any
jurisdiction.


(b)           Each of the parties hereto hereby
irrevocably and unconditionally waives, to the fullest extent it may legally
and effectively do so, any objection which 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 the other Loan Documents in any New York State or Federal
court. 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.


(c)           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 will affect the right of any
Person to this Agreement to serve process in any other manner permitted by law.


Section 9.16. Confidentiality.
Each of the Administrative Agent, the Collateral Agent, the Arrangers, the
Issuing Bank 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’ (other than Excluded Parties, trustees, officers,
directors, 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 agree to
keep such Information confidential) in connection with the transactions
contemplated or permitted hereby, (b) to the extent requested by any
Governmental Authority having jurisdiction over such Person (including any
Governmental Authority regulating any Lender or its Affiliates), (c) to the
extent required by applicable laws or regulations or by any subpoena or similar
legal process (provided that the Administrative Agent, the Collateral
Agent, such Arranger, such Issuing Bank or such Lender that discloses any
Information pursuant to this clause (c) shall provide the Borrower with
prompt notice of such disclosure and an opportunity to contest such disclosure
as long as furnishing such notice and opportunity would not result in the
Lenders’ violation of applicable law, to the extent permitted by applicable
law), (d) to the extent reasonably necessary in connection with the exercise of
any remedies hereunder or under the other Loan Documents or any suit, action or
proceeding relating to the enforcement of its rights hereunder or thereunder,
(e) subject to an agreement containing provisions at least as restrictive as
those of this Section 9.16 (or as otherwise may be acceptable to
the Borrower), to (i) any actual or prospective assignee of or participant in
any of its rights or obligations under this Agreement and the other Loan
Documents, (ii) any pledgee referred to in Section 9.04(h) or (iii) any
actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower, any subsidiary or any Affiliate thereof
or any of their respective obligations, (f) with the prior written consent of
the Borrower, (g) to any Rating Agency when required by it (it being understood
that, prior to any such disclosure, such Rating Agency shall undertake to
preserve the confidentiality of any Information relating to the Loan Parties
received by it from such Person) or (h) to the extent such Information becomes
publicly available other than as a result of a breach of this Section 9.16.
For the purposes of this Section, “Information”


 


155

















 


shall mean all
information received from the Borrower, Holdings or any Subsidiary and related
to Holdings, the Borrower, the Subsidiaries or their business, other than any
such information that is publicly available to the Administrative Agent, the
Collateral Agent, any Arranger, any Issuing Bank or any Lender, other than by
reason of disclosure by Administrative Agent, the Collateral Agent, any
Arranger, any Issuing Bank or any Lender in breach of this Section 9.16
or other confidentiality obligations in favor of the Loan Parties.


Section 9.17. No
Advisory or Fiduciary Responsibility. In connection with all aspects of
each transaction contemplated hereby (including in connection with any
amendment, waiver or other modification hereof or of any other Loan Document),
each of Holdings and the Borrower acknowledges and agrees, and acknowledges its
Affiliates’ understanding, that: (i) (A) the arranging and other services
regarding this Agreement provided by the Administrative Agent and the Arrangers
are arm’s-length commercial transactions between the Borrower and its
Affiliates, on the one hand, and the Administrative Agent and the Arrangers on
the other hand, (B) each of Holdings and the Borrower has consulted its own
legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate, and (C) each of Holdings and the Borrower is capable of evaluating,
and understands and accepts, the terms, risks and conditions of the
transactions contemplated hereby and by the other Loan Documents; (ii) (A) the
Administrative Agent and each Arranger is and has been acting solely as a
principal and, except as expressly agreed in writing by the relevant parties,
has not been, is not, and will not be acting as an advisor, agent or fiduciary
for Holdings or the Borrower or any of its Affiliates, or any other Person and
(B) neither the Administrative Agent nor any Arranger has any obligation to
Holdings or the Borrower or any of its Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth
herein and in the other Loan Documents; and (iii) the Administrative Agent and
the Arrangers and their respective Affiliates may be engaged in a broad range
of transactions that involve interests that differ from those of each of
Holdings and the Borrower and its Affiliates, and neither the Administrative
Agent nor any Arranger has any obligation to disclose any of such interests to
Holdings, the Borrower or its Affiliates. To the fullest extent permitted by
law, each of Holdings and the Borrower hereby waives and releases any claims
that it may have against the Administrative Agent and the Arrangers with
respect to any breach or alleged breach of agency or fiduciary duty in
connection with any aspect of any transaction contemplated hereby.


Section 9.18. Release
of Collateral. The Lenders irrevocably authorize the Collateral Agent (and
the Collateral Agent agrees):


(a)           to release any Lien
on any property granted to or held by the Collateral Agent or the
Administrative Agent under any Loan Document, (w) upon the Termination Date
(and, concurrently therewith, to release all the Loan Parties from their
obligations under the Loan Documents (other than those that specifically
survive the Termination Date)), (x) that is sold or to be sold as part of or in
connection with any sale permitted hereunder or under any other Loan Document
to any Person other than a Loan Party, (y) subject to Section 9.08,
if approved, authorized or ratified in writing by the Required Lenders, or (z)
owned by a Subsidiary Guarantor upon release of such Guarantor from its
obligations under its Guaranty pursuant to clause (c) below;


 


156

















 


(b)           at the request of
the Borrower, to subordinate any Lien on any property granted to or held by the
Administrative Agent under any Loan Document to the holder of any Lien on such
property that is permitted by clauses  (f), (h) and (s)
of the definition of Permitted Liens; and


(c)           to release any
Subsidiary Guarantor from its obligations under any Loan Document to which it
is a party if such Person ceases to be a Restricted Subsidiary constituting a
Guarantor as a result of a transaction or designation permitted hereunder; provided
that no such release shall occur if such Guarantor continues to be a guarantor
in respect of the New Senior Notes, any Junior Financing and any Refinancing
Indebtedness in respect thereof unless and until such Guarantor is (or is being
substantially simultaneously) released from its guarantee with respect to the
New Senior Notes, such Junior Financing and any Refinancing Indebtedness in
respect thereof.


Upon request by any Agent
at any time, the Required Lenders will confirm in writing such Agent’s
authority to release its interest in particular types or items of property, or
to release any Subsidiary Guarantor from its obligations under the Loan
Documents pursuant to this Section 9.18. In each case as specified in
this Section 9.18, the relevant Agent will, at the Borrower’s expense,
execute and deliver to the applicable Loan Party such documents as such Loan
Party may reasonably request to evidence the release of such item of Collateral
from the assignment and security interest granted under the Loan Documents, or
to release such Loan Party from its obligations under the Loan Documents, in
each case, in accordance with the terms of the Loan Documents and this Section
9.18.


Section 9.19. USA
PATRIOT Act Notice. Each Lender and the Administrative Agent (for itself
and not on behalf of any Lender) hereby notifies the Loan Parties that pursuant
to the requirements of the USA PATRIOT Act, it is required to obtain, verify
and record information that identifies the Loan Parties, which information
includes the name and address of the Loan Parties and other information that
will allow such Lender or the Administrative Agent, as applicable, to identify
the Loan Parties in accordance with the USA PATRIOT Act.


Section 9.20. Lender
Action. Each Lender agrees that it shall not take or institute any actions
or proceedings, judicial or otherwise, for any right or remedy against any Loan
Party or any other obligor under any of the Loan Documents or any Hedging
Obligation (including the exercise of any right of setoff, rights on account of
any banker’s lien or similar claim or other rights of self-help), or institute
any actions or proceedings, or otherwise commence any remedial procedures, with
respect to any Collateral or any other property of any such Loan Party, without
the prior written consent of the Administrative Agent. The provision of this Section
9.20 are for the sole benefit of the Lenders and shall not afford any right
to, or constitute a defense available to, any Loan Party.


Section 9.21. Effectiveness
of Merger. Upon the consummation of the Merger, the Company shall
automatically succeed to all the rights and obligations of Merger Sub under
this Agreement, without any further action by any Person.


 


157

















 


ARTICLE X


 


Holdings Guaranty


Section 10.01. Guaranty.
In order to induce the Administrative Agent, the Collateral Agent, the Issuing
Banks and the Lenders to enter into this Agreement and to extend credit
hereunder, and to induce the other Guaranteed Creditors to enter into Hedge
Obligations and Cash Management Obligations with one or more Loan Parties and
in recognition of the direct benefits to be received by Holdings from the
proceeds of the Loans, the issuance of the Letters of Credit and the entering
into of such Hedge Obligations and Cash Management Obligations, Holdings hereby
agrees with the Guaranteed Creditors as follows: Holdings hereby
unconditionally and irrevocably guarantees as primary obligor and not merely as
surety the full and prompt payment when due, whether upon maturity,
acceleration or otherwise, of any and all of the Guaranteed Obligations of the
Borrower to the Guaranteed Creditors. If any or all of the Guaranteed Obligations
of the Borrower to the Guaranteed Creditors become due and payable hereunder,
Holdings, unconditionally and irrevocably, promises to pay such Indebtedness to
the Administrative Agent and/or the other Guaranteed Creditors, or order,
promptly upon written demand, together with any and all actual reasonable
out-of-pocket expenses which may be incurred by the Administrative Agent and
the other Guaranteed Creditors in collecting any of the Guaranteed Obligations
in each case to the extent reimbursable pursuant to Section 9.05. If
claim is ever made upon any Guaranteed Creditor for repayment or recovery of
any amount or amounts received in payment or on account of any of the
Guaranteed Obligations and any of the aforesaid payees repays all or part of
said amount by reason of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over such payee or any of its property
or (ii) any settlement or compromise of any such claim effected by such payee
with any such claimant (including the Borrower), then and in such event
Holdings agrees that any such judgment, decree, order, settlement or compromise
shall be binding upon Holdings, notwithstanding any revocation of this Holdings
Guaranty or other instrument evidencing any liability of the Borrower, and
Holdings shall be and remain liable to the aforesaid payees hereunder for the
amount so repaid or recovered to the same extent as if such amount had never
originally been received by any such payee.


Section 10.02. Nature
of Liability. The liability of Holdings hereunder is primary, absolute and
unconditional, exclusive and independent of any security for or other guaranty
of the Guaranteed Obligations, whether executed by any other guarantor or by
any other party, and to the extent permitted by applicable law, the liability
of Holdings hereunder shall not be affected or impaired by (a) any direction as
to application of payment by the Borrower or by any other Person, (b) any other
continuing or other guaranty, undertaking or maximum liability of a Guarantor
or of any Person as to the Guaranteed Obligations, (c) any payment on or in
reduction of any such other guaranty or undertaking (other than to the extent
of such payment or reduction), (d) any dissolution, termination or increase, decrease
or change in personnel by the Borrower, (e) any payment made to any Guaranteed
Creditor on the Guaranteed Obligations which any such Guaranteed Creditor
repays to the Borrower pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief proceeding, and
Holdings waives any right to the deferral or modification of its obligations
hereunder by reason of any such proceeding, (f) any action or inaction by the
Guaranteed Creditors as


 


158

















 


contemplated in Section
10.04 or (g) any invalidity, irregularity or enforceability of all or any
part of the Guaranteed Obligations or of any security therefor.


Section 10.03. Independent
Obligation. The obligations of Holdings hereunder are independent of the
obligations of any other Guarantor, any other Person or the Borrower, and a
separate action or actions may be brought and prosecuted against Holdings
whether or not action is brought against any other Guarantor, any other Person
or the Borrower and whether or not any other guarantor, any other party or the
Borrower be joined in any such action or actions. Holdings waives, to the
fullest extent permitted by law, the benefit of any statute of limitations
affecting its liability hereunder or the enforcement thereof. To the extent
permitted by applicable law, any payment by the Borrower or other circumstance
which operates to toll any statute of limitations as to the Borrower shall
operate to toll the statute of limitations as to Holdings.


Section 10.04. Authorization.
Holdings authorizes the Guaranteed Creditors without notice or demand (except
as shall be required by applicable statute and cannot be waived), and to the
extent permitted by applicable law, without affecting or impairing its
liability hereunder, from time to time to:


(a)           change the manner,
place or terms of payment of, and/or change or extend the time of payment of,
renew, increase, accelerate or alter, any of the Guaranteed Obligations
(including any increase or decrease in the principal amount thereof or the rate
of interest or fees thereon), any security therefor, or any liability incurred
directly or indirectly in respect thereof, and this Holdings Guaranty shall
apply to the Guaranteed Obligations as so changed, extended, renewed or
altered;


(b)           take and hold
security for the payment of the Guaranteed Obligations and sell, exchange,
release, impair, surrender, realize upon or otherwise deal with in any manner
and in any order any property by whomsoever at any time pledged or mortgaged to
secure, or howsoever securing, the Guaranteed Obligations or any liabilities
(including any of those hereunder) incurred directly or indirectly in respect
thereof or hereof, and/or any offset there against;


(c)           exercise or refrain
from exercising any rights against the Borrower, any other Credit Party or
others or otherwise act or refrain from acting;


(d)           release or
substitute any one or more endorsers, guarantors, the Borrower, other Loan
Parties or other obligors;


(e)           settle or compromise
any of the Guaranteed Obligations, any security therefor or any liability
(including any of those hereunder) incurred directly or indirectly in respect
thereof or hereof, and may subordinate the payment of all or any part thereof
to the payment of any liability (whether due or not) of the Borrower to its
creditors other than the Guaranteed Creditors;


(f)            apply any sums by
whomsoever paid or howsoever realized to any liability or liabilities of the
Borrower to the Guaranteed Creditors regardless of what liability or
liabilities of the Borrower remain unpaid;


 


159

















 


(g)           consent to or waive
any breach of, or any act, omission or default under, this Agreement, any other
Credit Document, any Hedging Obligation or any Cash Management Obligation in
each case, constituting Secured Obligations, or any of the instruments or
agreements referred to herein or therein, or otherwise amend, modify or
supplement this Agreement, any other Loan Document, any Hedging Obligation or
any Cash Management Obligation or any of such other instruments or agreements;
and/or


(h)           take any other
action which would, under otherwise applicable principles of common law, give
rise to a legal or equitable discharge of Holdings from its liabilities under
this Holdings Guaranty (other than repayment or performance).


Section 10.05. Reliance.
It is not necessary for any Guaranteed Creditor to inquire into the capacity or
powers of Holdings or any of its Subsidiaries or the officers, directors, partners
or agents acting or purporting to act on their behalf, and any Guaranteed
Obligations made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.


Section 10.06. Subordination.
Any Indebtedness of the Borrower now or hereafter owing to Holdings is hereby
subordinated to the Guaranteed Obligations owing to the Guaranteed Creditors
until the occurrence of the Termination Date; and if the Administrative Agent
so requests (in accordance with Section 7.01) at a time when an
Event of Default exists, all such Indebtedness of the Borrower to Holdings
shall be collected, enforced and received by Holdings for the benefit of the
Guaranteed Creditors and be paid over to the Administrative Agent on behalf of
the Guaranteed Creditors on account of the Guaranteed Obligations to the
Guaranteed Creditors, but without affecting or impairing in any manner the
liability of Holdings under the other provisions of this Holdings Guaranty
(other than to the extent of such repayment or performance of the Guaranteed
Obligations). Without limiting the generality of the foregoing, Holdings hereby
agrees with the Guaranteed Creditors that it will not exercise any right of
subrogation which it may at any time otherwise have as a result of this
Holdings Guaranty (whether contractual, under Section 509 of the Bankruptcy
Code or otherwise) until all Guaranteed Obligations (other than contingent
obligations, Hedging Obligations or Cash Management Obligations) have been paid
in full.


Section 10.07. Waiver.
(a) Holdings waives any right (except as shall be required by applicable law
and cannot be waived) to require any Guaranteed Creditor to (i) proceed
against the Borrower, any other Guarantor or any Person, (ii) proceed against
or exhaust any security held from the Borrower, any other guarantor or any
other party or (iii) pursue any other remedy in any Guaranteed Creditor’s
power whatsoever. Holdings waives any defense based on or arising out of any
defense of the Borrower, any other guarantor or any other Person, other than
payment of the Guaranteed Obligations to the extent of such payment, based on
or arising out of the disability of the Borrower, Holdings, any other guarantor
or any other party, or the validity, legality or unenforceability of the
Guaranteed Obligations or any part thereof from any cause, or the cessation
from any cause of the liability of the Borrower other than payment of the
Guaranteed Obligations to the extent of such payment. To the extent permitted
by applicable law, the Guaranteed Creditors may, at their election, foreclose
on any security held by the Administrative Agent, the Collateral Agent or any
other Guaranteed Creditor by one or more judicial or nonjudicial sales, whether
or not every aspect of any such sale is


 


160

















 


commercially reasonable
(to the extent such sale is permitted by applicable law), or exercise any other
right or remedy the Guaranteed Creditors may have against the Borrower or any
other Person, or any security, without affecting or impairing in any way the
liability of Holdings hereunder except to the extent the Guaranteed Obligations
have been paid. To the extent permitted by applicable law, Holdings waives any
defense arising out of any such election by the Guaranteed Creditors, even
though such election operates to impair or extinguish any right of
reimbursement or subrogation or other right or remedy of Holdings against the
Borrower or any other Person or any security.


(b)           To the extent permitted by applicable
law, Holdings waives all presentments, demands for performance, protests and
notices, including, without limitation, notices of nonperformance, notices of
protest, notices of dishonor, notices of acceptance of this Holdings Guaranty,
and notices of the existence, creation or incurring of new or additional
Guaranteed Obligations. Holdings assumes all responsibility for being and
keeping itself informed of the Borrower’s financial condition and assets, and
of all other circumstances bearing upon the risk of nonpayment of the
Guaranteed Obligations and the nature, scope and extent of the risks which
Holdings assumes and incurs hereunder, and agrees that neither the
Administrative Agent nor any of the other Guaranteed Creditors shall have any
duty to advise Holdings of information known to them regarding such
circumstances or risks.


(c)           Holdings warrants and agrees that
each of the waivers set forth above is made with full knowledge of its
significance and consequences and that if any of such waivers are determined to
be contrary to any applicable law of public policy, such waivers shall be
effective only to the maximum extent permitted by law.


Section 10.08. Payments.
All payments made by Holdings pursuant to this Article X shall be made
in Dollars and will be made without setoff, counterclaim or other defense, and
shall be subject to the provisions of Sections 2.19 and 2.20.


Section 10.09. Maximum
Liability. It is the desire and intent of Holdings and the Guaranteed
Creditors that this Holdings Guaranty shall be enforced against Holdings to the
fullest extent permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. If, however, and to the extent
that, the obligations of Holdings under this Holdings Guaranty shall be
adjudicated to be invalid or unenforceable for any reason (including, without
limitation, because of any applicable state or federal law relating to
fraudulent conveyances or transfers), then the amount of Holdings’ obligations
under this Holdings Guaranty shall be deemed to be reduced and Holdings shall
pay the maximum amount of the Guaranteed Obligations which would be permissible
under applicable law.


*     *     *


 


161

















 


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


	
   

  	
  WINDY CITY INVESTMENTS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Peter H.
  D'Arrigo

  
	
   

  	
   

  	
  Name:  Peter H. D'Arrigo

  
	
   

  	
   

  	
  Title:  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WINDY CITY ACQUISITION CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Timothy
  M. Hurd

  
	
   

  	
   

  	
  Name:  Timothy M. Hurd

  
	
   

  	
   

  	
  Title:  President

  



 

















 


	
   

  	
  DEUTSCHE BANK AG, NEW YORK

  BRANCH, Individually and as

  Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Paul
  O'Leary

  
	
   

  	
   

  	
  Name:  Paul O'Leary

  
	
   

  	
   

  	
  Title:  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Erin
  Morissey

  
	
   

  	
   

  	
  Name:  Erin Morissey

  
	
   

  	
   

  	
  Title:  Vice President

  



 

















 


	
   

  	
  NUVEEN INVESTMENTS, INC. HEREBY

  ABSOLUTELY, IRREVOCABLY AND

  UNCONDITIONALLY ASSUMES ALL

  PAYMENT AND PERFORMANCE

  OBLIGATION OF WINDY CITY

  ACQUISITION CORP. UNDER THE

  LOAN DOCUMENTS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NUVEEN INVESTMENTS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Peter H.
  D'Arrigo

  
	
   

  	
   

  	
  Name:  Peter H. D'Arrigo

  
	
   

  	
   

  	
  Title:  Vice President

  



 

















 


	
   

  	
  SIGNATURE PAGE TO THE CREDIT

  AGREEMENT DATED AS OF THE DATE

  FIRST WRITTEN ABOVE, AMONG

  WINDY CITY INVESTMENTS, INC.,

  WINDY CITY ACQUISITION CORP. (TO

  BE MERGED WITH AND INTO NUVEEN

  INVESTMENTS, INC.), THE LENDERS

  PARTY HERETO FROM TIME TO TIME,

  DEUTSCHE BANK AG, NEW YORK

  BRANCH, AS ADMINISTRATIVE

  AGENT, AND DEUTSCHE BANK

  SECURITIES INC., WACHOVIA

  CAPITAL MARKETS, LLC, MERRILL

  LYNCH, PIERCE, FENNER & SMITH

  INCORPORATED AND MORGAN

  STANLEY SENIOR FUNDING, INC. AS

  LEAD ARRANGERS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NAME OF INSTITUTION:

  
	
   

  	
   

  
	
   

  	
  Morgan Stanley Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Daniel
  Twenge

  
	
   

  	
   

  	
  Name:  Daniel Twenge

  
	
   

  	
   

  	
  Title:  Authorized Signatory

  


















	
   

  	
  SIGNATURE PAGE TO THE CREDIT

  AGREEMENT DATED AS OF THE DATE

  FIRST WRITTEN ABOVE, AMONG WINDY

  CITY INVESTMENTS, INC., WINDY CITY

  ACQUISITION CORP. (TO BE MERGED

  WITH AND INTO NUVEEN INVESTMENTS, 

  INC.), THE LENDERS PARTY HERETO

  FROM TIME TO TIME, DEUTSCHE BANK 

  AG, NEW YORK BRANCH, AS

  ADMINISTRATIVE AGENT, AND

  DEUTSCHE BANK SECURITIES INC., 

  WACHOVIA CAPITAL MARKETS, LLC,

  MERRILL LYNCH, PIERCE, FENNER & 

  SMITH INCORPORATED AND MORGAN 

  STANLEY SENIOR FUNDING, INC.  AS 

  LEAD ARRANGERS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NAME OF INSTITUTION:

  
	
   

  	
   

  
	
   

  	
  Merrill Lynch Capital Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John C. Rowland

  
	
   

  	
   

  	
  Name:  John C. Rowland

  
	
   

  	
   

  	
  Title:  Vice President

  


















	
   

  	
  SIGNATURE PAGE TO THE CREDIT

  AGREEMENT DATED AS OF THE DATE

  FIRST WRITTEN ABOVE, AMONG WINDY

  CITY INVESTMENTS, INC., WINDY CITY 

  ACQUISITION CORP. (TO BE MERGED 

  WITH AND INTO NUVEEN INVESTMENTS,

  INC.), THE LENDERS PARTY HERETO 

  FROM TIME TO TIME, DEUTSCHE BANK 

  AG, NEW YORK BRANCH, AS 

  ADMINISTRATIVE AGENT, AND 

  DEUTSCHE BANK SECURITIES INC., 

  WACHOVIA CAPITAL MARKETS, LLC, 

  MERRILL LYNCH, PIERCE, FENNER & 

  SMITH INCORPORATED AND MORGAN 

  STANLEY SENIOR FUNDING, INC.  AS 

  LEAD ARRANGERS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NAME OF INSTITUTION:

  
	
   

  	
   

  
	
   

  	
  Wachovia Bank, National Association

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Grainne M. Pergolini

  
	
   

  	
   

  	
  Name:  Grainne M. Pergolini

  
	
   

  	
   

  	
  Title:  Director